Bascom v. Kennecott Utah Copper LLC

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UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
AUSTIN BASCOM, Individually and for
Others Similarly Situated,
Plaintiff,
v.
KENNECOTT UTAH COPPER LLC,
Defendant.
MEMORANDUM DECISION AND
ORDER DENYING [ECF NO. 31]
DEFENDANT’S MOTION FOR
RECONSIDERATION
Case No. 2:25-cv-00505-DBB-JCB
District Judge David Barlow
Before the court is Defendant Kennecott Utah Copper LLC’s Motion for
Reconsideration,1 Plaintiff Austin Bascom’s response brief,2 and Defendant’s reply.3 Plaintiff is
an employee of Defendant. Plaintiff brings a collective action, alleging that Defendant failed to
pay all the overtime wages owed to him and other similarly situated employees under the Fair
Labor Standards Act (“FLSA”). Defendant seeks reconsideration of the court’s previous order
denying its motion to dismiss.4 Having reviewed the briefing and the case law, the court finds
that oral argument is not necessary.5
1 Mot. for Reconsideration (“MFR”), ECF No. 31, filed December 5, 2025.
2 Bascom’s Resp. in Opp’n to Mot. for Reconsideration (“Opp.”), ECF No. 33, filed December 19, 2025.
3 Reply in Supp. of Def.’s Mot. for Reconsideration (“Reply”), ECF No. 34, filed January 2, 2026.
4 See Memo. Decision and Order Denying Def.’s Mot. to Dismiss (“Order”), ECF No. 28, filed November 19, 2025.
5 See DUCivR 7-1(g).
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BACKGROUND
I. 	Factual Background
As the relevant facts are unchanged, the court restates the background from its earlier
order:
Mr. Bascom brings this collective action on behalf of himself and other Kennecott
employees “who were paid a bonus and/or shift differential that was not included
in their regular rate of pay.” Kennecott has employed Mr. Bascom as a haulage
operator since 2021. Mr. Bascom and the other similarly situated Kennecott
employees frequently work more than 40 hours a week.
Kennecott pays Mr. Bascom and the other employees an hourly wage and other
non-discretionary bonuses, such as production and safety bonuses and shift
differentials. Kennecott pays the employees overtime at 1.5 times their hourly
wage, but Kennecott does not include the non-discretionary bonuses in their
calculations for overtime purposes. The terms of Mr. Bascom’s and the other
similarly situated employee’s pay are set by a collective bargaining agreement
(“CBA”) between Kennecott and a union.
On June 24, 2025, Mr. Bascom sued Kennecott for failing to pay overtime as
required under the FLSA. Mr. Bascom alleges that the FLSA requires Kennecott to
include the non-discretionary bonuses as part of the employee’s regular rates of pay
for overtime purposes. The Complaint makes no mention of the CBA, and Mr.
Bascom does not claim that he is not receiving the correct amount of pay under the
CBA.6
II. 	Procedural Background
On August 7, 2025, Defendant filed its Motion to Dismiss.7 Defendant argued that: (1)
the National Labor Relations Act (“NLRA”) preempted Plaintiff’s claim under Garmon
preemption; and (2) Section 301 of the Labor-Management Relations Act (“LMRA”) also
preempted Plaintiff’s claim.8 On November 19, 2025, the court entered an order rejecting both of
6 Order 2–3.
7 Mot. to Dismiss, ECF No. 19, filed August 7, 2025.
8 Order 1.
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Defendant’s arguments and denying the motion to dismiss (the “opinion”).9 On December 5,
2025, Defendant filed the Motion for Reconsideration at issue here.10
STANDARD
The Federal Rules of Civil Procedure “do not recognize a motion to reconsider.”11
However, under Rule 54(b), any decision adjudicating fewer than all claims “may be revised at
any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.”12 “[D]istrict courts generally remain free to reconsider their earlier interlocutory
orders.”13 “Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice.”14 However, such motions “are inappropriate vehicles to reargue
an issue previously addressed by the court when the motion merely advances new arguments, or
supporting facts which were available at the time of the original motion.”15
DISCUSSION
Defendant argues that the opinion contains five “inconsistencies and misinterpretations of
the facts and controlling law, which warrant reconsideration of Defendant’s MTD.”16 First,
Defendant argues that the opinion acknowledged there was an arguable NLRA violation but then
did not apply Garmon preemption. Second, Defendant argues that the opinion’s citation to
Chavez v. Albuquerque is mistaken. Third, Defendant argues that the opinion’s analysis of Epic
