*2 employed Jiffy drivers Farmers June Mobile, Ala., compensation Darby, Jr., Willis overtime C. defendants-appellants. cordance with Section 7 the FLSA. organized Then the Teamsters’ Union Hayden Rector, Salmon, H. Michael J. Jiffy employees. June The union Mobile, Ala., Beverley Dept. Worrell, R. negotiated agree- a collective Labor, Margolin, Atlanta, Ga., Bessie Jiffy ment with the June Clauss, Labor, Dept. Ann Carin U. S. granted regular which increase Washington, C., plaintiffs-appel D. wage, hourly exchange and in the union lees. agreed provision purportedly to a ex- WISDOM, Before COLEMAN empting from the FLSA Judges. SIMPSON, Circuit rate WISDOM, Judge: Circuit jurisdiction to the the Interstate court, The decision of the district Commerce Commission.2 Before enter- F.Supp. A detailed affirmed. into the A. Trai- Robert qualifications Amalgamated Clothing te establish ipaximum 1. See NLRB pursuant provi- America, hours of service Workers sions of section 204 of the Motor Carrier F.2d 966. Act, 213(b) (1). 1935.” 29 § U.S.C. 13(b) (1) pro- today the FLSA Under Local Rule we have holding vides that the overtime affirmed the district court’s applicable “any Act shall not be June’s drivers and loaders were ployee respect coverage exempt the Inter- whom from the 13(b) (1). power state Commerce Commission has virtue of Section (on nor, Jr., weekends) only principal then. of Jif- shareholder fy attorney, had June, who Court deduced consulted his clock, punch him loaders been ordered not advised that the June sought exempt therefore under the and drivers would be Dowd, applicable provision like Thus of the FLSA. evade FLSA. Hyatt Krumbeek, involved bad to discov- far as been able we have So *3 evasion the Act and definite knowl- of appellate the er, court has construed no edge applicability. Dowd, the In of its limitations since it statute of made defendant testified that had he district court amended in Three 1966. inquiries casual the been told Circuit —have decisions —two from this apply employees. did not to his applied year upon period a the three court noted that the defendant did not finding But the district of wilfulness. lawyer Depart- consult “a or the Labor provide guidance court cases little as to verify any expert or an of kind to applicable period the of limitations when determination,” to and adhered its employer the and then relies on seeks view that the defendant knew his prior departing the of counsel to advice tions constituted a violation of Act. the by sign- wage from the federal standard Dowd, then, may imply in dictum that bargaining agreement. a collective consultation sufficient with counsel Hodgson D.C.Fla.1970, Hyatt, In negate to the three wilfulness avoid employer F.Supp. 390, altered 318 the year limitations, stops of statute but reflect his records of hours worked to holding. any far short of falsely employees had been that his statutory short, rate for overtime work. the In of dis none the three year applied court three district the court di trict cases has addressed itself are inten rectly statute “to violations which question' to the whether viola a tional, voluntary knowing, or as distin may yet tion committed be * * * guished accidental, wilful, plain as the Government and the by] argue marked though [characterized conduct tiffs Even here. Trainor disregard careless whether or not one lawyers, evidently consulted his re right Hyatt, legal agree to the has the so act.” advice, lied on we the employer’s his records dem alteration of district court that Trainor’s decision to beyond any change onstrated doubt that he pay Jiffy June’s rate of applicability of knew the meaning “wilful” within of that the Hyatt and intended to violate the Act. term as used the 1966 of amendment nothing does therefore resolve 255. Trainor decided consent to the § problem here, namely, change some whether in rates of degree knowledge may despite lesser of a lead to work his the awareness might wilful change. of prevent violation the Act. See FLSA He such a Mfg. Co., previously paid Krumbeck v. employees John Oster D.C. had the his Wis.1970, F.Supp. 257, rate; 313 the where federal overtime Trainor’s de request court opinion found that the had cision to an of counsel is changed job stop “for the classifications further evidence that did he purpose eluding requirements paying the the overtime without Equal Pay inkling wage F.Supp. any Act.” at federal thereby scheme be violated. suspi cannot excuse Trainor from these Inc., Cleaners, In Dowd v. Blackstone lawyer simply cions because his told him D.C.Tex.1969, F.Supp. 1276, overruling he need not fear federal substantially applied district court of his new with Teamsters’. knowing, “intentional, the same or vol- proceed' The advice of counsel to with a untary” Hyatt, test of wilfulness used in wage settlement which under favorable and found a wilful where the way easy cuts would an FLSA punching refrained from circumventing requirements a clock when worked overtime 216(a). way easy for us to as- Our decision a Act—far too particular Congress is limited to facts of this intended to sume question two-year limita- case and to the before us: civil strict liability period Fair Labor tions lawyer whenever light green given to Act. him the .pay. restructure their supplemental petition In a history rehearing, legislative appellants state that The entire either indicates this court nor district “[n] amendments the FLSA specifically part of liberalizing addressed itself to the on intention separate Congress. and distinct Requiring employers have defense of Farms, Trainor; possible ap- Poultry, and more than awareness of plicability namely incon- would be FLSA day Consequently, August, 1966, on the 18th intent. de sistent with that *4 Jiffy fendant Jiffy Poultry decision to Farms and defendant we hold that change employees’ entered in vio- into a collec rate of bargaining agreement when, tive in lation of as with Team is “wilful” FLSA sters, Chauffeurs, case, this evidence Warehousemen and