Appendix — Iowa Beef Packers, Inc. v. Thompson

IN THE.

‘Supreme Court of the United States

Oorormn Tzem, 1971 „

q.

<a No- 70.286

Towa BEEF PACKERS, moe P Petitioner |

v.

EDWARD D. THOMPSON, ET AL., Respondents

errr

. Other Sections of Collective Bargaining Agreement . 431

N THE

; W Court of the United States

Ooronnn Tum, 1971 s

4

No.. 70:286

IOWA BEEF PACKERS, INC, Petitioner

V.

EDWARD D. THOMPSON, ET AL, A

1

—

ON WRIT OF CERTIORARI TO THE

SUPREME OOURT OF. 10WA

ye

2 ; 5 ges Page

Docket Entries (or dates) „ Al.

1 ebe e 42.

A err vb 44

Motion for Separate Adjudication of Law Points. tee A6 \.:

| Ruling Denying Petitioner’s Motion To Dismiss ...:. A.7 _ *

Final udgment and Decree of Trial Court Coe oe

Order of Supreme Court of Towa To Consolidate 14: 2

Cases .. 6 6 „„ „%% A. 11 5

Order of Supreme Court of Iowa, Granting Stay 412

Majority Opinion by Supreme Court of Iowa ;;..... , A.13 45

Dissenting Opinion by Supreme Court of N — 4.20 7 .

Some Sections of Collective Bargaining Agreement . 4

(requested by respondents) vim

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Record

‘ er 5

Apr. 28, 1967—Petitions s filed (by 13 plaintiffs) . R. 3 „

Dee. 12, 1967 Petition filed by the 14th plaintiff . = 3

May , 1967—Requests wt Defendant for Admis- _ xa

a RO R. 4

Sept. 1967 Reply to W for Admissions , R. 4

Sept., 1967—( Answer by Defendant, raising. . . R. 4 N

ö 5 (the Federal question here at issue R. 5

(Collective Bargaining Agreement R. 5-8

2 Sept. 19, 1967 Motion far fi sce of Law

Point R. 8 .

Mar. 5, 1968 Order N that Motion ; #5 R.9 . . ;

1968—Trial and Evidence .............. R.9

1968—Consolidation of 14 cases for trial. R. 9

Feb. 5, 1969 Findings, Conelusions and J eam R. 40-46

Oct. 20, 1969—Final J udgment and Decree ‘...... R. 46-48

Nov. 18, 1969—Notice of Appeal by Defendant ... R. 48-49

May 20, 197 0—Consolidation of 14 cases on Appeal A. 11

July 16, 1970—Brief by Appellant ma: .

Aug. 17, 1970 rief by Appellees filed

Sept. 14, 1970—Reply Brief by Appellant

Nov. 13, 1970—Cause submitted to Supreme Court rh

Apr. 9, i971—Opinions by Iowa Supreme Court . . 13

Apr. 29, 1971 Order for stay (to allow petition

bor writ) te 462452 22 „0 . AB

a oo 5 AQ:

„ w THE-DISTRICT COURT OF IOWA

| IN AND FOR CRAWFORD COUNTY

(This! is one def! 14 Petitions, all identical t for arnounts

claimed. The Caption in Full, after Consolidation of the

cases, is shown at A. 7 herein and in all ‘duigments uu

* and orders.) Sos sbierverct, ry ae

; 0 Jauxs R. Moraax, Plaintiff, 5

. Vs 9 | N * . ;

Towa Brrr PACKERS, Ixo, Defendant.

: Petition at Law

- Plaintiff for cause of action states:

1. That Plaintiff i is a resident of Crawford County, State

of Iowa. . 2

¢

a Plaintiff brings this action to recover trom Defendant |

unpaid wages and overtime compensation in the amount

of $1,487.16, and an additional equal amount of liquidated

damage and a reasonable attorney fee, pursuant to Section

16 (b) of the Fair Labor Standards Act of 1938 as amended -

(U.S. C. Title 29, Sections 201-219), hereinafter referred ar

to as the Act. |

3. Jurisdiction is conferred | on the Cox by. Section

16(b) of the Act (U.S.C. Title 29, Section 2 6b).

4. At all times, r mentioned, the Defendant

- was and is a Corporation organized and existing under and

by virtue of the laws of the State of Iowa, and at all times,

-- hereinafter mentioned, Was engaged at Denison, Crawford

County, Iowa, and elsewhere in the operation of packing

i Plants where domestic animals are slaughtered, butchered,

dressed, and prepared for market and meat products, and

meat by-products are manufactured and produced for in-

terstate commerce within the meaning of the Act. Subst

sod all of the goods — ad the Defendant, during

re eee: dos 35

7 wes soa Me A3

|

the ‘times: pene: tte d hae bes sold, offered 1 5

transportation, transported, shipped and delivered in in-

terstate commerce with knowledge that shipment delivery

or sale thereof in interstate commerce was intended from

the Defendant’s places .of business at Denison, Iowa, and

elsewhere, to various points outside the State of Iowa.

The volume of such production, sale, shipment and delivery

was and i is not less than $1,000,000.00-annual gross volume.

6. That during the work. Weeks beginning at a time ‘not

earlier thai two years before the filing of this com oa

and ending on the 28th day of, April, 1967, the Defen

employed the Plaintiff in thé maintenance, den af

the Defendant’s plant in Denison, Iowa. That the services)

performed by the Plaintiff were necessary and an intégral

part of and directly essential to the Defendant’s business

and to the production of the commodity” shipped 7 the

Defendant i in interstate commerce. 5

7.

