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Kingborn Morris, Rafael Mateo, and v. Alle Processing Corp.

May 6, 2013

KINGBORN MORRIS, RAFAEL MATEO, AND DARNELL PIERRE, ON BEHALF OF ALL OTHER PERSONS
SIMILARLY SITUATED WHO WERE EMPLOYED BY ALLE
PROCESSING CORP., ALBERT WEINSTOCK, EDWIN WEINSTOCK, SAM HOLLANDER, AND MENDEL WEINSTOCK, PLAINTIFFS,
v.
ALLE PROCESSING CORP., ALBERT WEINSTOCK, EDWIN WEINSTOCK, SAM HOLLANDER, AND MENDEL WEINSTOCK, DEFENDANTS.



The opinion of the court was delivered by: Azrack, United States Magistrate Judge:

For Online Publication Only

MEMORANDUM AND ORDER

Plaintiffs Kingborn Morris, Rafael Mateo, and Darnell Pierre, former employees of defendant Alle Processing Corporation ("Alle"), bring this action on behalf of a putative class against Alle, Albert Weinstock, Edwin Weinstock, Sam Hollander, and Mendel Weinstock (collectively, the "defendants"). Plaintiffs allege that defendants violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, by failing to pay overtime wages and New York Labor Law ("NYLL") § 193, Title 12 of New York Codes, Rules and Regulations ("NYCRR") §§ 142--2.2 and 142--2.4, and Title 6 of New York City Administrative Code § 6--109 by failing to pay earned wages, overtime wages, and spread of hours compensation.

On December 22, 2009, this Court conditionally certified a collective action for plaintiffs' federal law claim, pursuant to the FLSA, 29 U.S.C. § 216(b). Dec. 22, 2009 Order, ECF No. 20. Currently before the Court is plaintiffs' motion for class certification, pursuant to Federal Rule of Civil Procedure 23, for plaintiffs' state law claims. Plaintiffs also request authorization to send their proposed notice to prospective class members.

For the reasons set forth below, the Court grants plaintiffs' motion for class certification.

BACKGROUND

1.Facts

Alle is a New York corporation with its principal location, a food processing plant (the "plant"), located at 56-20 59th Street, Maspeth, New York. Compl. ¶¶ 11, 25, ECF No. 1. Individual defendants Albert Weinstock, Edwin Weinstock, Sam Hollander, and Mendel Weinstock are officers and principal shareholders of Alle. Id. ¶¶ 13--16. Alle is "a vertically integrated firm, engaged in the slaughtering, processing selling and distributing of Glatt Kosher fresh and frozen beef, veal, lamb and poultry." Pls.' Mem. in Supp. Mot. for Class Certification ("Pls.' Mem.") at 2 (quoting www.alleprocessing.com), ECF No. 54.

Plaintiffs are former food service employees of defendants' plant. Compl. ¶ 25. Plaintiffs allege that defendants failed to pay them and other current and former Alle employees:

(1) minimum wages for all hours worked, including (a) time spent donning and doffing uniforms and (b) time defendants shaved from employees' time cards; (2) overtime compensation at time- and-a-half the regular hourly wage for all hours worked beyond forty each week; and (3) spread of hours compensation for hours worked over ten in a single day. Id. ¶¶ 2, 39--40; Pls.' Mem. at 2; Pls.' Reply Mem. in Supp. Mot. Class Cert. ("Pls.' Reply") at 1--2, ECF No. 51. Plaintiffs Morris and Mateo have submitted declarations in support of the instant motion. Decl. of Kingborn Morris ("Morris Decl."), Decl. of LaDonna Lusher in Supp. Pls.' Mot Class Cert. ("Lusher Decl.") Ex. 1, ECF No. 53; Decl. of Rafael Mateo ("Mateo Decl."), Lusher Decl. Ex. 2.

Morris worked at the plant from December 2007 until May 2008, during which time he worked in the Food Processing Department, the Freezer Department, and the Smoke House Department. Morris Decl. ¶¶ 3--4. Every day Morris was required to wear a uniform consisting of a coat, boots, gloves, hairnet, hardhat, jacket, and glasses. Id. ¶ 10. Morris typically worked no fewer than ten hours per day, six days per week, and was paid $7.15 per hour by check. Id. ¶¶ 7--13.

Mateo worked at the plant from July 2006 until November 2009, during which time he worked in the Chicken Department. Mateo Decl. ¶ 3; Pls.' Mem. at 2. Mateo was also required to wear a uniform, which consisted of a coat, boots, gloves, hairnet, and hardhat. Id. ¶ 9. Mateo typically worked no fewer than ten hours per day on Monday through Thursday and no less than seven hours per day on Fridays. Id. ¶ 6. Morris was paid $9.00 per hour by check. Id. ¶ 12.

Both Morris and Mateo maintain that during their respective periods of employment Alle employed several hundred other individuals. Morris Decl. ¶ 6 (claiming approximately 300 other employees); Mateo Decl. ¶ 5 (claiming approximately 500 other employees). They claim that these employees usually performed tasks similar to those performed by plaintiffs. Morris Decl. ¶ 6; Mateo Decl. ¶ 5.

