WHENRY et al v. BOARD OF COMMISSIONERS, COUNTY OF MERCER et al
Filing
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Opinion and Order granting in part and denying in part 12 Motion to Dismiss for Lack of Jurisdiction; denying [] Motion to Stay. Signed by Judge Maurice B. Cohill on 9/8/2014. (cag)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYL VANIA
DOYLE WHENRY, et aI.,
Plaintiffs,
v.
BOARD OF COMMISIONERS, et aI.,
Defendants.
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Civ. No.2:14-cv-667
Judge Maurice B. Cohill
OPINION
Pending before the Court is a Motion to Dismiss for Lack of Jurisdiction pursuant to Rule
12 of the Federal Rules of Civil Procedure or in the Alternative Motion to Stay Proceedings
[ECF No. 12] filed by the Board of Commissioners of Mercer County ("Defendants").
On May 22, 2014 Plaintiffs, fifty-seven (57) individuals, joined later by nine more
individuals who consented to opt in (collectively referred to as "Plaintiffs"), filed a Complaint in
Civil Action [ECF No.1] under the Fair Labor Standards Act ("FLSA") for unpaid wages for
mandatory on-the-job time prior to roll call. Plaintiffs are all employed, or were formerly
employed, as corrections officers by Defendants [ECF No.1 at 8]. The Complaint alleges at
Count I, a Violation of Section 7(k) of the FLSA (29 C.F.R. § 553.221) and at Count II,
Retaliation under the FLSA at 29 U.S.C. § 215(3) [ECF No.1]. Plaintiffs seek judgment against
Defendants for (a) those sums that may be found to be due and owing to Plaintiffs; (b) for an
amount equal as liquidated damages; (c) for interest thereon; (d) for reasonable attorneys' fees;
(e) for costs of the sui t; and (f) for such other and further relief as the Court may deem proper and
just [ECF No.1 at 10],
On July 21, 2014, Defendants filed their Motion to Dismiss or in the Alternative to Stay
the Proeeedings and a supporting Brief[ECF Nos. 12 and 13], alleging that Plaintiffs' claims are
covered under a Collective Bargaining Agreement ("CBA") and that they failed to exhaust the
mandatory administrative remedies as stipulated in the CBA [EeF No. 13 at 5]. Therefore, they
argue the lawsuit should be dismissed for lack of subject matter jurisdiction. In the alternative
the Defendants request that the ease be stayed until administrative remedies are exhausted.
Defendants also allege that the retaliation claim has no merit because there was no actual
retaliation only an alleged threat of retaliation [ECF No. 13 at 16].
On August 13,2014, Plaintiffs filed their Brief in Opposition to the Motion to Dismiss
rECF No. 19] stating that their claims fall out of the purview of the CBA because the CBA terms
are contrary to federal law. Therefore, they are not required to adhere to the administrative
remedies as set forth in the CBA. Furthermore, Plaintiffs allege that an arbitrator does not have
the authority to enforce federal law such as the FLSA [ECF No. 18 at 3]. Plaintiffs also assert
that the statements made by Defendants' attorney, which they claim to be retaliatory, could have
dissuaded Plaintiffs from bringing suit and, therefore, the statements may be considered
retaliatory under the law. For the reasons set forth below, Defendants' Motion to Dismiss will be
denied.
I. Standard of Review.
In ruling on a Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction, a
court must dismiss the case if it determines at any time that it lacks subject-matter jurisdiction.
See Fed. R. Civ. Pro. 12(h)(3). The procedure under a motion to dismiss for lack of subject
matter jurisdiction necessitates a crucial distinction between 12(b)( 1) motions that attack the
complaint on its face and 12(b)( 1) motions that attack the existence of subject matter jurisdiction
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in fact, apart from the pleadings. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977). "The facial attack (offers] safeguards to the plaintiff: the court must consider
the allegations of the complaint as true. The factual attack, however, differs greatly for here the
trial court may proceed as it never could." Id. at 891.
Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction its very
power to hear the case there is substantial authority that the trial court is free to weigh
the evidence and satisfy itself as to the existence of its power to hear the case. In
short, no presumptive truthfulness attaches to plaintifTs allegations, and the existence
of disputed material facts will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of
proof that jurisdiction does in fact exist
ld.
"The relevant question ... in assessing plausibility is not whether the complaint makes
any particular factual allegations but, rather, whether 'the complaint warrant [s] dismissal because
it failed in toto to render plaintiffs' entitlement to relief plausible. '" Rodriguez-Reyes v. MolinaRodriguez, 711 F3d 49,55 (l51 Cir. 2013)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
569 n. 14 (1955)).
II. Relevant Facts.
Plaintiffs were represented by Teamsters Local 250 for collective bargaining and are
covered by a Collective Bargaining Agreement effective January 1,2009 through December 31,
2012 [See CBA as Exhibit I to Complaint at ECF No.1]. Though expired, it is undisputed that
the parties continue to operate under the terms of this CBA. The CBA provides, "A daily
mandatory roll call will be implemented and all employees are to report ten (10) minutes before
their actual shift begins. This time will not be paid time and will not be used in the calculation of
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overtime." [ECF No.1 at Ex. 1, CBA Art VII].
The CBA between the parties establishes a mandatory grievance and arbitration
procedure.
Should differences arise between the Employer and the Union as to the interpretation
or application or compliance with the provisions of this Agreement, or as to any
question relating to the wages, hours of work or other conditions of employment ...
an earnest effort shall be made to settle such differences immediately, in the
following manner and order of priority:
If the matter cannot be resolved internally through the first three steps, then parties shall proceed
in the matter described in the Fourth step.
Fourth: In the event the dispute thereby shall not have been satisfactorily settled, the
matter may, within five (5) working days, then be appealed to an impartial umpire to
be appointed by mutual agreement ofthe parties hereto. The decision of the umpire
shall be final. The Employer and the Union shall pay the expense and salary incident
to the services of the umpire jointly.
[ECF No.1 at Ex. 1, CBA Art XII].
Plaintiffs allege they have not been paid for the contractually required pre-roll call time
since at least January 1,2009 [ECF No.1 at 8] in violation of the FLSA. In addition, and related
to this claim, Plaintiffs allege that at a May 14, 2014 meeting regarding this law suit Defendants'
counsel stated that, "he reviewed the payroll records and that the Defendants would be required
to pay to the Plaintiffs the sum of $250,000.00 in back pay pursuant to this FLSA lawsuit and
that Defendants would recover the same amount from the employees through collective
bargaining." [ECF No. 13 at 3]. Plaintiffs characterize this statement as retaliatory in their
Complaint [ECF No.1 at 11]. We believe that argument is a "stretch."
Defendants assert that the roll call hours and related claim for payment in question are
governed by the CBA between Plaintiffs and Defendants [ECF No. 13 at 4], and the terms of
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grievance resolution under the CBA should dictate how the parties "litigate" to a remedy.
Plaintiffs disagree with Defendants that the CBA covers the wage issue and remedy but rather
assert that the FLSA applies and federal law can only be interpreted in a court of law and not by
an arbitrator.
III. Legal Analysis.
Defendants seek dismissal of this case which hinges on the issue of whether the CBA
contains terms that govern the issue of unpaid wages under the FLSA. Namely, whether the roll
call as stipulated in the CBA should be resolved through an arbitration process as described in
the CBA or in a court of law.