9 Order.
10 MFR.
11 Ysais v. Richardson, 603 F.3d 1175, 1178 n.2 (10th Cir. 2010).
12 Fed. R. Civ. P. 54(b).
13 Been v. O.K. Indus., Inc., 495 F.3d 1217, 1225 (10th Cir. 2007).
14 Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
15 Id.
16 MFR 3.
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Systems Corp. v. Lewis is inaccurate. Fourth, Defendant argues that the opinion’s reliance on
Barrentine v. Ark.-Best Freight system is misplaced because the reasoning is inapplicable or was
later rejected. Fifth, Defendant argues that the opinion’s determination that “Plaintiff’s claim
depends on what was actually paid to him, not what was owed to him under the CBA”17 is a
distinction without a difference. The court considers each of Defendant’s arguments in turn.
I. 	Arguable NLRA Violation
Defendant first argues that the court acknowledges there was an arguable NLRA
violation and thus should have applied Garmon preemption. But Defendant’s argument
misconstrues the opinion’s language.
The court explained the basis for Garmon preemption in its previous opinion:
Congress enacted the NLRA to “encourag[e] the practice and procedure of
collective bargaining and[] protect[] the exercise by workers of full freedom of
association, self-organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions of their
employment 	or 	other 	mutual 	aid 	or 	protection.” “The Supreme Court 	has
considered it essential to the administration of the NLRA that determinations
regarding the scope and effect of §§ 7 and 8 ‘be left in the first instance to the
National Labor Relations Board.’” Thus, under Garmon preemption, “both state
and federal courts generally lack original jurisdiction to determine disputes
involving 	conduct 	actually 	or 	arguably 	prohibited 	or 	protected 	by 	the
NLRA.” Section 7 of the NLRA grants employees the right to organize and
collectively bargain. Section 8 prohibits unfair labor practices by the employer or
the labor organization, such as refusing to bargain collectively or unilaterally
terminating or modifying the CBA.18
17 Order 11.
18 Id. 4–5 (first quoting 29 U.S.C. § 151; then quoting United Ass’n of Journeymen & Apprentices of the Plumbing
& Pipe Fitting Indus. v. Bechtel Power Corp., 834 F.2d 884, 886 (10th Cir. 1988) (quoting Garmon, 359 U.S. at
244–45); then quoting Bechtel Power Corp., 834 F.2d at 886 (citing Garmon, 359 U.S. at 244–45); then citing 29
U.S.C. § 157; and then citing 29 U.S.C. § 158).
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After explaining Garmon preemption, the opinion analyzes whether Plaintiff’s FLSA
claims “arguably fall within the prohibitions of Section 7 or 8 of the NLRA.”19 The court
concluded that they did not because “FLSA rights are individual and not related to the collective
bargaining rights under Section 7 or 8 of the NLRA.”20 The opinion explicitly states “[a]s a
general matter, Plaintiff’s claims do not arguably fall within the prohibitions of Section 7 or 8 of
the NLRA.”21
After that analysis, the opinion addresses Defendant’s argument “that a ruling in
Plaintiff’s favor would require it to pay opt-in employees a higher overtime rate than others
covered by the same CBA—creating unequal pay that, Defendant argues, would constitute an
unfair labor practice under the NLRA and trigger Garmon preemption.”22 As one point, among
others, in rejecting that argument, the opinion states:
And in any case, the arguable NLRA violation is, at this point, wholly hypothetical.
This court has not yet ruled on the validity of Plaintiff’s FLSA claim, nor
determined the proper remedy. Nor would any NLRA claim be a part of this case
but would instead be brought in a separate action with different plaintiffs. If that
second hypothetical case materializes, Kennecott would be free to argue that it
should go before the NLRB.23
Defendant now argues that the first sentence of that paragraph acknowledges the
existence of an arguable NLRA violation. It does not. The language in the foregoing paragraph is
an explanation of why Defendant’s argument—not the court’s position—that there is an arguable
NLRA violation is speculative. Unequal pay is not—and will not become—an issue in this case.
