UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-10955

JIM BERNARD; WILLIAM T. CLYMER; JESSE ESPARAZA; ROGER GRAVES;

RAMANY KHAMMANH; ALFREDO MARQUEZ; NOUCHANH PHONMASAK;

EDDIE ROBERTS; J. D. VATOLE; DONOVAN WALTERS JR; GLEN WEBB,

Plaintiffs-Appellees,

VERSUS

IBP, INC. OF NEBRASKA,

Defendant- Appellant.

*****************************************

JOHNNY LEE JAMES; NORMAN TIMOTHY JONES; ANH TUAN TRAN;

TOBY VERWEY; LARRY DUANE STEPHENS; JOHNNY GUILLEN,

Plaintiffs-Appellees

VERSUS

IBP, INC. OF NEBRASKA

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

September 21, 1998

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

WISDOM, Circuit Judge:

IBP, Inc. of Nebraska, the operator of a beef processin g and packaging plant in Amarillo,

Texas, appeals from an adverse jury verdict awarding sixteen current and former maintenance1 29 U.S.C. § 216 (b).

2

workers monetary damages for IBP's violations of the Fair Labor Standards Act (FLSA). 1 We find

t hat (1) this suit is not precluded by the collective bargaining agreement (CBA) under which t he

plaint iffs are employed, (2) the evidence supports the jury's verdict, (3) the district court did not err

i n rejecting IBP's requested jury instructions, (4) the district court did not err in sustaining the

plaint iffs' objection to IBP's clo sing argument, and (5) the district court did not err in awarding

liquidated damages to the plaintiffs. We affirm.

I.

IBP employed the plaintiffs, who were members of Teamsters Local Union Number 577,

under a CBA providing f

o r one thirty minute meal break during each shift. IBP paid the plaintiffs

time and one-half for overtime worked. IBP did not compensate its employees for their thirty minute

meal break, however. Under the CBA and the FLSA, IBP maintained that the plaintiffs' meal breaks

were personal time for which they were not en t it led to compensation. The plaintiffs filed this suit

under the FLSA, arguing that they were entitled to payment for their meal breaks because they were

not free to use the time for their own purposes. The breaks, they maintained, were for the benefit of

IBP. The plaintiffs did not pursue their claims through the mandatory grievance handling and

arbitration procedures of their CBA.

The jury heard conflicting evidence concerning the plaint iffs' responsibilities during their meal

b reaks. The plaintiffs testified that they were not relieved of their responsibilities as maintenance

workers during these breaks. They testified that they were interrupted frequently by supervisors who

often asked them to repair equipment t hat was crucial to IBP's beef packaging and processing

operations. If the plant shut down because of an equipment failure, IBP would lose between $1,0003

and $1,300 a minute. Horns and sirens would sound, marking the period of shut-down. Even when

their breaks were not interrupted, the plaint iffs testified that they were not free to do as they pleased.

They were required to stay on the premises, and supervisors often used the meal break as a time to

meet with their maintenance crews to discuss the afternoon work schedule. IBP's testim ony

directly co nt radicted the plaintiffs' assertions. Several supervisors testified that the maintenance

employees, including the plaint iffs, were free to leave the plant during their meal breaks. Only on rare

occasion did the supervisors interrupt a meal break. When they did, the maintenance workers were

granted an additional thirty minute meal break during their shift. The plaintiffs also could refuse to

allow interruptions of their meal break to perform maintenance duties without their being subjected

to any adverse consequences.

At the close of the evidence, IBP moved for a judgment as a matter of law. The district court

denied that motion, and the case was submitted to the jury. The jury returned a verdict in favor of

the plaintiffs, awarding wages and overtime compensation for the meal breaks during the period in

question. The jury also awarded liquidated damages under the FLSA, attorneys' fees, and costs.

IBP filed another motion

fo r a judgment as a matter of law. Once again, the district court

denied that motion and IBP appeals.

II.