The Fair Labor Standards Act provides the following:
(b) Compensable hours of work generally include all of the time during which an
employee is on duty on the employer's premises or at a prescribed workplace, as well
as all other time during which the employee is suffered or permitted to work for the
employer. Such time includes aU pre-shift and post-shift activities which are an
integral part of the employee's principal activity or which are closely related to the
performance of the principal activity, such as attending roll call, writing up and
completing tickets or reports, and washing and re-racking fire hoses. (emphasis
added)
29 C.F.R. § 553.221 ("Compensable hours of work")
It is undisputed that this provision of the FLSA covers the employee Plaintiffs. Relying
on this provision the Plaintiffs assert, "It is disingenuous for Defendants to suggest that Plaintiffs
should file a grievance under the terms of the Collective Bargaining Agreement when the
Collective Bargaining Agreement contains the unlawful provision denying payment for time
spent during mandatory roll call. Plaintiffs'
recourse to enforce their rights under federal
law is to file suit in federal court." [ECF No. 18 at 4]. In this case, we agree with the Plaintiffs.
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Current case law certainly supports the principle that the use of arbitration, where
applicable, is appropriate where issues arise under the FLSA.
While Congress is free to mandate that actions arising under particular statutes be
heard in a judicial, as opposed to an arbitral, forum, there is little to suggest that
Congress intended to exempt FLSA claims from the requirements of the [Federal
Arbitration Act] FAA. Therefore, agreements to arbitrate FL SA claims are
enforceable pursuant to the FAA.
at *4.
"Thus, courts ordinarily defer to collectively bargained-dispute resolution procedures
when the parties' dispute arises out of the collective bargaining process." Id. at 736. "The Third
Circuit has articulated a 'strong presumption in favor of arbitration, ' holding that 'doubts
concerning the scope of arbitrable issues should be resolved in favor of arbitration.'" Tripp v.
Renaissance Advantage Charter School, 2003 WL 22519433 (E.D. Pa) (quoting Moses H. Cone
Mem'! Hosp. v. Mercury Constr. Corp., 460 U.S. 1,24 (1983)).
To reconcile the competing interests ofa strong federal policy in favor of arbitration
to settle disputes between employers and unions over provisions of a CBA with an
individual employee's statutory rights under the FLSA, we held that "[FLSA] claims
which rest on interpretations ofthe underlying collective bargaining agreement must
be resolved pursuant to the procedures contemplated under the [Labor Management
Relations Act] LMRA, specifically grievance, arbitration, and, when permissible, suit
in federal court."
Bell v. Se. Pennsylvania Transp. Auth., 733 F.3d 490, 494 (3d Cir. 2013)
Our Court is tasked with determining whether the Plaintiffs FLSA issue is covered under
the terms of the relevant Collective Bargaining Agreement. The threshold question of whether a
dispute is arbitrable is a matter properly decided by this court. See AT&T
T~chs.,
Inc. v.
CommunicatiQI1s Workers of Am., 475 U.S. 643, 649 (1986); see also Smith v. Cumberland
Group, Ltd., 455 Pa. Super. 276, 687 A.2d. 1167, 1171 (1997). Under Pennsylvania Law, the
question of "whether a party agreed to arbitrate a dispute is a jurisdictional question that must be
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deeided by a court." Smith, 687 A.2d at 1171. "Due to the 'federal policy in favor of
arbitration,' however courts need only engage in a 'limited review' to ensure that a dispute is
arbitrable." Tripp, 2003 WL 22519433 at 2 (quoting John Hancock Mut. Life Ins. Co. v. Olick
151 F.3d 132, 137 (3d CiT. 1998).
When a district court is asked to compel arbitration, its inquiry is two-fold: "(1) Did the
parties ... enter into a valid arbitration agreement? (2) Does the dispute between those parties
fall within the language of the arbitration agreement?" Tripp, 2003 WL 22519433 at 2 (citing In
re Prudential Ins. Co. of Am. Sales Practice Litig., 133 F.3d 225, 233 (3d Cir. 1998)). With
regard to prong (1), it is undisputed that there is a valid CBA existing between Plaintiffs and
Defendants. With regard to prong (2) while it is clear that the roll call procedure is included as a
provision in the CBA and the provision requires employees to be present for 10 minutes of
unpaid time before the roll call, there is no "dispute" between the parties on this issue. In this
case both parties actually agree to the meaning of the roll call provision and its implementation.
In other words, there has been no breach of the agreement.
The case
ofB~llv.
