intra-union remedy would clearly have been an utter act of
In evaluating the sufficiency of these allegations, this
Court is sensitive to the direction provided by the
Clayton Court, which noted that, "Courts have discretion to
decide whether to require exhaustion of internal union
procedures." 451 U.S. at 689, 101 S.Ct. at 2095. The Court
added that exhaustion would be inappropriate where the remedies
cannot give the relief requested. Id. In the present case, the
internal union remedies clearly would not provide adequate
relief. Plaintiffs assert that the intra-union remedies apply
only to "a member who has been expelled, suspended or fined."
Plaintiffs, by their allegations, have not been expelled,
suspended, or fined. Thus, the remedies are not applicable
here. Furthermore, assuming arguendo that the remedies do apply
here, the remedies would not provide plaintiffs with the relief
requested. Plaintiffs pray for compensatory and punitive
damages, an award of attorneys' fees, and injunctive relief.
The granting of such an award is clearly beyond the scope of
the unions' power. In addition, it is obvious that the union
might be less than completely objective when examining claims
of its own misconduct. This lack of objectivity would itself
make relief unlikely. Thus, the Court must decline to exercise
its discretion to require exhaustion.
Even absent the guidance of Clayton, denial of defendants'
motion to dismiss based on exhaustion would be proper. Conley
v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)
provides that, for dismissal to be proper, it must appear
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. 355
U.S. at 42, 78 S.Ct. at 100. From the foregoing discussion, it
is clear that plaintiffs' allegations of futility are not so
insufficient as to require dismissal of the complaint.
Defendants' motion to dismiss based on the exhaustion of
remedies requirement therefore is denied.
2. Claims Under the Fair Labor Standards Act
Plaintiffs claim under § 16(b) of the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 216(b), is based on overtime
compensation. Plaintiffs pray for (a) an accounting of wages,
both regular and overtime, owing to plaintiffs by Levy, (b)
judgment for loss of wages, both regular and overtime, (c) an
accounting of contributions due by Levy to the Union Health and
Welfare Fund and Pension Fund, and (d) an order requiring Levy
to pay such contributions to the Health and Welfare Fund and
Pension Fund. Defendants have moved to dismiss the claim under
§ 16(b) on several grounds.
A. Statute of Limitations
Defendants first assert that plaintiffs' claims arising
prior to January 18, 1980 are barred by the 2-year limitations
period of the Fair Labor Standards Act, 29 U.S.C. § 255. For
the following reasons, the Court agrees.
Under the FLSA, a cause of action accrues for overtime
compensation at each regular payday immediately following the
work week during which services were rendered. Soler v. G & U,
Inc., 86 F.R.D. 524 (S.D.N.Y. 1980), Mitchell v. Lancaster Milk
Co., 185 F. Supp. 66 (M.D.Pa. 1960). Thus, in the present case,
plaintiffs' claims for overtime compensation accrued at each
payday after the alleged overtime was worked. As each claim
accrued, the 2-year limitations period of § 255 began to run.
As a result, plaintiffs' claims for overtime arising prior to
January 18, 1980 (two years immediately prior to the filing of
this action) are barred by § 255. Plaintiffs' claims for
overtime earned since January 18, 1980 may go forward. See,
also, Wirtz v. Handy, 279 F. Supp. 264 (D.Fla. 1967) (barring
only that part of overtime claim arising prior to limitations
period), and Reid v. Solar Corp., 69 F. Supp. 626 (N.D.Iowa
B. Specificity of Pleading
1. Involvement in Interstate Commerce
While the plaintiffs' complaint alleges that Levy is
involved in a business in interstate commerce, defendant Levy
argues that plaintiffs have not alleged sufficient facts to
enable the Court to find that
Levy is an enterprise engaged in interstate commerce, or in
the production of goods for commerce, as required by the FLSA.
Significantly, Levy makes no attempt to deny that it is
involved in interstate commerce; instead it argues that
plaintiffs have not put forth sufficient proof of Levy's
involvement. Obviously, such proof — if Levy wishes to
seriously debate the issue — must await trial.
To grant a motion to dismiss, it must appear to a legal
certainty that a plaintiff can prove no set of facts which
would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957). In light of this standard and
the liberality within which we must read plaintiffs' complaint,
such complaint, while not as factually detailed as it might be,
is sufficient to survive a motion to dismiss.