IBP argues that the district court should have dismissed this case because the plaint iffs’ FLSA

suit was preempted by their CBA. Article 10 of the CBA between IBP and the plaint iffs’ union

provides that “Should the Union or any individual employee desire to pursue a grievance pertaining

to the violation of the Agreement, or violation of employee’s working conditions, the matter shall be

handled according [to the CBA’s procedures].” Arbitration of the dispute is the final step provided2 Barrentine v. Arkansas-Best Freight System , 67 L.Ed.2d 641, 651 (1981).

3 Id . at 653-4 (citations omitted).

4 Id. at 656.

5 Id

.

4 for in the CBA. IBP maintains that the plaintiffs’ suit is one filed under the agreement, and, therefore,

is subject to Article 10's arbitration clause. The plaintiffs argue that their suit is one to enforce rights

created by statute that are separate from the CBA.

In Barrentine v. Arkansas-Best Freight System, Inc.

, the Supreme Court held that employees

could pursue a claim under the FLSA even though they had pursued unsuccessfully a similar claim

under the grievance-handling procedures of their CBA. The Court wrote:

“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.” 2

The Court continued:

“This Court’s decisions interpreting the FLSA have frequently emphasized the nonwaivable

nature of an individual employee’s right to a minimum wage and to overtime pay under the

Act . Thus, we have held that FLSA rights cannot be abridged by contract or otherwise

waived because this would ‘nullify the purposes’ of the statute and thwart the legislative

policies it was designed to effectuate.

. . . Moreover, we have held that congressio nally

granted FLSA rights take precedence over conflicting provisions in a collectively bargained

compensation agreement.” 3

The Court also acknowledged that arbitration of FLSA cla ims is inadequate because the FLSA

provid es for liquidated damages, attorneys’ fees, and costs. 4 In general, arbitrators do not have

authority to award these special damages. 5 Under B arrentine

, then, the plaint iffs’ right to pursue a6 See Wahl v. City of Witchita, Kansas , 725 F.Supp. 1133, 1145 (D. Kansas 1989).

7 96 F.3d 228 (7th Cir. 1996).

8 Id . at 232.

9 Id . at 235 (Cudahy, J., dissenting).

10 Fed. R. Civ. P. 50 (a) (1).

5 suit under the FLSA is completely independent from their rights under the CBA. 6

IBP relies upon Leahy v. City of Chicago, Illinois 7 to argue that the CBA precludes the

plaint iffs’ suit under the FLSA. In L eahy

, a panel of the Seventh Circuit, over a vigorous dissent,

concluded that police officers seeking overtime pay for meal breaks were required to pursue their

complaint under the grievance handling procedures of the officers’ CBA. 8 In his dissent, Judge

Cudahy wrote: “the assertion that merely by providing for overtime pay in its collective bargaining

agreement an employer may insulate itself from FLSA scrutiny borders on the preposterous. Yet the

majority’s opinion essentially boils down to just such an assertion.” 9 Not only is the majority position

“preposterous”, it completely ignores t he Supreme Court’s decision in B arrentine

. In the present

case, then, the district court correctly concluded that the plaint iffs’ suit was not preempte d by the

CBA.

III.

Next, IBP argues that the district court erred by denying its motion for a judgment as a matter

of law or, in the alternative, a new trial. We review the district court's denial of a motion for a

judgment as a matter o f law t o determine whether there is a legally sufficient evidentiary basis to

support the jury' s verdict. 10 A motion for a judgment as a matter of law should be denied when,

viewing all of the evidence in the light most favorable to the jury's verdict, a reasonable jury could11 Bellow s v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir. 1997); Boeing v. Shipman

,

411 F.2d 365, 374-5 (5th Cir. 1969) (en banc) overruled on other grounds, Gautreaux v.

Scurlock Marine, Inc. , 107 F.3d 331 (5th Cir. 1997) (en banc).

12 Keeler v. Richards Mfg. Co. , 817 F.2d 1197, 1200 (5th Cir. 1987).

13 Id

.

14 29 C.F.R. § 785.19.

15 The Code of Federal Regulations provides for meal periods as follows:

(a) Bona fide meal periods. Bona fide meal periods are not work time. Bona fide

meal periods do not include coffee breaks or time for snacks. These are rest periods. The

employee must be completely relieved from duty for the purposes of eating regular meals.