Southeastern Pennsvlvania Transportation Authority, 733 F.3d 490
(3d CiT. 2013) is analogous and instructive to our case. In the Bell case public transit vehicle
operators brought a class action suit against the transit authority under the FLSA. They were
seeking to recover unpaid wages and overtime compensation for work performed during morning
"pre-trip" inspections. The District Court granted the transit authority's motion to dismiss, ruling
that the FLSA claim was subject to the grievance and arbitration provisions of operators'
collective bargaining agreement. The Operators appealed. The Third Circuit vacated and
remanded because the Operators FLSA claim existed independently of any rights they had under
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their respective CBAs.
at 495. We believe the same reasoning applies in this case. In the
case at issue, the Plaintiffs claim they are not being compensated for 10-15 minutes of time
before roll call, which is stipulated in the CBA. This alleged failure does not call for a resolution
of the applicability of the contractual provisions of the CBA, but rather requires a review of the
facts under the law of the FLSA. "[1]f an FLSA claim depends on the disputed interpretation of a
CBA provision, an employee must first go to arbitration ~.~ through a representative union
before vindicating his or her rights in federal court under the FLSA." Id. at 494. Here we have
no such situation as there is no dispute in interpretation of the CBA.
If the parties were to submit this case to arbitration for review of the CBA roll call
provision, there would be no effect on the Plaintiffs' FLSA claim. The arbitrator "is hired to read
the contract, determine the parties' mutual intent, and enforce the contract as written. See
Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574 (1960); Steehyorkers v. Enterprise Wheel & Car Co., 363 U.S. 593
(1960). Accepting the facts alleged in the Complaint as true, the Plaintiffs are not being paid for
compensable time at work. Though the arbitrator may find that a provision in the CBA provides
for that scenario, it does not require the Plaintiffs to waive their right to statutory relief See id.
at 496. Based on our review of the case law, we find the case is properly before us and will deny
the Motion to Dismiss as to Count 1.
With regard to Plaintiffs' retaliation claim at Count II of the Compliant, Plaintiffs must
satisfy three prongs to prove unlawful discriminatory retaliation under the FLSA (29 U.S.c.
§ 215(a)(3): (1) The plaintiff engaged in a protected activity; (2) the employer took adverse
action against them either contemporaneously with or subsequent to the protected activity; and
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(3) a causal connection existed between the activity and the employer's action. See Vargas v.
General Nutrition Centers, Inc., 2011 WL 43020, *4 (W.D. Pa. Jan. 6,2011); Dougherty v.
Ciber, Inc., 2005 WL 2030473, *2 (M.D. Pa. July 26, 2006). In this case Plaintiffs engage in the
protected activity of filing a Complaint, however, according to the Defendant's Reply Brief [ECF
No. 19 at 6], the alleged threat made by Defendant's counsel was made eight (8) days before the
filing of the Complaint and not subsequent to its filing. Furthermore, this Court finds it quite a
stretch to determine that the threat of adverse action could be considered an action itself. In this
case, where the Plaintiffs were not dissuaded by the alleged threat, and in fact filed their
Complaint, there was no damage suffered by the alleged threat. This makes it difficult to find a
causal connection between the filing of the Complaint and the "adverse employment action" of
the threat. Based on this analysis the Court will dismiss Count II of the Complaint.
IV. Conclusion.
Because there is no breach or dispute of the Collective Bargaining Agreement at issue in
this case, and because the elaim is pursuant to the federal law of the Fair Labor Standards Act,
this ease is properly before this Court, and Defendant's Motion to Dismiss as well as Defendant's
Motion to Stay as to Count I will be denied. However, because we find that Plaintiffs' have not
satisfied the elements of a discriminatory retaliation claim under Section 21S( a)(3) of the FLSA,
Defendant's :Motion to Dismiss as to Count II of the Complaint will be granted.
An appropriate Order follows.
&,Acl Hi, Cohill, Jr.
8. Co e.astl~ .
Maurice B.
September..i: 2014
Senior District Court Judge
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