Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 4234-David H. Coar, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, ROVNER, and EVANS, Circuit Judges.
This appeal requires us to analyze the relation between section 301(a) of the Labor Management Relations Act (Taft-Hartley), 29 U.S.C. § 185, which authorizes federal suits to enforce collective bargaining agreements, and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., the federal minimum-wage and maximum-hour law. The plaintiffs represent a class (an "opt-in" class under 29 U.S.C. § 216(b); see Harkins v. Riverboat Services, Inc., 385 F.3d 1099, 1101 (7th Cir. 2004)) of more than a thousand linemen and other hourly workers employed by Commonwealth Edison. (Affiliates of Com Ed are also defendants, but need not be discussed.) The plaintiffs claim that Com Ed has violated their rights under the FLSA by the way it implements its "call out" program and also by forcing them to work during their lunch break without paying them anything, let alone the overtime pay to which they are entitled if they are indeed working then, because the time allotted to those breaks, if added to the normal work week, exceeds 40 hours.
The district judge granted summary judgment for Com Ed. He ruled that the implementation of the call-out program does not violate the FLSA and that the plaintiffs' only remedy for the alleged mealtime violation is a proceeding to enforce their rights under the grievance and arbitration provisions of the collective bargaining agreement between the electrical workers union and Com Ed. The union did seek arbitration, but only with regard to the call-out program. It lost, and we rejected the union's challenge to the arbitrator's decision. Local 15, International Brotherhood of Electrical Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779 (7th Cir. 2007).
Com Ed's "automated roster call out system"- "ARCOS"-notifies off-duty employees by a phone call to their home phone, beeper, or cellphone when additional manpower is needed on an emergency basis. An employee is not required to accept a call out, but if he fails to answer more than 50 percent of the calls or refuses to accept more than 35 percent of the call outs (other than because of excused absences, as when the worker is ill or on a scheduled vacation), he is disciplined. And if he continues to fall below either minimum he may be fired, in which event he is forbidden to work on Com Ed prop- erty or projects even as the employee of an independent contractor.
An employee who accepts the call out travels first to his normal duty station and then to the work site. He is paid not only for the time working but also for the time it takes him to get to the site from his normal duty station and return there when he has finished working. But he is not paid for the time he spends commuting to and from his normal duty station.
Most call outs occur on weekends, but the frequency varies considerably among workers. A few are called as often as once every five-and-a-half days on average, and some others no more than once a month.
Com Ed has always had to call out workers for emergency repairs, and the fact that its call-out procedure is now automated is not what bothers the workers. What bothers them is that a cost-motivated reduction in the number of Com Ed's employees has led the company to insist on a much higher response rate than in the old days, when no response rate was specified and the average rate was below 20 percent and sometimes below 10 percent. The plaintiffs argue that the frequent call outs disrupt their home life and that therefore while waiting for a call they are working within the meaning of the Fair Labor Standards Act and thus are entitled to be paid the minimum wage for their waiting time. They do not press their claim to its logical conclusion-that they are entitled to be paid for working 168 hours a week (since an electrical outage or other emergency can occur at any time), with 128 of them constituting overtime-but instead argue vaguely that they should be paid for "some of the time" during which they are subject to call, with how much to be left to the trier of fact to determine. The deter- mination would have to be made on a case-by-case basis since the call-out experience varies so among the workers.
In its suit to set aside the arbitrator's decision refusing to invalidate ARCOS, the union had argued unsuccessfully that the adoption of the program was outside the scope of the management-rights clause in the collective bargaining agreement. It had also argued that the program violated the Fair Labor Standards Act, but we held that that argument had been forfeited.
The arbitrator, so far as appears, did not decide whether the collective bargaining agreement places any limitations on ARCOS. The language of the agreement suggests that it does not; it states that "an employee ordered to remain at a specified location, awaiting a call for emergency work outside scheduled working hours, shall be paid the applicable [wage] rate until release." He is not required to remain at home, but only to leave word where he can be reached, which is easily done if he has a cellphone or a beeper, for then he has only to give Com Ed his number and be sure to have the instrument with him and turned on when he's not at home. But it is implicit in the agreement, as we shall see when we come to the mealtime question, that an employee is entitled to be paid whenever he is working; and the plaintiffs argue that even if they are not tied to their home when they are off duty, still their freedom is so far curtailed that they are "engaged [i.e., hired] to wait," and so are entitled to be paid.
The plaintiffs base their claim to off-duty pay on the Fair Labor Standards Act. Although all of them are represented in collective bargaining by the union that lost its suit to invalidate the arbitrator's decision, Com Ed does not contend that the claim is barred by res judicata despite the outcome of the union's suit, and it is right not to contend that. E.g., McDonald v. City of West Branch, 466 U.S. 284, 291 (1984). Although the union represents all the workers in the bargaining unit, it is not their agent in the usual sense, since once a majority of the workers agree to be represented the minority is bound as well. 29 U.S.C. § 159(a). Nor does voting for a union evince consent to the union's bargaining away the workers' statutory rights. So we must decide whether the district court was right to find that the rules implementing ARCOS do not violate the Fair Labor Standards Act.
A regulation of the Labor Department the validity of which is not challenged provides that "an employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while 'on call.' " 29 C.F.R. § 785.17; see Pabst v. Oklahoma Gas & Electric Co., 228 F.3d 1128, 1130-31 (10th Cir. 2000); cf. 29 C.F.R. § 553.221(c), (d). This may be true for some members of the plaintiffs' class, but obviously not for all or even most. The call-out procedure does not require that the worker stay at home or at any other designated location, but only that he be reachable by the company, and the regulation we just quoted goes on to provide that "an employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call." See Skidmore v. Swift & Co., 323 U.S. 134, 138 (1944).
Of course the requirement that one accept 35 percent of one's call outs curtails a worker's freedom of action somewhat even if they are infrequent, because if he is only slightly above the floor he will be jeopardizing his job if he leaves town for the weekend. But that does not mean that he must stay in the house all weekend. He just must stay within a two-hour radius of his normal duty station (for that is the time he is allowed for getting there if he accepts the call out). Is that such a hardship that it turns his waiting into working? We think not, in agreement with the case law on the issue, Dinges v. Sacred Heart St. Mary's Hospitals, Inc., 164 F.3d 1056, 1058 (7th Cir. 1999); Adair v. County Charter of Wayne, 452 F.3d 482, 486-89 (6th Cir. 2006); Ingram v. County of Bucks, 144 F.3d 265, 268-70 ...