7. That the duties performed by the Plaintiff consisted,

among other things, of maintaining and repairing plant

equipment and machinery so as to keep said equipment

and matHinery in good running order, and in order. to

perform these duties to the satisfaction of the Defendant,

. ‘the Plaintiff was required to be on call during his alleged

thirty minute meal period of each work day. That the

Plaintiff being on call during. his akeged meal time was

and is a necessary and. an integral part of the Defendant’s

operation, and required the Plaintiff to be on duty an

additional one half hour each day in addition to the regular

forty hour week, but the Defendant refuses to pay Plaintiff

for this time. That the Plaintiff should be compensated for

this time at the rate of one and ‘one-half. times wat regular

hourly rate.

2

8. That during such tinie Plainiiff 3 forty hours“

or more each week, not including said’ ‘daily thirty minutes

period and said thirty minute daily period is additional

time worked over — hours a — and Defendant has | |

2

2

2

Defendant.

: ö os AA 0

failed and refused to compensate Plaintiff for said time

worked at rates not less than one and one-half times the

rates at which he was employed, as required by

Section J. of the Act. Plaintiff was accordingly underpaid

the sum

of $2.43 for each thirty minute period above re-

or the sum of $1,487.16 for the said period.

-. % That i has boon near for the Plaintiff to aue,

and he has engaged, the services of attorneys to file and

prosecute this action. Affidavit for attorney fees is hereto

attached marked Exhibit A“.

Wr uxrORx, Plaintiff prays that judgment be awarded

him in the amount of $1,487.16 unpaid wages and overtime

compensation, and for an additional amount as liquidated

damages, together with costs; and that the Court allow — |

Plaintiff. 4 reasonable attorney’s fee to be paid by the

} /8/ Tames R. Moran

* (Formal verification omitted in printirig)

2

IN THE DISTRICT COURT OF IOWA —

IN AND FOR CRAWFORD COUNTY

(This is one of 14 Answers, all identical. The its in

Full after Consolidation of the 14 cases, is shown at

A.7 herein and in all judgments and orders.)

| (Caption omitted in printing)

Comes Now the Defendant and for Answer to Plaintiff’s

Petition states: ' > .

1. Defendant does not et the . of

Paragraph 1.

2. Defendant admits that the action is brought for the

stated in Paragraph 2 of the Petition but denies

~~

purposes

F hee toeen Che Divan to Cy Petaate |

3. Defandant admits the allegations of Paragraph 3,

subject, however; tothe affirmative defense alleged in

Paragraph 10 of this Answer. ä f

Defendant does not controvert the allegations of

Paragraph 4. Ae toe

5. There is no Paragraph:5 in the Petition and accord-

ingly no Answer can be given.

6. Defendant does not controvert the allegations of Para-

graph 6.. * f .

~ 7. Defendant admits that the duties performed by the

Plaintiff consisted, among other things, of maintaining and

repairing plant equipment and machinery so as to keep

said equipment and machinery in good order, but denies

that Plaintiff was required to be on call during his thirty

(30) minute meal period of each work day in order to

perform the duties to the satisfaction of the Defendant,

or for any other reason. Defendant states affirmatively

that Plaintiff was not required to be on call during his

thirty (30) minutes meal period and that Plaintiff on every

work day was allowed thirty (30) minutes to eat his meal.

Defendant denies all the remaining allegations of Para-

graph 7.

F Defendant nt that during the time in? in the

Petition the Plaintiff worked forty (40) hours or more

during every week, but admits that such would be true as

to most of the weeks. Defendant admits that it has failed

and refused to compensate Plaintiff for the time claimed

in the 3 and that if such pay were due, in most weeks

it wo at rates not less than one and one-half times

the regular rate at which he was employed, as'required by

Section 7 of the Act but expressly denies that any such

sums are due to the Plaintiff. Defendant denies the remain”

ing allegations of Paragraph 8. |

9. Defendant that it has been necessary for the

Plaintiff to engage e services of attorneys to file and

*

AS

prosecute this action, but admits that he has engaged such

services and admits the Affidavit for Attorney Fees was

attached to the Petition and marked Exhibit A“.

1.0. Plaintiff states affirmatively that it is now admitted

upon this record that Plaintiff’s employment at Defendant’s

plant in Denison was covered by Collective Bargaining.

Agreements at all times material herein between Associ-

ated Employees Organization and Defendant and that

Exhibit A“ attached to the Request For Admissions is

a true and correct copy of the Collective Bargaining Agree-

ment for the time specified therein and that Plaintiff did

not take any of the Steps permitted under the Grievance

Procedures of the Collective Bargaining Agreements. Ac-

cordingly Plaintiff having failed to exhaust such Grievance

Procedures is not entitled to bring this action and this

action should be dismissed for such failure. :

Wuerzroze Defendant prays that Plaintiff’s action be

dismissed at Plaintiff 8 costs. | ;

f 5 P. L. Nyman

P. O. Box 248

Dakota City, Nebraska 68731

Attorney for Defendant

IX THE DISTRICT COURT OF IOWA

a AND FOR CRAWFORD COUNTY

(This i is one of 14 Motions, all en . omitted

in printing.) .

Motion for Separate Adjudication of Law Points

Couns Now the Defendant and moves the Court to sepa-

rately hear and determine t of law raised in Para-

graph 10 of its Answer, by Rule of Civil Pro-

cedure 105, because said point of law raises a legal issue

directed to substantially the whole if not the whole of the

AT : ;

Plaintiff’s alleged cause.of action and adjudication favor-

ably to the Defendant will dispose of substantially all, if

not all, of the case. 1 b 5

; P. L. Nymanw

P. O. Box 248

Dakota City, Nebraska 68731

Attorney for Defendant °

° IN THE DISTRICT COURT OF IOWA

IN AND FOR CRAWFORD COUNTY

Ruling of Trial Court Denying Petitioner's Motion to Dismiss

No. 21894—Law Applicable to Law Nos. 21895,

21896, 21897, 21898, 21899, 21900, 21901, 21902,

_ 21908, 21904, 21905, 21906, 22106 :

Epwanp D. Tuompson, Jay Nowen, Kenwern A. Hanpez,

Doxalo J. Sporner, Lawzence W. Kenwepy, Alana

Weaver, James B. Moncaw, Vat Jean JoHANNsEM,

Raymonp James Jounson, Luverne M. Horrman, Canon

8 W. Vewmicx, Bux J. Lackman, Larry Jus Lannisox,

l Lawrence J. Kasera, Plaintiffs,

v. 2

Iowa Brey Pacxzns, Ixo., Defendant.