Morris and Mateo also claim that they received neither overtime compensation for all of the hours worked over forty each week nor an extra hour of pay when they worked over ten hours in a day. Morris Decl. ¶¶ 14--15; Mateo Decl. ¶¶ 13--14. They believe that defendants also failed to properly pay their co-workers for all hours worked because Morris and Mateo personally witnessed other employees working over forty hours each week and more than ten hours per day. Morris Decl. ¶ 17; Mateo Decl. ¶ 16.

Both also state that their respective supervisors told them to punch in after they put on their uniform and to punch out before taking off their uniform. Morris Decl. ¶ 12; Mateo Decl. ¶ 11. As a result, Morris and Mateo claim they were never paid for the time they spent putting on and taking off their uniforms. Morris Decl. ¶¶ 10--11, 16 (claiming approximately thirty minutes each day spent putting on and taking off uniform); Mateo Decl. ¶¶ 9--10, 15 (claiming approximately sixty minutes spent each day putting on and taking off uniform). They each witnessed other workers put on their uniforms before punching in and taking off their uniforms after punching out. Morris Decl. ¶¶ 10--11 (claiming he personally witnessed no fewer than thirty to forty other workers follow this practice); Mateo Decl. ¶¶ 9--10, 15 (claiming he personally witnessed no fewer than thirty workers follow this practice).

Morris and Mateo further maintain that many of Alle's employees were foreign-born, non-English speaking immigrants, who are unfamiliar with the American legal system and might be afraid to pursue claims for unpaid wages on their own. Morris Decl. ¶ 18; Mateo Decl. ¶ 17. They also note that many employees worked at Alle for only a short period of time. Morris Decl. ¶ 18; Mateo Decl. ¶ 17.

Additionally, four employees, who have opted into the FLSA collective action, Effrain Irizarry, David Benito, Kenneth Patterson, and Robert Carl Lanza (collectively "opt-in declarants"), have submitted declarations claiming that they were not paid their proper wages. Decl. of Effrain Irizarry ("Irizarry Decl.") ¶ 3, Lusher Decl. Ex. 3; Decl. of David Benito ("Benito Decl.") ¶ 3, Lusher Decl. Ex. 4; Decl. of Kenneth Patterson ("Patterson Decl.") ¶ 3, Lusher Decl. Ex. 5; Decl. of Robert Carl Lanza ("Lanza Decl.") ¶ 3, Lusher Decl. Ex. 6. These opt-in declarants worked in different departments, earned different hourly wages, and worked different hours. See Irizarry Decl. ¶¶ 5, 7, 15; Benito Decl. ¶¶ 5, 8, 17; Patterson Decl. ¶¶ 6, 8, 16, 17; Lanza Decl. ¶¶ 5, 8, 16. Each opt-declarant was required to wear a uniform. Irizarry Decl. ¶ 10 (apron, boots, helmet, hairnet, and gloves); Benito Decl. ¶ 12 (apron, boots, hardhat, hairnet, gloves, and coat); Patterson Decl. ¶ 11 (boots, gloves, freezer suit, and back brace); Lanza Decl. ¶ 11 (boots, hardhat, hairnet, gloves, and coat). However, they each claim that their supervisors told them to punch in after they put on their uniform and to punch out before taking off their uniform and that, as a result, they were not paid for the time spent putting on or taking off their uniform. Irizarry Decl. ¶¶ 10, 12--14; Benito Decl. ¶¶ 12, 14--16; Patterson Decl. ¶¶ 11, 13--15; Lanza Decl. ¶¶ 11, 13--15. Each of these opt-in declarants personally witnessed other workers following the same practice. Irizarry Decl. ¶ 11; Benito Decl. ¶ 13; Patterson Decl. ¶ 12; Lanza Decl. ¶ 12.

Further, each opt-in declarant claims that he was not paid an additional hour of pay when he worked over ten hours per day. Irizarry Decl. ¶ 16; Benito Decl. ¶18; Patterson Decl. ¶ 18; Lanza Decl. ¶ 18. Opt-in declarant Lanza also claims that he was not paid overtime for all of the hours he worked over forty each week. Lanza Decl. ¶ 17. Like Morris and Mateo, each opt-in declarant alleges that many of the Alle employees were foreign-born, non-English speaking immigrants who might be afraid to sue, and that many employees worked at Alle for only a short period of time. Irizarry Decl. ¶ 17; Benito Decl. ¶ 19; Patterson Decl. ¶ 19; Lanza Decl. ¶ 19.

