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ARRINGTON v. NBC

January 28, 1982

PERCY L. ARRINGTON, et al., Plaintiffs,
v.
NATIONAL BROADCASTING COMPANY, INC., Defendant and Third-Party Plaintiff, v. NATIONAL ASSOCIATION OF BROADCAST ENGINEERS AND TECHNICIANS, AFL-CIO, Third-Party Defendant; DOUGLAS H. ALLMOND, et al., Plaintiffs, v. AMERICAN BROADCASTING COMPANY, INC., Defendant.



The opinion of the court was delivered by: FLANNERY

MEMORANDUM OPINION

 FACTS

 Plaintiffs, broadcast engineers at both the American Broadcasting Company and the National Broadcasting Company (hereinafter "ABC" and "NBC"), bring this action under the FLSA primarily seeking an award of unpaid overtime compensation. *fn1" Plaintiffs claim that they are entitled to such an award because defendants' rate of compensating them for overseas work violates the FLSA. Plaintiffs bring this action under section 16(b) of the FLSA, 29 U.S.C. ยง 216(b), which allows employees to bring both individual and group suits for FLSA violations. In order to bring a group suit, the only prerequisite is that all party plaintiffs must file "consent(s) in writing" to be plaintiffs; *fn2" the instant case is such a group suit. *fn3"

 Defendants' version of the facts differs only in that they view the plaintiffs' union, NABET, and not the individual plaintiffs as being the "real party in interest" in this suit. See at 502-503, infra.

 I. Portal-to-Portal Act

 In 1947, in response to a "national emergency" *fn4" created by a flood of suits under the FLSA aimed at collecting portal-to-portal pay allegedly due employees, *fn5" Congress enacted the Portal-to-Portal amendments to the FLSA. 61 Stat. 87 (1947). The original, stated purpose of the bill containing these amendments was: "To define and limit the jurisdiction of the courts, to regulate actions arising under certain laws of the United States, and for other purposes." 93 Cong. Rec. 156 (H.R. 2157). To this end, the amendments, among other things, *fn6" barred unions from bringing representative actions under the FLSA.

 This ban on representative actions originated in the Senate's consideration of the bill. See 93 Cong. Rec. 4371. The Chairman of the Senate Judiciary Committee, Senator Donnell, explained the rationale behind this ban:

 
Action to recover such liability-
 
This is, the liability for unpaid minimum wages, unpaid overtime compensation, and liquidated damages-
 
Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.
 
It will be observed, Mr. President, that two types of action are permitted under this sentence in section 16(b) of the Fair Labor Standards Act of 1938: First, a suit by one or more employees, for himself and all other employees similarly situated. That I shall call for the purpose of identification a collective action, a suit brought by one collectively for himself and others. The second class of actions authorized by that sentence embrace those in which an agent or a representative who may not be an employee of the company at all can be designated by the employee or employees to maintain an action on behalf of all employees similarly situated.
 
In illustration of this latter category-which category for purposes of identification I call a representative action, as distinguished from a collective action-suppose that every one here present this afternoon were employed by the X steel company, and we all belonged to a labor union, and gave a power of attorney to the district director of the labor union who might live 500 miles away and not be employed at all in the plant in which we were employed. He could file a suit there as a representative of all of us. We would not be in that case at all except as he is our representative. It will be noted, therefore, Mr. President, that in those two classes of cases there is this difference: In the first case, an employee, a man who is working for the X steel company can sue for himself and other employees. We see no objection to that. But the second class of cases, namely, cases in which an outsider, perhaps someone who is desirous of stirring up litigation without being an ...

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