Before the Howonastz A. J. — Judge. 2

Ruling filed March 5, 1968 (in each of 14 cases).

On Motion for Separate Adjudication of Law Points

(motion filed September 19, 1967). aes

The defendant is asking the court to determine the points

of law raised in paragraph 10 of it’s answer. (sic)

In this action the plaintiff is seeking compensation for

30 minute meal periods for which he has not been compen-

sated. Plaintiff asserts that in the performance of his

Naw

“

o

1

duties in his employment by the defendant he was required

to be subject to call during said meal periods, and that by

reason of his Being subject to call, said period of time was

and is a necessary and integral part of defendant’s opera-

tion and therefore such periods are compensable under the

act. Defendant -admits plaintiff was not paid for such

periods, and asserts that plaintiff was not required to be

subject to call during said periods and such periods of time

are not compensable.

If upon trial it was found that under the act such 30

minute meal periods are compensable, the fact that his

employment in defendant’s plant was subject to a collective

- bargaining agreement or that plaintiff did not proceed as

provided under the grievance procedures of such agree-

ment and thus failed to exercise the grievance provisions of

the agreement, such does not preclude recovery by the

plaintiff for wages due for work which is compenshble

under the act, and it follows that defendant would not be

entitled to have plaintiff’s case dismissed as 297 1 in

paragraph 10 of it's answer. (sio)

This court determines that the right of recovery for work

performed which is compensable under the provisions of

the Fair Labor Standards Act of 1938 as amended, cannot

be restricted, abrogated or nullified by any agreement en-

tered into by an employee and employer, or by employees

with their employér, or by and through a collective bar-

gaining agreement entered into with the employer and the

representative of the employees.

By the Court: (signed) 1 J. Bnaix rox,

Judge.

4⁰

rial Judgment and Decree of Trial Court

* 7 a .

IN THE DISTRICT COURT OF 10WA

IN AND FOR CRAWFORD COUNTY

No. 21894—Law Applicable to Law Nos. 21895,

21896, 21897, 21898, 21899, 21900, 21901, 21902,

21903, 21904, 21905, 21906, 22106 |

Epwarp D. THOMSON (and 13 others), Plaintiffs,

‘ 0 a .

v. :

Iowa Ban Packers, Inc., Defendant.

Before the Honorable A. J. Bracrxtow; Judge.

On October 20, 1969, there was filed ö

FINAL JUDGMENT AND DECREE

On the 5th day of February, 1969, this court entered a

judgment determining that the Plaintiffs are entitled to

recover for their one-half hour lunch period at the appli-

cable wage scale or rate as such maintenance employees

of the Plaintiff for such time as they were so employed

by the Defendant company during the twogear period

immediately preceding the commencement of their respec-

tive actions. se bod a Bir 95

On July 8, 1969, as the result of a motion to amend and

enlarge the findings and to modify the judgment, this court

directed the parties to submit the hours of employment and

tate of pay pertaining to each Plaintiff under the judg-

ment entered herein on February 5, 1969, and the court

therein determined that none of the Plaintiffs have shown

, themselves to be entitled to liquidated damages. :

On the 15th day of September, 1969, this court by order

‘directed that a hearing be held on this date relative to tlie

matter of the attorney fees, and on this date the parties

have filed a stipulation in which the basic compensation of

Sot

A.10 2 | ; rte

each of the Plaintiffs was fixed for the purposes - of th

suit without waiving any right of appeal, At said hearin

the court approved certain attorney fees in respect

each of the cases.

I n Tumnerore Orperep, Abo vpn anv DronARD BY THE

OCovnr that the Plaintiffs in each of their respective cases

have and recover from the Defendant the amounts herein-

below set forth after their names, and in each of the re-

speetive cases the Plaintiff shall have and recover the total

judgment as shown therein, with interest at the legal rate

from and after February 5, 1969, together with the costs i =

each action to be > be entered by the clerk.

Basic Attorney Total

— . 1 Compensation Fees Judgment

Edward D. Thompson F, 261.33 $200.00 . 61,461.33

Jay Nollen 1,288.87 200.00 1,488.87

Kenneth A. Harder 244.82 150.00 394.82

Donald J. Sporrer 1.38.44 200.00 1,538.44

Lawrence W. Kennedy 1, 338.44 200.00 = 1,538.44

‘Albert Weaver 1,228.87 200.00 1,488.87

James R. Morgan 1,338.44 200.00 1., 538.44

Val Jean Johnannsen 1,338.44 200.00 1,538.44

Raymond James Johnson 1,338.44 200.00 .- 1,538.44

Luverne M. Hoffman 1,338.44 200.00 1,538.44

Carol W. Vennink 1,261.33 200.00 1,461.33

Ben J. Lackman 1,261.33 . 200.00 1,461.33

Larry James Larrison 658.48 150.00 808.48

Lawrence J. Kabela 27412 15000 . 424.12

The clerk is hereby ordered and directed to enter judg-.

ment in favor of the Plaintiff in his respective action against

the Defendant for the basic compensation and attorney fees

as above set out, together with the costs in said action, said

judgment to bear interest at the legal rate from February 5,

1969.

By the Court: (signed) A. J. —

Judge.

3

4.11

-es Couto Towa em. ue.

