April 18, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:15-cv-07464 -
Charles R. Norgle, Judge.
Easterbrook, Kanne, and Rovner, Circuit Judges.
Rovner, Circuit Judge.
Vega filed this suit alleging that his former employer, New
Forest Home Cemetery, LLC ("New Forest"), by
failing to pay him for his final two weeks of work, violated
his right under the Fair Labor Standards Act of 1938, 29
U.S.C. § 206(b), to compensation at the minimum wage.
The district court entered summary judgment in favor of New
Forest, reasoning that Vega had not exhausted the grievance
procedure specified by the collective bargaining agreement
between New Forest and the union representing its workforce
before he filed suit. R. 25. Because the collective
bargaining agreement did not clearly and unmistakably waive
Vega's right to pursue his FLSA claim in a judicial
forum, we reverse.
purposes of reviewing the court's summary judgment
decision, we recite the facts in the light most favorable to
Vega. E.g., Thompson v. Holm, 809 F.3d 376,
378 (7th Cir. 2016).
worked for New Forest as a seasonal employee from May 2010 to
June 2015. His employment was conditioned upon membership in
the Service Employees International Union (the
"union"), and he was therefore subject to the terms
of a collective bargaining agreement between the union's
local and New Forest. Article VIII of that agreement sets
forth a mandatory four-step procedure culminating in
arbitration to resolve employee grievances. Section 8.1 of
the agreement defines "grievance" to include
"a claim or dispute concerning pay, hours[, ] or working
conditions or the interpretation or application of this
Forest terminated Vega from its employ on June 3, 2015. At
the time of his discharge, Vega was owed compensation for
roughly 54 hours of work in the preceding two weeks. New
Forest did not tender a final paycheck to Vega for the wages
owed to him, purportedly because it discovered that Vega
lacked a valid Social Security number and it did not know how
to lawfully make payment to him without such a number.
parties dispute whether Vega made efforts to initiate a
grievance regarding his final paycheck in accordance with the
collective bargaining agreement. Vega avers that he did. He
has submitted a declaration indicating that he raised the
matter with his union steward, Arzaius Lander, who told him
to contact Charles Jones, a union representative with the
local bargaining unit. Vega represents that he attempted to
reach Jones by telephone and left messages with his office,
but to no avail. Lander and Jones have both submitted
affidavits denying that Vega ever sought the union's
assistance with his unpaid wages.
having concluded that any further attempts to pursue the
grievance process would be futile, instead filed suit in the
district court. Count I of Vega's complaint asserts that
New Forest, in failing to pay him the wages owed for his last
two weeks of work, has violated section 6(b) of the FLSA,
which requires employers to pay an employee engaged in
interstate commerce no less than the federal minimum wage
(specified in section 6(a) of the statute) for his work. 29
U.S.C. § 206(b). Counts II and III assert pendent state
claims for violation of the Illinois Wage Payment and
Collection Act, 820 ILCS 115/1, et seq., and for
breach of contract.
Forest promptly moved to dismiss the suit because Vega had
not exhausted the grievance procedure specified in the
collective bargaining agreement for any dispute about wages,
and the district court ultimately entered summary judgment
against Vega on that basis as to his FLSA claim. R. 25. Although
it recognized that Vega was suing to enforce his rights under
the FLSA as opposed to the collective bargaining agreement,
the court believed it to be the "generally
established" rule that a union member "must follow
the [collective bargaining] agreement's established
grievance procedures before [he] can bring a lawsuit."
R. 25 at 3 (collecting cases). The court was willing to
assume, in light of Vega's representation that he
attempted to reach Jones by telephone on multiple occasions,
that he had followed the first step of the grievance process
(contacting the union) as set forth in the collective
bargaining agreement. R. 25 at 3. But the court found
Vega's account insufficient to establish that he had
otherwise exhausted his contractual remedies or that his
efforts to do so were frustrated by the union. R. 25 at 3.
The court entered judgment in favor of New Forest on that
basis, and relinquished jurisdiction over Vega's state
and common law claims. R. 25 at 3-4.
review of the district court's summary judgment decision
is, of course, de novo. E.g., Madison Mut. Ins.
Co. v. Diamond State Ins. Co., 851 F.3d 749, 753 (7th
Cir. 2017). The question posed is straightforward: Does the
collective bargaining agreement require Vega to resolve his
FLSA minimum wage claim through the specified grievance
procedure, or does it allow him ...