In addition to these declarations, plaintiffs have submitted employee time cards for named plaintiffs Mateo and Pierre, opt-in declarants Irizarry and Benito, and several other opt-in plaintiffs. Lusher Decl. Exs. 9--15; Reply Decl. of LaDonna Lusher in Supp. Pls.' Mot Class Certification ("Lusher Reply Decl.") Exs. 1--3. The time cards, which each cover a week-long period, indicate when an employee punched in and out each day and the total hours the employee worked. See e.g., Mateo Employee Time Card, Lusher Decl. Ex. 9. The time cards also have a "punch audit summary" that records when an employee's punch in or out time has been altered. Id. Almost every time card reflects at least one punch in time having been changed to a later time, resulting in fewer total hours for that week. See Lusher Decl. Exs. 9--15; Lusher Reply Decl. Exs. 1--3. Based on these alterations, plaintiffs claim that defendants illegally shaved time from the employees' time records. Pls.' Mem. at 6.

Defendants, in response, have submitted an affidavit from Ivan Talavera, Alle's Plant Manager and Director, which is the same affidavit defendants submitted in opposition to plaintiffs' motion for conditional certification of the collective action in this case. Aff. of Ivan Talavera ("Talavera Aff."), Affirm. of Jeffery A. Meyer in Opp. to Mot. Class Certification ("Meyer Affirm.") Ex. A, ECF No. 49. In short, Talavera asserts that: (1) plaintiffs do not share common characteristics with other Alle employees because of the various departments, work duties, and job descriptions at Alle, id. ¶ 9; (2) the only clothes Alle employees put on prior to punching in are boots, a hardhat, and a coat, which takes one and a half minutes to put on, and there is no policy that they must put these clothes on before punching in, id. ¶¶ 11, 13, 20; (3) Alle employees are paid at the proper overtime rate when they work in excess of forty hours per week, id. ¶¶ 29--30; and (4) adjustment to punch in times "may be made from time to time" when it was "impossible for an employee to work" on a production line before the line started at a specific time, when employees punched in for co-workers, or when employees refused to punch in or out for a shift, id. ¶ 31.

Defendants have also submitted disciplinary reports for Mateo and Pierre, Meyer Affirm. Exs. E, G, and evidence regarding recent union activity at Alle, id. Exs. B--H. In November 2008, the National Labor Relations Board (the "NLRB") held an election to certify the Local 342 United Food and Commercial Workers (the "Union") as the exclusive collective bargaining representative of Alle's employees. Id. ¶¶ 6, 8; NLRB Tally, Meyer Affirm. Ex. C. The result of the election was in favor of Alle, with a majority of Alle's employees voting against Union representation. See NLRB Tally. Mateo and Pierre not only supported the Union but utilized Union representation in unfair labor practice charges against Alle. See Meyer Affirm. ¶¶ 10--14; id. Exs. D, F. Specifically, the Union, on behalf of Mateo and Pierre, alleged that both employees were terminated due to supporting the Union and engaging in Union activity. Meyer Affirm. ¶¶ 10, 13; id. Exs. D, F. Defendants point to the disciplinary reports against Mateo and Pierre to show that both were terminated because of their disciplinary records. Meyer Affirm. ¶¶ 11, 13.

Defendants did not submit any time cards or payroll records. See Meyer Affirm. Exs. A--I.

2.Procedural History

On September 8, 2009, plaintiffs moved to conditionally certify a collective action pursuant to the FLSA, 29 U.S.C. § 216(b), which the Honorable Sandra L. Townes referred to me for decision. By Order dated December 22, 2009, I granted plaintiffs' motion to conditionally certify a collective action finding that plaintiffs had demonstrated that they were similarly situated by alleging that: "(1) a large number of Alle employees worked over 40 hours a week; (2) Alle routinely did not pay plaintiffs for work performed in excess of 40 hours; (3) a majority of Alle employees originate from foreign countries; and (4) defendants did not assert individualized defenses against specific class members." Dec. 22, 2009 Order at 4. By the same Order, I authorized plaintiffs' proposed notice to putative class members. Id. at 6.

Pursuant to my Publication Order dated January 5, 2010, defendants furnished a list containing the names and addresses of 2,000 individuals employed by Alle from December 3, 2002 through the present. Jan. 5, 2010 Order ¶ 2, ECF No. 23; Lusher Decl. ¶ 2 n. 1. Plaintiffs subsequently sent notice of the collective action to these individuals. Lusher Decl. ¶ 2 n. 1; Pls.' Mem. 7 n. 4. Seventy-eight of the 2,000 potential claimants opted into the collective action (the "opt-ins" or "opt-in plaintiffs"). See Notice of Consent Filings, ECF No. 25; Consent to Class Action, ECF No. 26.

On September 13, 2011, during settlement negotiations, the parties consented to my conducting all further proceedings in this case.*fn1 Consent to Magistrate Judge, ECF No. 32.

Recently, on September 19, 2012, defendants served offers of judgment on the named plaintiffs and opt-ins. Meyer Affirm. ¶ 4. As of October 19, 2012, thirty-three opt-in plaintiffs, including Benito and Irizarry, accepted defendants' offer. Id. ¶ 5.

Plaintiffs now move for class certification, pursuant to Federal Rule of Civil Procedure 23, of a class of Alle employees based on plaintiffs' state law ...


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