IN THE SUPREME COURT OF IOWA

21896, 21897, 21898, 21899, 21900, 21901, 21902,

21903, 21904, 21905, 21906, 22106 :

Epwarp D. Petia: Jay Nollxx, Kennet A. Hanns,

Dowatp J. Sporrer, Lawnence W. Kennepy, ALBERT

| Weaver, James R. Morcan, Va Jgan JoHANNSEN,

RayMonpD JaMEs JoHNsON, Luvxnx M. Horrman, Canon

W. Vennick, Ben J. Lackman, lider James LagRison, —

Lawrence J. KnRLA, Plaintiffs, * ?

* v. „

* : 1 Bun L Ino, Defendant.

May 20, 1970.

ORDER OF CONSOLIDATION

And now on this 20th- day of May, 197%, there having

been presented to the undersigned, one of the Justices of

the Supreme Court of Iowa, a joint Motion by all parties

for the consolidation of these cases on appeal, with a

Waiver of notice of. hearing by all parties ;

And it appearing that for good cause shown the cases

should be consolidated for purposes of appeal.

For the Court: (signed) Maurice E. Rawls

Justice of Supreme Court of Iowa

2 5 ͤ

— Couat of owt, Geunting Stay

15 aun enden COURT or IOWA

Filed April 29, 1971

Order Granting Stay

213 ar ye

S038

2 : o*

Rowan D. THoMPsoN, Jax . Kennets A. Getic.

Dowarp J. Sronuun, Lawrence W. Kennepy, ALBERT

; Weaver, James R. Morgan, Vat Jean JoHannsen,

/ Raymond James Jonnson, Luverne M. Horrman, Caro

W. Vewnick, Ben J. Lackman, Larry JAMES. LagRison, 33

e J. KAbrla, Appellees, ©

V.

Iowa Ress Packxns, Appellant.

Now on this 29th day of April, 1971, defendant’s appli-

cation to stay execution of procedendo herein, having come

on for hearing pursuant to prior order, defendant-applicant

having appeared by Attorney Louis S. Goldberg, of Sioux

City, Iowa, plaintiff having appeared by Attorneys E. A.

Raun and Michael Mundt, of Denison, Iowa, arguments

were duly pre. presented, the matter submitted and taken

under advisement. —

It Is Now Onperep, 3 AND Deckman that execu-

tion of procedendo herein be and is hereby stayed for

seventy (70) days from date hereof to allow defendant-

applicant to petition the Supreme Court of the United

States of America for review, and

Ir Is Furtner OnbERRD in the event such . be not

filed within the aforesaid time, procedendo shall issue upon

expiration of said seventy (70) day period, .

4.13

_ Ir Is Funruen Onpenzp, in event such petition be so filed

© within the time above prescribed, then the aforesaid stay

shall remain in effect until the Supreme Court of the

- United: States of America shall have finally acted upon

such petition for review, and (1). if denied then procedendo

shall thereupon issue, (2) if granted said stay shall be and

remain in effect until the matter shall have been finally

determined by the Supreme Court of the United States

of America, and

* + J. . = 85

Ir Is Furtuer ORDERED, for good cause shown, bond is: “ce

hereby waived. ä

Dos this 29th day of April, 1971, in Sioux City, Iowa.

(signed) Maurice E. Raw1inas )

J ustice, Supreme Court of Iowa.

‘Majority Opinion by Supreme Court of Iowa

IN THE SUPREME COURT OF IOWA

Filed April 9, 1971

_ 2B

Epwanb D. THoMrsoy, Jay Noun, Kenwern A. Hunonn,

Dowatp J. Spoken, Lawnence W. Kennepy, Apert -

Weaver, James R. Morcan, Vat Jean JOHANNSEN,

Raymonn James J. OHNSON, Luverne M. Horrxax, Caron

W. Vewnick, Ben J. Lackman, Lanny James Lanpison,

LawRENcE J. KABRLa, Appellees, see

— ; 3 V. . 85

Iowa Bar Packers, Appellant. ‘i

Appeal from Crawford District Court—A., J. Bracinton,

Judge. 2 * ren.

Appeal from judgment for plaintiffs for overtime com- |

pensation under Fair Labor Standards Act.—Affirmed, .

oe AS

P. L. Nyman, of Dakota City, Nebraska, for appellant.

Raun & Franck, of Denison, for appellees.

33

- Unwennoprp, J.

.. .. The main question presented in this appeal is whether

— „ workmen are required to attempt contract arbitration be-

fore they can sue for overtime compensation under the Fair

Labor Standards Act (FLSA), 29 U.S. C. A. 88 201-219.

The case was tried by ordinary proceedings without a

jury. From the evidence the trial court could reasonably

find that plaintiffs were maintenance men in defendant’s

plant near Denison, Iowa, during the. period in question

from April 28, 1965,-to April 28, 1967: The plant was fairly

new. During the first years many breakdowns occurred,

hecessitating much work by the maintenance men to avoid.

costly down time.“ A bell was sounded when the men

were needed. After the plant had- been constructed, a

lunch room for the maintenance men was added just off the

‘kill floor so they could answer the bell more readily.

Under the contract between the union and defendant, the

men were supposed to have a thirty-minute lunch period.

The evidence clearly indicates, however, that until Febru-

ary of 1966, the lunch period existed more in name than in

fact. On numerous occasions the men were obliged to an-

swer bells during lunch. When they tried to eat lunch later,

they. would frequently be interrupted again by the bell.

Eventually one of the maintenance men undertook,griev-

4 ance procedure because he was not getting his lunch period.

This precipitated a meeting by defendant’s industrial rela-

tions officer with the maintenance men in February, 1966.

