United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford U.S. Magistrate Judge.
ORDER CONSTRUING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT  AS A MOTION TO DISMISS AND DENYING THE
J. Tarnow, Senior United States District Judge.
three employees of Defendant, Modern Industries, Inc., bring
this suit for unpaid overtime pursuant to the federal Fair
Labor Standards Act (“FLSA”). See 29
U.S.C. § 201 et seq. Defendant filed a motion
pursuant to Fed.R.Civ.P. 12(b)(6) asking the Court to dismiss
the action. Though the motion was labelled a motion for
summary judgment, it will be construed as a motion to
dismiss, as the motion's standard of review section is
that of a motion to dismiss, not a Rule 56 motion for summary
and Procedural Background
Maynard, Ray Monroe, and David Tornow-allege that they were
routinely underpaid during their time working for Defendant,
a concrete supply company based in Flint, MI. Because this
motion is brought under Fed.R.Civ.P. 12(b)(6), all of
Plaintiffs' plausible allegations will be taken true.
Maynard was employed as a driver from March 2013 to October
2017. (Compl. ¶ 10). He worked 50-60 hours per week and
by the end of his employ was paid $23.00 per hour.
(Id. ¶¶ 13-14). Monroe worked for
Defendant from July 2015 to April 2018. (Id. at
¶ 21). He was paid $23.50 per hour by the end of his
employment and worked 70-80 hours per week. Tornow was
employed from July 2014 to September 2015, and his final wage
was $24.25 per hour. (Id. at ¶¶ 32 &
36). He worked 70 hours per week. (Id. at 37).
three plaintiffs allege that they were underpaid because
although they routinely worked through their daily 30-minute
lunch break, they were not paid for that time. (Compl.
¶¶ 15, 26, & 38). They filed this suit on
August 14, 2018. [Dkt. # 1]. Defendants filed this Motion 
on August 31, 2018. The motion is now fully briefed, and the
Court finds it suitable for determination without a hearing
in accord with Local Rule 7.1(f)(2).
The Collective Bargaining Agreement's Grievance and
Collective Bargaining Agreement (“CBA”) between
Teamsters Local 332, the union to which Plaintiffs belong,
and Modern Concrete, provides for an arbitration and
grievance procedure. (CBA Art. 10). The CBA explains,
A grievance shall be defined to be any complaint, or dispute
arising as to the interpretation, application, or observance
of any of the provisions of this Agreement. It is mutually
agreed that all grievances arising under and during the term
of this Agreement shall be settled in accordance with the
procedure herein provided and that there shall at no time be
any strikes, tie-ups of equipment, slowdowns, walk-outs or
any other cessation of work through the use of any method of
lockout or legal proceeding.
(CBA Art. 10 § 1).
argues that the complaint clearly arises out of the CBA, even
though the CBA is not mentioned by name. The unpaid
lunch-break that Plaintiffs allege that they regularly worked
through are described under Art. 5 § 5 of the CBA: Lunch
Period. A dispute as to whether an employee did or did not
work during his lunch break arise from the
“interpretation, application, or observance” of
the CBA. Putting aside Defendant's failure to even
mention the Federal Arbitration Act in its motion, compelling
arbitration is not appropriate where the arbitration clause
at issue did not clearly foreclose filing suit.
have long held that employees have individual labor rights
under the FLSA that are separate and distinct from their
collective rights under a collective bargaining agreement.
Vega v. New Forest Home Cemetery, LLC, 856 F.3d
1130, 1134 (7th Cir. 2017) (“[A]n employee's
statutory rights are distinct from his contractual rights and
as such must be analyzed separately with respect to his right
to enforce them in court.”). An employee's
participation in a collective agreement to arbitrate disputes
arising from a collective bargaining agreement does not
automatically preclude that employee from vindicating his or
her FLSA rights in federal court, even where the rights
provided are identical (e.g., time-and-a-half compensation
for hours worked over a forty-hour work week.). “While
courts should defer to an arbitral decision where the
employee's claim is based on rights arising out of the
collective bargaining agreement, different considerations
apply where the employee's claim is based on rights
arising out of a statute designed to provide minimum
substantive guarantees to individual workers.”
Barrentine v. Arkansas-Best Freight Systems, Inc.,
450 U.S. 728, 737 (1981). The Barrentine Court went
on to note that since unions are called on to balance
individual and collective interests, and because arbitrators
may be better versed in “the law of the shop, not the
law of the land, ” employees should retain the option
to pursue their individual statutory rights in federal court,
even where there is an option for redress by union-sponsored
arbitration. Id. at 742-43.
Defendant observes, the Supreme Court ruled in Epic
Systems v. Lewis, 138 S.Ct. 1612 (2018) that mandatory
arbitration clauses are enforceable even where the employee
seeks to vindicate claims arising from the Fair Labor
Standards Act. Lewis dealt with a contract that
unambiguously provided that arbitration was the exclusive
remedy for disputes between employer and employee.
Id. at 1619-20. A contract that does not clearly
disavow the parties' access to federal court cannot
compel arbitration, however. “The language of the
agreement … must be clear and unmistakable in order
for it to be enforced against an employee who wishes to