19 Id. 5.
20 Id. (Further concluding that “ultimately, the FLSA assigns the judiciary as the place to address the FLSA’s
overtime requirements, not the NLRB.”).
21 Id.
22 Id. 7.
23 Id. 8.
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This case is about an alleged FLSA violation, which the opinion earlier concluded is “not related
to the collective bargaining rights under Section 7 or 8 of the NLRA.” In other words, the court
has found both that “Plaintiff’s claims do not arguably fall within the prohibitions of Section 7 or
8 of the NLRA” and that Defendant’s urging that the court find an arguable violation is based on
“wholly hypothetical” future events. Defendant’s argument that the court has found an arguable
violation is simply wrong.
II. 	Chavez
Defendant next argues that the court’s reliance on Chavez is mistaken. The opinion
stated:
Neither has the Tenth Circuit even discussed the possibility of Garmon preemption
in FLSA cases similar to this one. In Chavez v. Albuquerque, the Tenth Circuit
considered an FLSA collective action brought by city employees. All of the city
employees were members of a union that had entered into a collective bargaining
agreement. There, “the City calculate[d] an employee’s wage entitlements under
the FLSA and under the applicable CBA, and then pa[id] the employee the greater
of the two.” But instead of finding that created a Garmon preemption issue, the
Circuit held that “[t]here is nothing inherently wrong with the City’s approach of
calculating wage entitlements under the FLSA and under the applicable CBA, and
then paying the greater of the two.24
The court acknowledges its error. As Defendant correctly points out, the NLRA does not
apply to public employers.25 Thus, since Chavez involved city employees, neither the NLRA nor
Garmon preemption could have applied—and Chavez would have had no occasion to address
Garmon preemption.
24 Id. 9 (citing Chavez v. Albuquerque, 630 F.3d 1300, 1304–05 (10th Cir. 2011)). The court also cites Chavez
elsewhere in the opinion for the general proposition that “[t]he regular rate may include more than just an
employee’s contractually-designated hourly wage if the employee is, in fact, paid more than that hourly wage.”
Order 7 (citing Chavez, 630 F.3d at 1305). That general proposition pertains to FLSA law and is unaffected by
Defendant’s argument that Garmon preemption could not have applied.
25 29 U.S.C. § 152.
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That said, the analysis of Chavez was a minor point in rejecting Defendant’s arguments.
It occupied a single paragraph at the end of the Garmon analysis.26 The Chavez discussion did
not affect any of the authority and reasoning that preceded it. As a result, it does not change the
outcome of the motion.
III. 	Epic Systems
Defendant next argues that the opinion’s analysis of Epic Systems is incorrect because
“Epic Systems did not involve preemption under either Garmon or the LMRA.”27 True enough.
But the opinion never claims that Epic Systems is about Garmon or LMRA preemption—instead
the opinion analogizes the Supreme Court’s reasoning in Epic Systems to the issue before it. The
opinion states:
The Supreme Court also rejected a similar attempt to create conflicts between the
NLRA and the FLSA. In Epic Systems Corp. v. Lewis, employees tried to create
conflict between the NLRA, the FLSA, and the Arbitration Act in order to avoid
individual arbitration contractual clauses that control FLSA claims. There, the
employees tried “suggesting that one statute (the NLRA) steps in to dictate the
procedures for claims under a different statute (the FLSA), and thereby overrides
the commands of yet a third statute (the Arbitration Act).” Justice Gorsuch
explained that this theory was “a sort of interpretive triple bank shot, and just stating
the theory is enough to raise a judicial eyebrow.” Similarly here, Defendant
suggests that one statute (the NLRA) steps in to dictate the procedure for claims
under a different statute (the FLSA) when the first statute might be implicated by a
not-yet-granted remedy under the second statute. It presents an interpretive double
bank shot aimed at where the hoop might be in the future.28
It is appropriate to draw analogies from reasoning in cases that address related questions. That is
what the opinion did here. Epic Systems illuminates because it is another case in which some of
26 See Order 4–9.
27 MFR 4.
28 Order 8–9 (quoting Epic Sys. Corp. v. Lewis, 584 U.S. 497, 515–516 (2018)).
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the parties urged the court to read conflicts into statutes. Defendant may disagree with the
analysis, but it is not clear error or manifest injustice.