That officer instructed the men that they were free to leave

the premises during their lunch period. | Hae

The instructions appear to have been horiored by the em-

ployer more in the preach than in observance. Breakdowns

continued to occur, the production people needed. immediate

r —

ier dealt with the situation in a letter which was sent:

*

*. —

A.15

3

help from the. maintenance men, the bell continued to be

rung during lunch periods, and the maintenance men were -

expected to,.and did, respond. The situation did not in fact

change from what it-had been. A procedure for two shifts

of maintenance men was attempted, but did not prove

‘efficacious. — thre F e

On April 28; 196%, plaintiffs commenced this action for

compensation for their lunch periods during the p i

two years. Shortly thereafter, the industrial relations of-

to each maintenance man. That letter, however, related to

.. the future. an Sek

The collective bargaining contract between the union and

defendant provided grievance procedure including arbitra-

tion. The trial court overruled defendant’s contention that

the men had to arbitrate before they could sue, held on

the facts that the maintenance men were actually on call

during their lunch period for the two years in question;

and granted the men conpehsation accordingly. Defendant

appeals. „„ a Ee Sai,

Defendant makes three contentions here. First, the work-

men were not on call during lunch periods after the in-

structions were given in February 1966 to the effect they

could leave the premises during such periods. Second, one

of the workmen who said he always got his 30 minutes for

lunch at some time during the day could not in any event

claim he had not gotten his lunch periods. Third, the men

had to attempt arbitration before they could sue.

I. Defendant's first two contentions are primarily factual

and may be considered together. The trial court’s findings

of fact, if supported by substantial evidence, bind us. Rule

_ 844(f) (1), Rules of Civil Procedure.

The. legal prineiple regarding compensable time under

FLSA for being on call’: was announced in Armour d

Co. v. Wantock, 323 U.S. 126, 65 S. Ct. 165, 89 I. Ed. 118.

—

—

* 493 * *

Rendering Co., 54 Lab. Cas. Para. 31,876 (U.S. Dist. Ct.

N. D. Tex.); Hofler v. Spearin, Preston d Burrows, 51

Mise. 24 758, 273 N.Y.

the same thing could happen. They would have to answer

the bell then, too.“ Defendant’s witness Walker

somewhat similar admissions. Defendant’s witness O’Brien,

was installed in recent times, stated in ‘a letter that The

they had to run because the boilers dropped out;

Many will remember the loss of steam caused hours

ol time and lost profits; The maintenance men will

the long hard hour’ of work put in on the sump

under the coolers.”’ ce

As to the period subsequent to February 1966, the trial

6*

We cannot éustain defendant’s challenges to the findings

of fact. ,

stantive labor law applies. Humphrey v. Moore,

375 U.S. 335, S. Ct. 363, 11 L. Ed. 2d 370. The present

controversy is undoubtedly arbitrable. Donahue v. Susque-

hanna Colleries Co., 138 F.2d 3 (3rd Cir.). Agreements to

arbitrate may ordinarily be specifically enforced. United

_ Steelworkers of America v. Warrior Gulf Navigation Co,,

„363 U.S. 574, 80 8. Ct. 1347, 4 L. Ed. 24 1409, |

. As u general rule, federal labor policy requires that em- a

eee eee

4

public Steel Corp. v. Maddow, 379 U.S. 650, 85 S. Ot. 614,

18 L. Ed. 2d 580, These decisions are founded on § 301 (a)

of the Labor Management Relations Act of 1947 (LMRA),

29 U.S. O. A. 6188 (a). 3 i

*

*

In accordance with this general rule, federal courts of

appeal have held that employees must attempt to arbitrate

FLSA claims before they can come to court. Donahue v.

Susquehanna Colleries Co., supra; Watkins v, Hudson Coal

Oo., 151 F. ad 311 (ard Civ.) ; Evans v. Hudson Coal Co.,

168 F. 2d 970 (ard Cir.); Beckley v. Teyssier, 382 F. 2d 495

(9th Cir.). Some federal and state trial courts had previ-

ously held to the contrary. Annot., 24 A.L.R.2d 752,

The United States Supreme Court does not appear to

have spoken on the problem as to FLSA claims, but it

recently decided U.S. Bulk Carriers v. Arguelles, 91 8. Ct.

409, 27 L. Ed 2d 456 (U.S.). A federal statute which ante-

dates the Labor Management Relations Act, requires a

master or owner of a vessel to pay seamen promptly, fail-

ing which the seamen ‘are entitled to recover „two days

pay for each and every day during which payment is de-

layed . . . which sum shall be recoverable as wages in any

claim made before the Court... .” 46 U.S. C. A. § 596.

In Arguelles, a majority of the Court thought that statute

-indicated Congressional intent to permit a seaman to. sue

without first attempting arbitration, which prevailed over

Congressional intent favoring prior arbitration generally.

equal amount as liquidated

tainafet:”* Action to recover such amounts “‘may be Hin-

may being v court of competent jurisdiction.”* An employee ,

violations of FLSA requirements. § 17, 29 U.8.C.A. 5 217.

As stated, the federal decisions generally requiring arbi-

tration are founded mainly on § 301(a) of the Labor Man-

agement Relations Act, giving federal courts jurisdiction

to enforce collective bargaining contracts—ineluding arbi-

tration clauses of such contracts, We doubt that the general

Congressional intent favoring arbitration can stand against

the specific Congressional intent which is manifest in the

25 A.20

seaman’s act involved in Arguelles, as the Court held there,

then an intent to give workmen such an option is also mani-

fest in the. Fair Labor Standards 22

Affirmed.

Broxar, LeGnanp and Runs, ‘I. concur,

Mason, J. concurs in result,

Srvazt, J. and Moons, C. J. dissent,

Rawiinos, J. takes no part.

Dissenting Opinion by Supreme Court of Iowa

Srvazt, J., dissenting.

I respectfully dissent from division II and the result. As

a consequence, I would not reach the merits of the case.

Federal law applies. My study of the federal cases leads

me to conclude that plaintiffs were required to exhaust the

grievance procedures, including arbitration, contained in

the collective bargaining agreement covering the plant

where they were employed before they could institute this

action for overtime pay under the Fair Labor Standards

Act, 29 U.S. C. A. § 201-219 (FLSA).