there is substantial finding Helpers (Team support the Local Union the a that No. 991 record to sters), by employer suspected certified the or that his National La knew bor Relations Board FLSA. ... as the tions violate the Stated agent bargaining simply, exclusive think the test should collective most we employer para of the graph the referred to in be: Did the know FLSA case, complaint; of picture? five the In this Trai- said col was the bargaining agreement lective nor knew that the had to con- contains FLSA be binding” grievance a “final comply sidered when he ceased to lawyer procedure; and, pri- arbitration Act it the permissible and asked his if was filing or to action, the of not con- to do so. need it We was finally through today three-year griev determined sider stat- such whether the procedure employes ance applies ute in a case that the re of limitations ought paragraph ferred to in where of com the have known five the plaint exempt possible applicability the were from of of Section 7 Act, 207, by the compellingly but can that in demonstrate U.S.C.A. of virtue 13(b) (1) Act, fact he did of not. the 29 U.S. 213(b) (1). C.A. The decision is affirmed. below argue appellants their em- ployees by should be bound ON FOR REHEARING their PETITION decision process their claims for overtime PER CURIAM: wages through grievance machinery the of agreement. bargaining of the adhere to the construction collective support of Section 255 of Fair Standards their the Labor contention that this panel opinion important issue is an in the one, appellants embodied the cite son, 29, Packers, Iowa November Beef Thomp- 1971. Even under Inc. v. Act, 228, provision criminal 216(a), U.S. section 92 S.Ct. 31 L.Ed. (1972) 2d interpre- where, argu- a “wilful” act has been after oral ment, “deliberate, Supreme ted to mean no more than one Court dismissed as improvidently granted voluntary and distin- intentional writ of certio- guished through rari to consider from one committed in- “whether . . . ployees may advertence, accidentally, ordinary by sue in court to recover over- allegedly negligence”. time Nabob Oil Co. v. United withheld in violation of States, Fair Act, 190 F.2d Labor if grievance alleged caution, however, Out note we interpretation griev- is also of the resolution word “wilful” under ance and provisions as used in Section 255 was not intended arbitration of a col- legitimacy of agreement”. in the bargaining Certio- be some confidence lective circumstances, griev- “the arbitration dismissed because rari was management each would provisions . for union and . . and arbitration ance differing agreement actively pursue bargaining views of the collective imposed only requirements . uncertain in this . . ease involved required union would be grievances ‘pertaining to a violation contract. ” effort on behalf Agreement.’ to make a of the employees, aggrieved man- the record from at all clear It course, guided by agement would, of “final present it was case whether in the interests. its own through ly the contractual determined” case, present how- The record appellants’ grievance procedure disputed ever, plainly reveals exempt over provision collective in the June Nor is the FLSA. provision not a to which any, appellees just which, if clear union attached differ- grievance. parties doWe open- ing interpretations. As June uncertainties not address these page 31, ly “The states in its brief at argu appellants’ convinced that we are suggested exemption motor carrier assuming merit, is without even Through collective the Teamsters. fully, aggrieved employees that all truck drivers and loaders grievance unsuccessfully pursued *5 raise; Teamsters, (cid:127)obtained a to procedures effort vindi an secure recognized representative, drivers’ truck right statutory of their to over cation then, truth, exemption”. an overtime ques pay. need not reach the XII, agreement, Article Section originally for which tion certiorari though ambiguous ostensibly and sus- supra. Packers, granted in Iowa Beef through ceptible interpretation bargaining The collective grievance machinery, un- embodied an appel- and the the Teamsters between understanding equivocal Team- between grievance as a “com- defines a lants management. sters June’s plaint employee con- or Union understanding truck drivers cerning application interpretation not to and loaders were over- agreement”. V, of this Article time. dispute 1. The covered overtime “Settling” grievances employees’ relatively language this be- restrictive through grievance contractual ma agree- cause the collective chinery was, under the circumstances provides further its overtime case, hopeless mind charade. Its any not “shall up committed, credibility made and its ployee respect to whom the Inter- possibly provide the union not could power state Commerce has Commission aggrieved employees with fair and qualifications to establish maximum vigorous representation to which pursuant provi- hours of service attempting were entitled in to vindicate sions of Section 304 of Title 49 United wages. for claim overtime States Code”. fairly represented If not sue enforce contrac federal face, provision On its this contractual rights, tual it follows a that em fortiori appears directly upon prob- cast us ployees fairly represented may sue, lem of the Iowa Packers case, su- Beef regard grievance procedures, without pra. certainly We should face a serious rights given to enforce detailed them question of the need if arbitration by Congress when enacted the Fair agreed by union and Sipes, Labor Standards Act. See Vaca v. management’s obliga- contract state 386 U.S. L. S.Ct. tion to terms of man- Ed.2d 842. agement’s statutory obligation Fair Labor rehearing Standards Act. petition There could is denied.
Arthur Coleman v. Jiffy June Farms, Inc., James D. Hodgson, Secretary of Labor, United States Department of Labor v. Jiffy June Farms, Inc.
458 F.2d 1139
5th Cir.1972Check TreatmentAI-generated responses must be verified and are not legal advice.