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CLEARY v. ADM MILLING CO.

June 21, 1993

ODDIE CLEARY, LEWIS C. BROOKS, CLAUDE HOWARD, JOHN WILLIAMS, LEONID BRENMAN, AND LOUIS A. OSTERLING, Plaintiffs,
v.
ADM MILLING CO., Defendant.



The opinion of the court was delivered by: BRIAN BARNETT DUFF

 The plaintiffs have filed a one count amended complaint against their employer, ADM Milling Co. ("ADM"), in which they allege that ADM violated Section 207 of the Fair Labor Standards Act (the "FLSA") by not compensating the plaintiffs for off-work time in which they were "on-call." Defendant ADM has filed a motion for summary judgment. For the reasons discussed below, the court grants ADM's motion.

 Background

 This suit was filed by 6 of the 7 maintenance employees at ADM's Chicago wheat processing plant (the "Plant"). *fn1" All of the plaintiffs are members of the American Federation of Grainmillers, Local 69 (the "Union"), which represents the plaintiffs and all other ADM production employees in contract negotiations at the Plant.

 The Plant operates on three 8-hour shifts, and the plaintiffs normally work on the first shift -- 6:30 a.m. to 3:00 p.m. If repairs are required on the second or third shifts or on weekends, the "miller" on duty will page one of the plaintiffs and request that he come in. Pursuant to an agreement between the Union and ADM, such "call-ins" are made in order of seniority, starting with the most senior employees. Since ADM began operating the Plant, the plaintiffs have averaged 1.25 call-ins each per week, with the average call-in lasting an hour and ten minutes, excluding travel time. *fn2"

 During the time period relevant to this litigation, two collective bargaining agreements were in effect (hereafter, the "1988 CBA" and "1990 CBA"). *fn3" Both collective bargaining agreements describe the plaintiffs' wages, including the pay for call-ins. The 1990 CBA, for example, provides that for each call-in, no matter how short the duration, employees shall receive the greater of four hours pay at their regular hourly rate or time and a half for the time actually spent working at the Plant. Neither collective bargaining agreement, however, contains any provision for pay to maintenance workers for simply being on-call.

 Although the plaintiffs assert that employees are restricted in the range of activities they can pursue while on-call, they do not assert that any employee was ever formally disciplined for failing to respond to a call-back. Moreover, while ostensibly on-call, the plaintiffs ate out at restaurants, went to the movies, watched sports on TV, entertained friends and family, went to a pool hall, gardened, and played games with family members. *fn4" Indeed, the plaintiffs occasionally did not respond to pages; called to state that they could not come in because of excessive alcohol consumption; or informed their supervisor (or the miller responsible for paging maintenance people) before the end of their shift that they did not wish to be paged that evening. *fn5" ADM has no rules about where or how far from the Plant the plaintiffs may live. Furthermore, M.C. Ragland, the millwright who is not a plaintiff in this case, does not carry a pager or participate in the call-in program.

 Although both the 1988 CBA and the 1990 CBA contain grievance procedures, at no time has any plaintiff (or any other employee) ever presented any grievance to the Union or ADM in which it was claimed that ADM should pay maintenance employees for simply being on-call. Plaintiff Oddie Cleary was on the Union committee that negotiated both the 1988 CBA and the 1990 CBA.

 Nevertheless, on February 14, 1992, the plaintiffs filed the instant action in which they allege that the failure of ADM to pay them for on-call time is a violation of the FLSA. The plaintiffs request a total damage award in excess of $ 560,000.00 per plaintiff (1.5 times their normal pay rate for an additional hours for every day they worked an 8-hour shift, and 1.5 times their normal pay rate for 24 hours for every day they did not work at all). For the following reasons, this court grants ADM's motion for summary judgment.

 Discussion

 Rule 56 of the Federal Rules of Civil Procedure requires this court to enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The court must "decide whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. All reasonable inferences, however, must be drawn in the non-movant's favor. Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir. 1990).

 Although the Seventh Circuit has not directly addressed the issue of compensation for "on-call" time under the FLSA, the Supreme Court has held that under appropriate circumstances, waiting time may constitute working time under the FLSA. *fn6" Armour & Co. v. Wantock, 323 U.S. 126, 133, 89 L. Ed. 118, 65 S. Ct. 165 (1944). The key inquiry is whether the "on-call" time "is spent predominantly for the employer's benefit or for the employee's . . . [a question] dependent upon all the circumstances of the case." Id. In other words, "facts may show that the employee was 'engaged to wait,' which is compensable, or they may show that the employee 'waited to be engaged,' which is not compensable." Owens v. Local No. 169, 971 F.2d 347, 350 (9th Cir. 1992), quoting Skidmore v. Swift & Co., 323 U.S. 134, 137, 89 L. Ed. 124, 65 S. Ct. 161 (1944).

 In determining whether waiting time is spent primarily for the benefit of the employer, courts have emphasized two predominant factors: 1) the degree to which the employee is free to engage in personal activities during the on-call period; *fn7" and 2) the agreement ...


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