Ordinarily, 30 minutes or more is long enough for a bona fide meal period. A shorter

period may be long enough under special conditions. The employee is not relieved if he is

required to perform any duties, whether active or inactive, while eating. For example, an

office employee who is required to eat at his desk or a factory worker who is required to

be at his machine is working while eating. ...

(b) Where no permission to leave premises. It is not necessary that an employee

be permitted to leave the premises if he is otherwise completely free from duties during the

meal period.

29 C.F.R. § 785.19.

6 have fo und as this jury did. 1 1 We review the denial of a motion for a new trial for abuse o f

discretion. 12 "A jury verdict . . . may be reversed and a new trial ordered only if the verdict is against

t he great weight of the evidence." 1 3 IBP maintains that the jury's verdict is not supported by t he

evidence or, at least, is against the great weight of the evidence.

“Bona fide meal periods are not worktime.” 14 To be classified as a bona fide meal period, 29

C.F.R. § 785.19 provides that an employee “must be completely relieved from duty for the purpose

of eating meals” during that period. 15 When applying this test, courts have employed a “predominant16 See Roy v. County of Lexington, South Carolina , 141 F.3d 533, 544 (4th Cir.

1998); Reich v. Southern New England Telecommunications Corp. , 121 F.3d 58, 63-5 (2d Cir.

1997); Leahy v. City of Chicago, Illinois , 96 F.3d 228, 230-1 n.2 (7th Cir. 1996); Henson v.

Pulaski County Sheriff Dept. , 6 F.3d 531, 534 (8th Cir. 1994); Lamon v. City of Shaw nee,

Kansas , 972 F.2d 1145, 1155 (10th Cir. 1992). In Lee v. Coahoma County, Mississippi , we

considered whether sheriff's deputies were entitled to compensation for their meal breaks when

those breaks were short, unscheduled, and subject to interruption for work-related reasons. 937

F.2d 220, 225 (5th Cir. 1991). We concluded that the deputies were not entitled to compensation

for their meal breaks. Although we did not expressly adopt the "predominant benefit test" in that

case, our analysis clearly shows that this is the test we were applying. See id. at 225. Today , we

adopt the "predominant benefit test" used by most circuit courts.

17 Roy , 141 F.3d at 544.

18 Id

.

19 Id . at 545.

20 Boeing , 411 F.2d at 375.

21 Id . at 374-5.

7 benefit test”. 16 The critical question is whether the meal period is used predominantly or primarily

for the benefit of the employer or for the benefit of the employee. 17 The employer bears the burden

to show that meal time qualifies for this exception from compensation. 18

Whether meal time is predominantly for the benefit of the employer is a question of fact that

is ordinarily resolved by the trier of fact after hearing all of the evidence. 19 Our role is not to reweigh

the evidence, substituting our credibility choices for that of the jury. 20 Instead, we view the evidence

in the light most favorable t o the jury's verdict. 2 1 In the present case, we conclude the evidence is

sufficient to support the jury's verdict. Several maintenance workers testified that they were required

to wear their radios and tools during lunch. They could not leave the premises during their breaks.

Often, their lunc hes were interrupted by maintenance problems requiring the workers’ immediate

attention. In these circumstances, we conclude that the meal periods were predominant ly for the22 Coughlin v. Capitol Cement Co. , 571 F.2d 290, 300 (5th Cir. 1978).

23 Martin v. City of New Orleans , 678 F.2d 1321, 1325 (5th Cir. 1982) (quoting

Dw oskin v. Rollins, Inc. , 634 F.2d 285, 293 (5th Cir. 1981)), cert. denied , 459 U.S. 1203 (1983).

24 Houston v. Herring , 562 F.2d 347, 349 (5th Cir. 1977) (quoting Borel v.

Fibreboard Paper Products Corp. , 493 F.2d 1076, 1100 (5th Cir. 1973)).

8 benefit of the employer.

IV.

