The last engine shipped out MerCruiser's Stillwater plant was decorated by workers, expressing Cowboy pride one day before the Bedlam football game.

Brunswick Corporation, parent of Mercury Marine, reached a settlement agreement with former MerCruiser plant employees in Stillwater on a class action lawsuit that began nine years ago in Payne County over unpaid bonuses. The settlement reached was for Brunswick to pay $2.18 million covering 409 individuals over bonuses due from 2008-11.

In 2009, the Mercury Marine employees filed suit alleging that the company had in 2008 promised, but did not pay them bonus income for meeting certain objectives and criteria. The employees’ attorney argued that this violated Oklahoma’s Protection and Labor Act, saying bonuses completed based on an agreement between employee and employee should be considered as regular wages. Brunswick argued that the bonuses should not be covered by the act.

“It was pretty clear that this all occurred right at, or around the financial crisis of 2008 – the 2008 bonuses are wages that were paid on a fairly regular basis with MerCruiser, they always had an annual bonus that occurred for the hourly employees and you had to participate, there was a summary of the plan, and the employees had to hit certain objectives and goals in order to be eligible for the bonuses. Those goals and objectives, were really facility wide – not have accidents, meet certain production goals and those sorts of things – and those metrics would be looked at over the year to determine the amount of the bonus at the end of the year,” said class counsel attorney Guy Fortney.

They went so far as to go through all of 2008, and then the big downturn occurred in 2008, and clearly decisions were made, “We’re not going to pay this bonus. The company decided it was more important to preserve cash during the economic decline in 2008 than to pay the employees what had been promised. The 2008 bonus program was announced to the employees that it would not be paid in Jan. 13, 2009. So that really became the issue, can you default on a promise that you made to the employees for wages after they fulfilled their side of the bargain?”

The lower trial court agreed with Brunswick. Attorney John Mac Hayes, who was the original lawyer representing the employees from 2008, kept pushing. He got the case in front of the Court of Civil Appeals.

“The other part of the story is that Brunswick and MerCruiser … are clearly playing off the facility in Stillwater against the facility up in Wisconsin about which they’re going to remain open, trying to get concessions from the employees,” Fortney said. “Ultimately, the facility Stillwater loses and the Fon du Lac facility wins. That’s only after a vote of the union up in Fon du Lac rejecting MerCruiser’s proposal. When MerCruiser says, ‘No, seriously we’re leaving,’ there’s almost an immediate re-vote and the proposal is accepted. That kind of seals the Stillwater factory’s fate. That’s what gives rise to the other bonuses in 2009-10-11, those bonuses are for staying with MerCruiser while the plant is closing down.

“What essentially they did was they came to employees and had them sign up for the MerCruiser hourly project completion incentive and in that incentive program, to receive the 2009, 10 and 11 bonuses, you had to relinquish your rights to the 2008 bonus. Part of the plant, I don’t think anybody’s decisions can be faulted here, some people said, ‘If I sign this and give up my 2008 bonus at least I’m going to get bonuses for 9, 10 and 11,’ and they signed it so they could get that money.”

Some employees signed, others didn’t. It turned out to not matter what the employees chose as far as pay was concerned in the long run, but it gave Hayes more ammunition.

“Some people that took a more militant stance refused to sign it and didn’t get a 2008, 9, 10 or 11 bonus. The interesting thing is that the Court of Civil Appeals said, one, not only the people who didn’t sign that agreement ... should be compensated for 2008 through 2011 if they were working there … but the people who did sign that document, it is void under Oklahoma law because you can’t make people give up something that they already have a right to as a wage. The law is fairly clear that Oklahoma law doesn’t allow an employee to sign away wages that have already been earned for other promises that a company might make,” Fortney said. “So, when the Court of Civil Appeals ruling comes down, not only does it revive the lawsuit but it also adds another 225 people to the class. That’s probably what made MerCruiser and Brunswick stand up and take notice.”

Fortney, who joined the case with Clark Brewster out of the Brewster & DeAnglis firm, said his team came along to assist in the technical side of litigation.

“(Hayes) really fought the battle for a long time, we came in and helped him kind of land it. Part of that is just the technical figuring out how much each person is due,” Fortney said. “John Mac Hayes, did a very extraordinary thing, he’s an OSU graduate, he had an office in Payne County, some of these people who worked at this plant were friends of his and they brought it to him. He took this big company on, even when the judge told him no, he successfully appealed it. There are a lot of attorneys, who probably would have called it quits at a certain time, but he kept pursuing this case on behalf of not only his clients but people I know he considered friends, too.”

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