“As a general rule in cases to which federal. law

applies, federal labor policy requires that individual

employees wishing to aésert contract grievances must

attempt use of the contract grievance procedure agreed

upon by employer and union as the mode of redress.

If the union refuses to press or only perfunctorily

- presses the individual’s claim, differences may arise as

to the forms of redress then available.“ Republic Steel

Corporation v. Maddoz, (1965), 379 Wan

8. Ot. 614, 13 L. Ed. 2d 580, 583.

Under federal law, agreements to arbitrate may be spe-

cifically enforced. Local Union No. 721 v. Needham Packing

Co, (1963), 254 Iowa 882, 885, 119 N. W. 2d 141, 142; United

es of Ae American Mfg. Co. .

A.21

U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 24 1408; United Steclwork-

ers of America v. Warrior Gulf Navigation Co. (1960),

363 U.S. 574, 80 S. Ot. 1347, 4 L. Ed 2d 1409; United Steel-

workers of America v. Enterprise Wheel and Car Corpora-

tion (1960), 363 U.S. 593, 80 8. Ot. 1358, 4 L. Ed. 1424.

An order to arbitrate the particular grievance

should not be denied unless it may be said with positive

assurance that the arbitration clause is not susceptible

of an interpretation that covers the asserted dispute.

Doubts should be resolved in favor of coverage.“

United Steelworkre of America v. Warrior & Gulf Navi-

gation Co., supra, 4 L. Ed. 2d at 1417-1418; quoted in

Local Union No. 721 v. Needham Packing Co. (1967),

160 Iowa 908, 912, 151 N. W. 2d 540, 543.

—— —

rather than out of the collective bargaining contract they

have the right to elect whether to file suit or follow the

grievance procedures in the agreement. The narrow issue

is whether a claim for overtime wages under the FLSA

is an exception to these general rules.

Although the United States Supreme Court has not

decided this issue, the federal circuit courts that have con-

sidered it hold grievance. proceduses must be exhausted

courts. Beckley v. Teyssier (9th Cir. 1964), 49 CCH Lab.

Cas. Par. 31,589, 332 F.2d 945; Evans v. Hudson Coal Co.

(3rd Cir. 1948), 14 CGH Lab. Cas. Par. 64,318, 165 F. 2d

970; Watkins v. Hudson Coal Co. (3rd Cir. 1945) 10 CH

Lab. Cas. Par. 62,761, 151 F.2d 311; Donahue v. Susque-

61,758, 138 F. 2d 3; Anno. 24 ALR. 2d 754, 764-766, 779.780.

_ Earlier New York and federal district court cases to the

contrary have not been followed. Bailey v. Karolyna Co.

(1943, DC NY), 50 F. Supp. 142, CCH Lab. Cas. Par. 61,550,

Voutrey v. General Baking Co, (1941, DC PA), 39 F. Supp.

/

A.22

974; Garrity v. Bagold Corp. (1943), 180 Misc. 120, 42

N. T. S. 2d 257, mod. on other grounds 257 App. Div. 353,

46 N.Y.S. 2d 637; McClintock v. Garment Center Capitol,

Inc. (1943), 112 NYJL 1022, CCH Lab, Cas. Par. 61,814;

Re City Bank Farmers Trust Co. (1943), 179 Misc. 770, 39

N.Y.S. 2d 842.

The FLSA does not provide that such rights shall be

enforced in the courts. If it did, a collective bargaining

agreement providing for arbitration would be ineffective.

In the absence of a specific prohibition, the parties may

agree between themselves how these rights shall be en-

forced.

Is there anything about the Fair 88 Standards

Act which removes claims under its terms from the

arbitration clause? We may concede that Congress

could have done so had it wished. It could have pro-

vided that any claim under the act was to be enforced

by lawsuit only, notwithstanding any agreement be-

tween parties for any other method of settlement. There

is no such express language.

[De see nothing in the wording of the Fair

Labor dards Act which precludes arbitration of

claims under it. No doubt it creates rights which make

a basis of a claim by an employee against an employer

who violates it. So does any contract. A claim under

the act and a claim based on a contract—each is based.

on a legal right which claimant asserts against some-

one else. Arbitration is one way by which such right

can be enforced. There is no reason why it cannot be.

availed of to secure rights under the Fair Labor Stand-

ards Act just as well as a right arising out of a contract

or imposed by law as a consequence of a tort.’’ Dona-

hue v. Susquehanna Collieries Co. (3rd Cir. 1943), 7

CCH Lab. Cas. Par. 61,758, 138 F. 2nd 3.

In Beckley v. Teyssier (9th Cir. 1964), 49 CCH Lab.

Cas. Par. 31,589, 332 F. 2d 945, plaintiffs brought an action

A2S

in the federal court to recover overtime pay foy traveling

to and from work under the FLSA. The proceedings were

stayed by the district court, The circuit court affirmed

saying: 77

„The appellants contend that since they seek re-

covery under the provisions of the Fair Labor Stand-

ards Act and not under the Collective Bargaining

Agreement, the district court erred in staying the civil

action pending arbitration under the Collective Bar-

gaining Agreement. Appellants support such conten-

tion by arguing that whether the time spent by them

in traveling to and from the barracks to the job site

constitutes hours worked under the Fair Labor Stand-

ards Act is a legal question which must be determined

by the courts without reference to the, provisions of

the Collective Bargaining Agreement, arid presents a

question which cannot be determined by an arbitrator.

Appellants cite no provision of the Fair Labor Stand-

ards Act which precludes arbitration of claims arising

under it. We have found none. * * * 5

At is clear to us that the claims of appellants are

ones growing out of the relation of employer and em-

ployee and necessarily involve the application and in-

terpretation of the contract provisions above quoted,

and therefore fall squarely within Article V of the

Collective Bargaining Agreement, See Evans v. Hud-

son Coal Co., (14 LC 64,318) 165 F. 2d 970 (3rd Cir.