IV. 	Barrentine
Defendant next challenges the opinion’s reliance on Barrentine on the grounds that it has
been disfavored by later cases. In Barrentine, the Court considered “whether an employee may
bring an action in federal district court, alleging a violation of the minimum wage provisions of
the Fair Labor Standards Act, . . . after having unsuccessfully submitted a wage claim based on
the same underlying facts to a joint grievance committee pursuant to the provisions of his
union’s collective-bargaining agreement.”29 Where the CBA did not expressly reference
arbitrating statutory claims, the Court held that previous arbitration over a wage claim did not
preclude a FLSA claim in federal court in part because “FLSA rights . . . are independent of the
collective-bargaining process.”30 The Court also expressed reservations about arbitration’s
fitness for enforcing statutory rights.31
After numerous courts interpreted Barrentine and similar decisions as prohibiting any
arbitration of statutory rights, the Supreme Court considered the issue again in 14 Penn Plaza
LLC v. Pyett.32 There, the Supreme Court explained that the Gardner-Denver line of cases,
which includes Barrentine, only reached the issue of “whether arbitration of contract-based
claims precluded subsequent judicial resolution of statutory claims.”33 And “[s]ince the
employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were
29 Barrentine v. Arkansas–Best Freight System, Inc., 450 U.S. 728, 729–30 (1981).
30 Id. at 731, n.5, 745.
31 Id. at 742–43.
32 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 255 (2009).
33 Id. at 264 (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991)) (emphasis added).
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not authorized to resolve such claims, the arbitration in those cases understandably was held not
to preclude subsequent statutory actions.”34 The Court went on to hold that if a CBA’s arbitration
provision expressly covers statutory claims, it is enforceable.35 The Court also recognized that
“apart from their narrow holdings, [Barrentine] included broad dicta that w[as] highly critical of
the use of arbitration for the vindication of statutory antidiscrimination rights.”36 The Court went
on to explain “[t]hat skepticism, however, rested on a misconceived view of arbitration that this
Court has since abandoned.”37 But, crucially, the Court never criticized Barrentine’s
interpretation of the FLSA, nor overturned the case.
Here, the court’s opinion only relied on Barrentine for its interpretation of the FLSA.38
The opinion did not rely on or quote any of Barrentine’s “broad dicta that w[as] highly critical of
the use of arbitration for the vindication of statutory antidiscrimination rights.”39 Nothing in 14
Penn Plaza calls into doubt anything this court’s opinion relied on from Barrentine. Courts
continue to rely on Barrentine’s interpretation of the FLSA after 14 Penn Plaza was issued.40
There is no manifest injustice or clear error in doing so.
V. 	Actual Pay
Lastly, Defendant contends that the opinion’s LMRA analysis is inconsistent, arguing
that the conclusion—that Plaintiff’s claim turns on what he was actually paid rather than what he
34 Id. (quoting Gilmer, 500 U.S. at 35).
35 Id.
36 Id. at 265.
37 Id.
38 Order 5, 10.
39 See Order; 14 Penn Plaza LLC, 556 U.S. at 265.
40 See, e.g., Moran v. John J. Picone, Inc., No. 24-cv-4095, 2025 WL 2783596, at *3 (E.D.N.Y. Sept. 30, 2025);
Isaacs v. Central Parking Sys. of N.Y., Inc., No. 10-cv-5636, 2012 WL 957494, at *3 (E.D.N.Y., Feb. 27, 2012);
Allen v. BHP Navajo Coal Co., No. cv 09-692, 2011 WL 13266816, at *3 (D.N.M. Mar. 30, 2011); Bell v. Se.
Pennsylvania Transp. Auth., 733 F.3d 490, 493–95 (3d Cir. 2013).
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was owed under the CBA—draws a distinction without a difference. Defendant argues that
“[e]very FLSA case must start with a determination of the regular rate of pay” and “Plaintiff’s
. . . regular rate of pay is defined only by the CBA.”41 But Defendant misunderstands both the
law and the court’s opinion.
