Opinion
No. 90-CV-0712.
Decided December 3, 1990.
Baden, Jones Scheper Co., L.P.A., David H. Landis and David T. Davidson, for petitioner.
Wood Lamping and Paul R. Berninger, for respondent.
This matter comes before the court on petitioner's request for perpetuation of testimony and evidence for the reason that petitioner believes that the Wage and Hour Division of the Department of Labor (the "division") will be bringing an action against Sheriff John Van Camp to recover damages for uncompensated work performed by the deputies in the sheriff's department. Due to the division's expected investigation into this matter, petitioner alleges that it is currently unable to file suit. Petitioner fears that certain critical documents might be destroyed in advance of any action being initiated by the division; thus, it seeks to enjoin Sheriff Van Camp from destroying time sheets or payroll records for the time period from April 14, 1985 to the present. Petitioner also seeks to depose Sheriff Van Camp and to have him bring the aforementioned documents to the deposition.
Seeking to dismiss this action, Sheriff Van Camp asserts that petitioner does not have standing to petition the court, as it would not have standing to bring suit in this matter itself under the Fair Labor Standards Act ("FLSA"), Section 201 et seq., Title 29, U.S.Code. In response to this argument, petitioner argues that R.C. 1745.01 allows it to sue on behalf of its members, and that R.C. 1745.01 does not conflict with provisions of the FLSA. Petitioner's argument is not well taken for reasons set forth below.
As a prerequisite to obtaining a court order for perpetuation of evidence under Civ.R. 27 or for injunctive relief, the petitioner must show that it has a cognizable interest itself in the action. See Civ.R. 27(A)(1)(a). See, also, In re Petition of Commt. on Rule 28 of Cleveland Bar Assn. (App. 1933), 15 Ohio Law Abs. 106. In accordance with the FLSA, petitioner has no interest in any suit which could possibly be maintained by the sheriff's deputies in the future and, thus, it cannot maintain this action.
The FLSA provides that an action may be maintained "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated * * * [and that] [n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. * * *" Section 216(b), Title 29, U.S.Code. This section has been strictly interpreted to preclude labor unions from maintaining actions on behalf of their members, with courts holding that the right of action belongs to the employees, individually, as the employee is the one who must choose whether to "opt in." Equal Employment Opportunity Comm. v. American Tel. Telegraph Co. (E.D.Pa. 1973), 365 F. Supp. 1105, 1120-1121, modified on other grounds (C.A.3, 1974), 506 F.2d 735; Usery v. Bd. of Public Edn. (W.D.Pa. 1976), 418 F. Supp. 1037; Internl. Assn. of Firefighters v. Rome, Ga. (N.D.Ga. 1988), 682 F. Supp. 522, 533-534. While petitioner is correct in stating that an action may be maintained on behalf of an employee, it fails to recognize that such an action may only be brought by similarly situated employees with the employee's consent, as delineated in Section 216(b), Title 29, U.S.Code. Furthermore, R.C. 1745.01 does not purport to authorize the petitioner to bring any suit, regardless of the subject matter, on behalf of any, some or all of its members. West Clermont Edn. Assn. v. West Clermont Bd. of Edn. (1980), 67 Ohio App.2d 160, 21 O.O.3d 457, 426 N.E.2d 512, paragraph two of the syllabus. Since petitioner does not have standing to initiate an action under the FLSA, it likewise does not have standing to petition this court for an injunction or for perpetuation of the evidence.
So far the court has discussed petitioner's standing in terms of the FLSA, and petitioner does not deny that FLSA is the primary basis upon which the sheriff's deputies would assert any future claims for unpaid overtime compensation. In any event, the court holds that petitioner also lacks standing to sue under a common-law contractual theory because it lacks the privity required to maintain a contract action and it is not the real party in interest. See Cincinnati, Hamilton Dayton R.R. Co. v. Metropolitan Natl. Bank (1896), 54 Ohio St. 60, 42 N.E. 700; West Clermont Edn. Assn., supra.
As the law currently stands in Ohio, the sheriff's deputies would not have a statutory cause of action under R.C. Chapter 4111 since deputies are excluded from the definition of "employees" who can bring an action under R.C. 4111.03. See R.C. 4111.01(E)(7). Therefore, petitioner, also, has no standing to bring an action under state law.
Upon consideration of the foregoing, the court holds that petitioner lacks standing to seek an injunction or perpetuation of testimony, since it has no standing to assert the underlying rights; hence, respondent's motion to dismiss is hereby granted.
Cause dismissed.