1948). To sustain appellants’ contention would be to

emasculate the arbitration provisions contained in the

Collective Bargaining Agreement.“ )

The United States Supreme Court has approvingly re-

ferred to this line of cases, ‘The reports of both Houses

Ams |

created:”? Wilko v. Swan (1953), 346 U.S. 427, 431-432, 94

8. Ct. 182, 98 L. Ed. 168, 174. (Emphasis added.)

It is clear to me that if plaintiffs had brought this action’

in federal court subject to the Federal Arbitration Act, 29

USCA §3, proceedings would have been stayed pending

arbitration. Here, defendant asks for dismissal of the suit

because plaintiffs failed to exhaust the grievance proce-

. dures of the collective bargaining agreement.

Is the obligation to exhatist the internal remedies in a

collective bargaining agreement modified when a judgment

is sought on jurisdictional. grounds in a state court? I have

found no United States Supreme Court decisions on this

question involving statutory rights under the FLSA, but

an action in a state court by an individual for severance

pay claimed to be due under the terms of a collective bar-

gaining agreement was dismissed for failure to exhaust

grievance procedures. Republic Steel Corp. v. Maddox

(1965), 379 U.S. 650, 653, 85 S. Ct. * 13 L. e e

583-584.

In his opinion, Mr. J ustice Harlan sets forth the reasons

for the strong federal policy favoring arbitration as fol-

lows:

But unless the contract nine otherwise, there

can be no doubt that the employee must afford the

union the opportunity to act on his behalf. Congress

has expressly approved contract grievance procedures

as a preferred method for settling disputes and sta-

bilizing the ‘common law’ of the plant. * * * Union in-

terest in prosecuting employees grivances is clear.

Such activity complements the union’s status as ex-

clusive bargaining representative by permitting it to

participate actively in the continuing administration of

the contract. In addition, conscientious handling of

grievance claims will enhance the union’s prestige with

employees. Employer interests, for their part, are

_. served by limiting the choice of remedies available to

aggrieved employees. And it cannot be said in the nor-

A.

mal situation, that contract grievance procedures are

‘inadequate to protect the interests of an aggrieved em-

ployee until the employee has attempted to implement

the procedures and found them 80. a e

A contrary rule which would permit an individual

employee to completely sidestep available grievance

- procedures in favor of a lawsuit has. little to commend 5

it. In addition to cutting across the interests already

mentioned, it would deprive employer. and union of the

ability to establish a uniform and exclusive method

for orderly settlement of employee grievances. If a

‘ grievance procedure cannot be made exclusive, it loses

much of its desirability as a method of settlement.

A rule creating such a situation ‘would inevitably exert

a disruptive influence upon both the negotiation and

administration of collective agreements.’ Teamsters *

Local v. Lucas Flour Co., 369 U.S. 95, 103. 7 L. Ed.

2d 593, 599, 82 S. Ct. 571.” “Ai :

These considerations are just as strong under a claim

for Overtime wages under the FLSA as they would be:

under a contract provision. There is less reason to permit

a lawsuit here than in Maddox where the claim was for

severance pay, the plant was closed and mo one held the

position of foreman any longer with whom to initiate

grievance procedures. 5 das

Any distinction between the instant case and Republic

Steel Corporation v. Maddox niust be based on the fact 3

that plaintiffs’ rights here are based on statute (FLSA)

and plaintiff’s rights in Maddox were based on the contract:

I agree with the majority that U.S. Bulk Carriers, Inc. v.

Arguelles (decided by the United States Supreme Court

January 13, 1971) offers guidance on this question, but it ~

guides me to the opposite. result. race abet ee,

There a seaman brought an action in the federal district

court for wages and a penalty alleged to be due under the

provisions of 46 U.S.C. § 596, which permits seamen to

—

2

A.26

asus for wages in federal courts, The bett opinion (five

justices) is based on statutory construction and reaches

the conclusion that Congress in section 301(a) of the Labor

Management Relations Act of 1947, 29 U.S. 5 185 (a) did

not intend to deprive seamen of a remedy they had had

since 1790. The opinion held plaintiff could either sue in

the federal courts or invoke the grievance procedures of .

the collective bargaining agreement. :

Justice Harlan, one of the majority, 8 speciallß

Stating that the cases of Smith v. Evening News Asso. ©

(i962), 371 U.S. 195, 83 S. Ct. 267, 9 L. Ed. 2d 246; Republic

Steel Corp. v. Maddox, supra;.and Carey v. ‘Westinghouse

Corp. (1964), 375 U.S. 261, 84 S. Ct. 401, 11 L. Ed. 2d 320,

‘‘evince the crucial role of the federal judiciary i in forging

‘the proper relationships among available arbitral, admin-

istrative, and judicial forums for vindicating contractual

and statutory rights of employers, unions, and employees.

In light of these cases, I cannot infer, from the mere pro-

vision by Congress of a federal judicial forum for enforce-

ment of the wage claims, of a subclass of workers’ wages,

that this Court is foreclosed from requiring arbitration

under the. collective - bargaining sone as gat „ (Emphasis

added)

He makes the distinction between an 1 individual ’s claim

for wages based „simply on a contract’? (Maddoz) and a

‘claim for wages growing out of a federal 278155 (4 2888

and the instant case) and states: |

Where, however, the § 301 3 ee fed-

‘eral statutory rights, it is incumbent upon this Court

to fashion the relationships among forums according

to an analysis of the policies underpinning both § 301

and the federal statute the employee invokes, rather

than simply transposing ipso facto the Court's 2

ardbitration jurisprudence.