First, plaintiff’s regular rate of pay is not defined by the CBA. The basis for a plaintiff’s
pay could come from a CBA, an individual employment contract, or a handshake agreement—it
doesn’t matter. The Tenth Circuit has made it abundantly clear that “[c]ontractual stipulations as
to the regular rate are not controlling, because the regular rate is an ‘actual fact,’ rather than ‘an
arbitrary label chosen by the parties.’”42 Here, as currently pled, it does not matter what the CBA
says. It does matter what the FLSA says Plaintiff’s regular rate is, based on how much Plaintiff
actually worked and was actually paid for that work. Regular rate under the FLSA is an “actual
fact” that does not, on its own, require interpreting the CBA.43
41 MFR 6.
42 Chavez, 630 F.3d at 1305 (quoting Walling, 325 U.S. at 424); see also Bell, 733 F.3d at 495.
43 Id.; Moran, 2025 WL 2783596, at *5 (collecting cases); see also Ramirez v. Riverbay Corp., 35 F. Supp. 3d 513,
523–24 (S.D.N.Y. 2014) (holding no preemption where “plaintiffs do not allege that the CBAs were breached or that
the plaintiffs are owed any outstanding nighttime differential pay under the terms of the CBAs” because “[t]here is
therefore no dispute about the parties’ rights under the CBAs”); Johnson v. D.M. Rothman Co., 861 F. Supp. 2d 326,
333–35 (S.D.N.Y. 2012) (holding no preclusion where there was no dispute that plaintiffs were entitled to night
differential, defendant conceded he failed to add night differential to overtime calculation, and plain language of
CBA on the night differential was clear); Isaacs, 2012 WL 957494, at *5 (holding no preclusion of FLSA and
NYLL claims where the court would not need to determine plaintiff’s non-overtime rate under relevant CBAs,
plaintiff made no allegation his non-overtime rate was incorrect, and plaintiff explicitly did not allege a breach of the
CBA or challenge any of its provision); Allen, 2011 WL 13266816, at *3 (holding no preemption where Plaintiff’s
“Complaint does not allege a violation of the CBA, but rather alleges violations of statutory right granted by the
FLSA and state law.”); Moeck v. Gray Supply Corp., No. 03-1950, 2006 WL 42368, at *3 (D.N.J. Jan. 6, 2006)
(“Plaintiffs’ claims are not based on an interpretation of the collective bargaining agreement with respect to the
appropriate wage rate, but are based on their contention that they are entitled to overtime. Plaintiffs are not barred by
the LMRA from pursuing these claims under the FLSA merely because its contractual and statutory rights arise from
the same factual occurrence.”). But see Hoops v. Keyspan Energy, 822 F. Supp. 2d 301 (E.D.N.Y. 2011) (holding an
FLSA claim was preempted by Section 301 where the court first had to determine what the Plaintiff was owed under
a CBA).
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Second, Plaintiff does not claim the CBA has been breached or violated. If a Plaintiff
makes allegations that require interpreting the CBA—namely, some failure to comply with the
terms of the agreement—the LMRA’s Section 301 bar would likely apply.44 But “[w]here a
plaintiff’s FLSA . . . overtime claims do not require interpreting a collective bargaining
agreement, courts have routinely found that those claims are not preempted or precluded by the
LMRA.”45 Here, Bascom makes no allegations that Defendants are in violation of the CBA, nor
alleges any dispute regarding it. Instead, Bascom alleges that Defendants do not include actually
paid—not merely owed—bonuses or shift differentials in FLSA-required overtime calculations.
So on its face, the Complaint does not call upon the court to interpret the CBA at all. And
without interpretation of the CBA, LMRA preemption does not apply.
Accordingly, the opinion’s LMRA decision is not a clear error nor a manifest injustice.
ORDER
Defendant’s Motion for Reconsideration46 is DENIED.
Signed February 4, 2026.
BY THE COURT
________________________________________
David Barlow
United States District Judge
44 See, e.g., Hoops v. Keyspan Energy, 822 F. Supp. 2d 301 (E.D.N.Y. 2011) (holding an FLSA claim was
preempted by Section 301 where the Court first had to determine what the Plaintiff was owed under a CBA).
45 Moran, 2025 WL 2783596, at *5; Order n.58.
46 ECF No. 31.
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