IBP also argues that the district court erred in inst ruct ing the jury regarding the

compensability of meal breaks. When reviewing a district court’s charge to the jury, we consider the

instructions on the “whole, in view of the allegations of the complaint, the evidence presented and

the arguments of counsel to determine whether the jury was misled and whether it understood the

issues presented.” 22 “If the charge leaves the reviewing court with ‘substantial and ineradicable doubt

as to whether the jury has been properly guided in its deliberations’ it cannot stand.” 23 Nevertheless,

“‘[t]he test is not whether the charge was faultless in every particular but whether the jury was misled

in any way and whether it had understanding of the issues and its duty to determine those issues.’” 24

The jury instructions submitted by the district court state:

Under the Fair Labor Standards Act, employees must be paid for time spent predominantly

for the benefit of the employer. On the other hand, if the time is spent predominantly for the

employee’s benefit, then it is not compensable. Whether the time was spent predominantly

for the employer’s or employee’s benefit depends on all the facts and circumstances of each

case. The crit ical issue is whether the employee can use the time effectively for his or her

own purposes. Among the factors that yo u may consider are whether the employees are

subject to re al limitations on their personal freedom which inure to the benefit of the

employer; whether restrictions are placed on the employee’s activities during those ti m es,

s uch as whether or not the employee may leave the work site if he chooses ; whether the

employee remains responsible for substantial work-related duties; and how frequently the time

is actually interrupted by work-related duties.

IBP complains that these instructions incorrectly advise the jury of factors other than whether25 6 F.3d at 534 (citing Bright v. Houston N.W. Med. Ctr. Survivor, Inc ., 934 F.2d

671, 677 (5th Cir. 1991)).

26 See Roy , 141 F.3d at 545-6; Reich , 121 F.3d at 65; Lamon , 972 F.2d at 1157-8.

27 During a conference in chambers before trial, plaintiffs attorney noted that “one

dispute that has prevented us from reaching agreement [on a stipulation to damages] is I think the

9 the meal break is “predominantly for the benefit of the employer”. Specifically, IBP maintains that

the district court erred by including a statement that “[t]he critical issue is whether the employer can

use the ti me effectively for his or her own purposes”. IBP also argues that the district court’s

instruction was improper because it called for “an all-or-nothing answer”. The jury could award

compensation for all meal periods or it could order compensation for none; there were no alternative

options for the jury to consider. We find that the district court did not err.

The language used by the district court accurately reflects the standard and factors employed

by the courts when applying the predominant benefit test. The statement t hat “the critical issue is

whether the employee can use the time effectively for his or her own purposes” is taken directly from

the Eighth Circuit’s decision in Henson v. Pulaski County Sheriff Dept. 25 When applying this test,

the courts have focused upon the limitations and restrictions placed upon the employees, the extent

to which those restrictions benefit the employer, the duties for which the employee is held responsible

during the meal p erio d, and the frequency in which meal periods are interrupted. 2 6 These are

appropriate factors to be considered.

The district court’s “all-or-nothing” instruction was also proper. IBP stipulated to the

calculation of the number of meal periods and the amount of actual damages to be awarded in the

event that liabilit y was found. This stipulation is signed by both parties. IBP’s argument that the

stipulation was of “no moment” is not supported by the record. 27 Furthermore, the issue presenteddefendants take the position that even if the employees are on call and even if that time is

compensable, that they should only be compensated for the days they were specifically called to

go perform repairs on the machinery”. After this statement, the parties’ attorneys discussed a

damage stipulation with the court. Defense counsel agreed to stipulate to the damages and signed

that stipulation without objecting to the manner in which the damages were calculated. A

reasonable interpretation of this stipulation, then, is that the parties resolved their differences.

Defense counsel’s attempt to re-characterize the stipulation in IBP’s favor when arguing over the

jury instructions at the close of trial is unpersuasive.

28 See United States v. Taylor , 680 F.2d 378, 380 (5th Cir. 1982); Commercial

Credit Equip. Corp. v. L & A Contracting Co. , 549 F.2d 979, 981 (5th Cir. 1977). See also

United States v. Santiago , 46 F.3d 885, 892 (9th Cir. 1995). Vanskike v. Union Pac. R.R. Co.