He concluded:

“And the ‘difficulties of e the respective

e ee ee eS si

A.27

right forbode ill for the efficient resolution of dis-

putes implicating both the contract right and the

federal statutory right. But the matter is not one to

de decided abstractly ; it may wi that certain types

of federal statutory: benefits will themselves to

arbitration or splitting without an ble sacri- —

fice in competing policy interests. NS

e “However, this is not such a statute, because the

‘very essence of the legislative policy at ‘stake hereis

ensuring promptness in the payment of wages. I think rg:

it obvious that the least desirable of all solutions would 5

be to oreatę a necessity for suits in both forums. In

this circumstance, I think conflicting congressional pol-

icies are best reconciled by constrains 46 U.S. O. $596

and § 301 of the Labor-Man it Relations Act as

‘ gecuring to the seaman an on to choose between

arbitral and judicial forwis where he states a claim

under both the contract and 46 U.S.C. § 596” (Em-

phasis added.) :

Justice White joined by Aes Stewart and Marshall,

dissented stating: ‘‘In Textile, Workers Union v. Lincoln

Mills, 353 U.S. 448 (1957), it was held that federal courts

have jurisdiction to specifically. enforce the arbitration °

provisions of the collective-bargaining agreement. And it

has been clear at least since Republic Steel Corp. v. Mad-

dom, 379 U.S. 650 (1965), that absent extraordinary cir-

cumstances not alleged here, contractual. grievance pro-

; cedures must be exhausted before. suit can be brought.“ N

On the distinction between contract and statutory rights

he said: nor until now has there been any principle which

requires contract rights to · be resolved internally but di-

rects statutorily created remedies to be presented to the

court, at least where, as here, the availability of the statu-

_ tory remedy rests on disputed issues which are cognizable

under the arbitration clause. In fact, this Court and lower.

federal courts have endorsed the F of arbitration

——

or

25 to resolve federally LE

U.S. 427 (1953), the expressed ‘hope for (arbitra-

ry yy ) usefulness * in controversies based on statutes

* 846 U.S. at 482. And circuit courts of appeal both

before and after passage of.§ 301 have required that FLSA _

's claims for liquidated damages under 29 U.S. C.

3216 (b) for failure to pay overtir wages be referred to

contractual grievance procedures be ore being presented to

the court. *

b

and Justice Harlan’s concurring opinion in Arguelles and

his generally favorable view toward arbitration, I believe

the federal law to be that congressional policies are best

reconciled by that actions for wages under the

FLSA are cader the’ general rale that contract grievance

must be exhausted before an action can be

brofight in the courts.. There is nothing in the majority

opinion to indicate disagreement with this conclusion. The

peculiar facts which persuaded the court Congress did not

intend to take away a traditional, . are

not present in this case. N

1 would dne, u. sation as having been brought pre

| Moons, ©. J., joins in this dissent.

Some Sections of the Collective Bargaining Agreement |

AGREEMENT BETWEEN IOWA BEEF PACKERS

AND ASSOCIATED EMPLOYEES ORGANIZATION

Arrieta III— Punto or Acnzzement

Sorrow 1: It is the intent and purpose of the parties

hereto that this Agreement shall promote and improve the

A.29 |

conditions of employment to be observed between the

Szcrion 2: It is recognized by both parties that they have

a mutual interest and obligation in maintaining friendly

cooperation between the Company and the Union which

will permit safe, economical and efficient operation of the

plants.

Aztictz VII—Hovrs or Worx

Szortow 3: Time and one-half (142) will be paid for hours

worked in excess of eight (8) in any day. Time and one-half

(142) will be paid for all hours worked in excess of forty

(40) in any one week. 2 |

Ame XIV—Mazais ,

Szoriow 1: A lunch period shall be provided no dater

than five (5) hours from the start of an employee’s shift,

except when the shift does not exceed five and one-half

(5%) hours.

Szeriow 1: Should the Union or any individual employee

desire to process a grievance pertaining to u violation of

the Agreement, the matter shall be handled according to

the following steps: wi,

. Srer I }

The employee involved, with a Union representative if

he so desires, shall discuss the matter with his immediate

supervisor. In the event he does not receive a:

. Srar II

If the matter is not settled in the first step, the Union

grievance committee or any officers designated by the Union

7

shall. present the matter to the Plant Superintendent for

Step must be presented

r the answer in the First

i

2

F

& K

the presentation shall be

writing on the. Employee’s and steward’s own

be scheduled as near as possible to

Sear IIT

Secrtox 2: Ansrraation Provision—If at the final step

until a arbitrator is left. He will then be selected

as the for the arbitration in question. His deci-

sion in the grievance shall be and binding on the

431 ;

in writing, within thirty (30) days after the conclysions

of the hearing, or hearings as the case may be. The com- :

pensation and necessary expenses of the arbitrator shall

be borne equally by the Company and the Union.

Szoriow 3: The parties agree that the time allowed to

process grievances is adequate. If the Union fails to process

a grievance in the time specified herein, thé.grievance in

question is ended: However, if either party requests a rea-

sonable extension, the time limit specified for the discussion

between the Plant Manager and representative of the Union,

the time specified in Section 1 hereof shall be extended.

Aztictz VI—Company'amp -

Ummon Rusroxsmurrms

Szorion 1: During the term of this Agreement there

shall be no strike, stoppage, slow-down or suspension of

work on the part of the Union or its members, or lock-out

on the part of the Company. In the event of a breach of

this provision, the Union shall immediately declare publicly

‘that such action is unguthorized and shall promptly order

its members to resume their normal duties notwithstanding

the existence of any picket line. The Union further agrees

that it will in no way interfere with the business of the

Company by sanctioning or conducting a boycott on the

handling of goods procured from a source or destined to a

point where labor controversy may exist.

, Suortow 2: The company shall have the right to deter-

mine the discipline given an employee or employees for

breach of this Article. The Union shall, however, have

right to grieve the question of fact as to whether or not eae

an employee or employees have breached the provisions of