2. Exact Number of Hours of Overtime Worked
Defendant Levy also asserts that plaintiffs have failed to
allege the exact number of hours they have worked in excess of
40 hours in each work week, and that therefore plaintiffs'
overtime claim must fail. The Court finds that the absence of
such specificity in pleading is not fatal to plaintiffs'
Levy offers several cases to support its position. In
Tringali v. Kaffee, 75 N.Y.S.2d 157, 273 App. Div. 109 (1974),
the Court dismissed a complaint which alleged that, "Defendant
employed plaintiff for work weeks in excess of 40 hours," and
reasoned that "it does not follow that plaintiff actually did
work in excess of 40 hours during any work week." 75 N.Y.S.2d
at 158, 273 App. Div. at 110. In the absence of that specific
allegation, the Court held the complaint insufficient. Id.
The defendant also cites Barbosa v. Bull Insular Lines, 4
Wage & Hour Cases (BNA) 306 (D.P.R. 1944). In Barbosa,
employees filed an action to recover statutory overtime
compensation. The complaint alleged that the employees were not
paid in accordance with the terms of the Fair Labor Standards
Act, but failed to allege that any employee actually worked any
overtime. Id. at 307. The motion to dismiss the complaint was
granted on the ground of insufficiency. Id.
In the case now before the Court, the complaint states that
plaintiffs "were required to work and did work . . . in excess
of forty (40) hours a week." Thus, the flaw contained in the
complaints in Tringali and Barbosa — failure to allege that
the employees actually worked in excess of 40 hours in a week
— is clearly not present in the instant complaint.
In Donovan v. American Leader Newspapers, Inc., 524 F. Supp. 1144
(M.D.Fla. 1991), the Court upheld a complaint which
alleged that some employees were paid less than the statutory
minimum hourly rate and were required to work in excess of 40
hours per week without being paid the minimum overtime rate. In
denying a motion to dismiss the complaint, the Court noted that
the complaint stated the jurisdictional basis for its claim,
identified the section of the Act that the defendants had
allegedly violated, described the nature of the violations,
specified the period of time in which the violations occurred,
and indicated the relief sought. 524 F. Supp. at 1146. The Court
held that "such a complaint complies with Rule 8(a) [of the
Federal Rules of Civil Procedure] and is sufficient to enable
defendants to frame a responsive pleading. Accord, Hodgson v.
Virginia Baptist Hospital, Inc., 482 F.2d 821 (4th Cir. 1973).
In the case at bar, as in Donovan, the complaint contains
sufficient information to satisfy the requirements of Rule
8(a). Defendants' motion to dismiss based on insufficiency of
pleading therefore is denied.
3. Application of the FLSA to the Unions
Finally, the unions maintain that they are not "employers"
within the meaning of the FLSA, and that the Act does not, in
this instance, apply to them. This issue was addressed in
Bowen v. U.S. Postal Service, ___ U.S. ___, 103 S.Ct. 588, 74
L.Ed.2d 402 (1983). In Bowen, a Postal Service employee brought
a § 301 suit against the
Postal Service and his union for damages arising from his
discharge. The District Court for the Western District of
Virginia assessed damages against both the Postal Service and
the union. The Fourth Circuit Court of Appeals reversed,
holding that compensation was payable only by the employer.
The Supreme Court affirmed the District Court, and held that,
where there was a showing that the employees' damages were
increased by the unions' breach of fair representation,
apportionment of damages between the employer and the union
While the unions concede that the effect of Bowen is to share
damages between an employer and a breaching union, they argue
that the holding in Bowen should not be extended to create
liability for a union which has not breached its duty of fair
representation. This argument is inapposite, however, as
plaintiffs have stated a claim against the unions for breach of
fair representation. Bowen indicates that if this charge is
proved at trial, and if it is proved that the unions' breach
increased the employees' damages, apportionment of damages
would be required. Therefore, since it is not clear that the
plaintiffs can prove no set of facts which would entitle them
to relief against the unions under the Conley standard, the
unions' motion to dismiss, based upon their argument that they
are not liable for damages, must be dismissed. Clearly, under
Bowen, the instant claims arising under the FLSA may be brought
against the unions.
Defendants' motions to dismiss the complaint are denied in
part and granted in part. Plaintiffs' claims under § 301 of the
Labor Management Relations Act arising since July 18, 1982 may
go forward. Plaintiffs' claims for overtime compensation under
§ 16(b) of the Fair Labor Standards Act arising since January
18, 1980 may also go forward. All other motions to dismiss are
IT IS SO ORDERED.