, 725 F.2d 1146, 1149 (8th Cir. 1984).

10 in this case is whether the plaint iffs were ent it led t o compensation for their meal breaks under the

FLSA when they were required to remain on-call and ready to handle maintenance problems during

those breaks. The maintenance workers were performing services f o r IBP even when their meal

breaks were not interrupted; they were available to handle any conditions that might arise. Given the

parties’ stipulation, it was not necessary for the district court to submit to the jury t he question of

how many meal breaks were for the benefit of IBP.

V.

IBP argues that t he dist rict court erred in sustaining the plaintiffs’ objection to defense

counsel’s closing arguments. Defense co unsel at t empted to argue that the plaintiffs were seeking

compensation for all of their meal breaks even though many of those breaks were not interrupted.

We review the district court’s decision to sustain an objection during closing arguments for

abuse of discretion. 28 We find that the district court did not abuse its discretion. The number of days

for which the plaint iffs should be compensated was part of th e damages calculation that was

submitted to the district court on the parties’ stipulation. The j ury was not asked to resolve thi s

question. It was not appropriate, then, for defense counsel to argue this point to the jury.29 29 U.S.C. § 216.

30 29 U.S.C. § 260.

31 LeCompte v. Chrysler Credit Corp. , 780 F.2d 1260, 1263 (5th Cir. 1986).

32 Mireless v. Frio Foods, Inc. , 899 F.2d 1407, 1415 (5th Cir. 1990).

33 Lee v. Coahoma County , 937 F.2d 220, 226 (5th Cir. 1990).

11 VI.

Finally, IBP argues that the district court erred in awarding liquida ted dam ages to the

plaint iffs. A n employer who violates the FLSA is liable for the unpaid wages and “an additional equal

amount as liquidated damages”. 29 Section 260 of Title 29 qualifies this automatic award of liquidated

damages, however:

[I]f the employer shows to the satisfaction of the court that the act or omission giving rise to

such action was in good faith and that he had reasonable grounds for believing that his act or

omission was not a violation of the [FLSA], the court may, in its sound discretion, award no

liquidated damages or award any amount thereof not to exceed the amount specified in § 16

of this title. 30

“The purpose of [§ 260] was to mitigate the harshness of the then- strict liabilit y offense of violating

Section 216, with its attendant double-damage assessment.” 31 Nevertheless, the emplo yer faces a

“substantial burden” of demonstrating good faith and a reasonable belief that its a ctions did not

violate the FLSA. 32 And, the award of liquidated damages remains within the discretion of the trial

court; “even if the district court determines that the employer’s actions were in good faith and based

on reasonable grounds, the court has discretion to award liquidated damages.” 33

IBP sets forth several factors to show that its actions were in good faith a n d based on a

reasonable belief t hat it did not violate the FLSA. IBP insists that liquidated damages are not

warranted because (1) the legal precedent s did not advise IBP that its employment practices were34 A reasonable belief may be found where the employer purposefully “engaged in the

acts proven to be violations [ of the FLSA] but did so under a mistaken, although reasonable

belief, that its acts were in conformity with the law”. See Martinez v. Food City, Inc. , 658 F.2d

369, 376 (5th Cir. 1981).

35 A decision made “above board and justified in public” may satisfy the good faith

and reasonableness test. Walton v. United Consumers Club, Inc. , 786 F.2d 303, 312 (7th Cir.

1986).

36 29 U.S.C. § 260.

12 unlawful, 34 (2) its employment practices were not concealed, 3 5 (3) none of t he plaintiffs ever

complained or filed grievances about the meal break policies before this suit, (4) several maintenance

workers testified that they engaged in activities during their meal breaks t hat were solely for their

benefit, and (5) the jury found that IBP’s violations were not wilful.

Even if IBP acted in good faith based u po n a reaso nable belief that it did not violate the

FLSA, the district court still had discretion to award liquidated damages. 36 Given IBP’s violation of

the FLSA, we conclude that the district court did not err in exercising its discretion to award

liquidated damages.

VII.

For the foregoing reasons, the judgment of the district court is AFFIRMED.