Amicus Curiae Brief — IBP, Inc. v. Alvarez

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MOTION FILED (2)

APR 2 - 2004

No. 03-1238

a <n

IN THE

SUPREME COURT OF THE UNITED STATES

IBP, INC.,

Petitioner,

Vv.

GABRIEL ALVAREZ, individually and as a class

representative; RANULFO GUTIERREZ. individually

and as a class representative; PEDRO HERNANDEZ,

individually and as a class representative;

MARIA MARTINEZ; RAMON MORENO;

ISMAEL RODRIQUEZ,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE AND BRIEF OF

NATIONAL CHICKEN COUNCIL, AMERICAN MEAT

INSTITUTE, AND THE NATIONAL ASSOCIATION

OF MANUFACTURERS AS AMICI CURIAE

IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

Davip R. WYLIE

(Counsel of Record)

D. CHRISTOPHER LAUDERDALE

HAYNSWORTH BALDWIN

JOHNSON & GREAVES LLC

918 South Pleasantburg Drive

Greenville, South Carolina

29607

(864) 271-7410

April 2, 2004

Attorneys for Amici Cunae.

Washington,0.C. * THIEL PRESS + (202) 328.3286

(t)

MOTION FOR LEAVE TO FILE BRIEF

OF AMICI CURIAE

Pursuant to Rule 37.2(b) of the rules of the Supreme

Court, the National Chicken Council (““NCC’’), the Amer-

ican Meat Institute (“‘AMI’’), and the National Associa-

tion of Manufacturers (‘the NAM’’) respectfully request

leave to file the attached brief of amici curiae in support

of Petitioner’s request for a writ of certiorari. A letter of

consent from Petitioner for filing of this brief has been

filed with the Clerk of Court. Respondents have refused

to consent to the filing of this brief.

In this case, the Ninth Circuit has determined that

meat processing employees are entitled to compensa-

tion for time spent walking to their work stations. This

decision is in direct conflict with that of other courts of

appeals which have considered the compensability of

such activities.

NCC is the primary trade organization representing the

poultry industry in the United States. The member com-

panies of NCC produce and process more than 90 percent

of the broilers and fryer chickens marketed in the United

States and employ in excess of 300,000 workers through-

out the United States.

AMI is the nation’s oldest and larges: trade association

representing packers and processors of beef, pork, lamb,

veal, turkey, and processed meat products. AMI member

companies produce more than 95 percent of meat pro-

ducts available in the United States. There are more than

200,000 workers employed in the meat packing and

processing industries in the United States. AMI has rep-

resented the interests of the meat packing and processing

community since the Federal Meat Inspection Act was

passed in 1906.

(tt)

The NAM is the nation’s largest industrial trade asso-

ciation. The NAM represents 14,000 members (including

10,000 small and mid-sized companies) and 350 member

associations serving manufacturers and employees in

every industrial sector in all 50 states.

The issue raised by this case regarding the compensa-

bility of walking time is extremely important to mem-

bers of NCC, AMI, and the NAM and directly affects

their operations. Many members of NCC, AMI, and the

NAM are currently subject to inconsistent interpreta-

tions of the Fair Labor Standards Act, 29 U.S.C. §201-

219 (Supp. 2000) (“FLSA”). The current split of auth-

ority among the circuits thus places significant burdens

on the operations of amici’s members. In fact, many

members of NCC, AMI, and the NAM will be subject to

conflicting interpretations of the FLSA within the scope

of their own operations.

The amici wish to bring to the Court’s attention the

impact on their members and on other public and private

employers of the split of authority on the compensability

of the activities at issue in this case. NCC, AMI, and the

NAM believe that they will provide the Court with

particular insight into the issues presented by this case.

Respectfully submitted,

David R. Wylie

(tt)

QUESTION PRESENTED

This brief for amici curiae will address the following

question presented in the petition for writ of certiorari:

“Whether walking that occurs between compensa-

ble clothes-changing time and the time employees

arrive at or depart from their actual work stations

constitutes noncompensable ‘walking . . . to and

from the actual place of the performance of the

principal activity’ within the meaning of Section

4(a) [of the Portal-to-Portal Act] .”

(wv)

TABLE OF CONTENTS

Question Presented .... 6... cece eee eee eee eees ill

Table Of Authorities... .......50 cee eee eee ee eees iv

Reasons For Granting The Writ..........-.5-500005 l

I. The Ninth Circuit’s Conclusion That Walking

Time Is Compensable Under The FLSA Is In

Conflict With Long-Standing Interpreta-

tions Of The FLSA Including Recent Deci-

sions Of The First And Tenth Circuits. .......... l

II. The Compensability Of Walking Time Is A

Recurring And Important Question. ........... 15

Cee... g hh cehesrcececbisesesoeeseeoerees 19

TABLE OF AUTHORITIES

Cases:

Aguilar v. United States, 36 Fed. Cl. 560 (1996). ..... 13

Aiken v. City of Memphis, 190 F.3d 753 (6th ,

Cir, 1999)... ccc ccccccccvcccccccseccccccess 9

Anderson v. Mt. Clemens Pottery Co., 328 U.S.

G80 (1946) 0... cece ee ee eee eee eee eeees 1,2

Anderson v. Pilgrim's Pride Corp., 147 F. Supp. 2d

556 (E.D. Tex. 2001), aff'd, 44 Fed. Appx.

652 (5th Cir. 2002)... 6... eee eee eee eens 5,7, 15

Bagrowski v. Md. Port Auth., 845 F. Supp. 1116

(D. Md. 1994)... 6.6 cece eee e rere eee eenes 15

Barrentine v. Arkansas-Best Freight Sys., Inc.,

750 F.2d 47 (8th Cir. 1984)... 26. eee ee eee ees 16

(v)

Cases, continued: Page

Bateman v. Ford Motor Co., 76 F. Supp. 178

(E.D, Mich, 1948), aff'd sub nom. Fisch v.

Gen. Motors Corp., 169 F.2d 266 (6th

Cir. 1948), cert. denied, 335 U.S. 902 (1949)...... 3

Bejil v. Ethicon Inc., 269 F.3d 477 (5th Cir.

Peay 6 0UU06hN40bbbnesedddebebicuneceséss 15

Blum v. Great Lakes Carbon Corp., 418 F.2d 283

PU PU ab evecnseuusuebeudbadececuades 16

Bobo v. United States, 136 F.3d 1465 (Fed. Cir.

PUT SOneOuGseensdeanscdbhbeseceebece cca 9

Carter v. Panama Canal Co., 463 F.2d 1289 (D.C.

Eh DEES 60 nendeenbhens dcecueudeeceens 7, 16

Cherup v. Pittsburgh Plate Glass Co., 350 F. Supp.

386 (N.D. W. Va. 1972), aff'd by 480 F.2d

921 (4th Cir. 1973)

De Ascencio v. Tyson Foods, Inc., 342 F.3d 301

Seve M6400 obewendacedécenbadsececncas 15

DOPED GbGcchdeneebiwewkedeceucéctessececes 16

Gonzalez v. Farmington Foods, Inc., 296 F. Supp.

en Oe Ss ku padueueccespaceces 15

Jewell Ridge Coal Corp. v. Local No. 6167, United

Mine Workers, 325 U.S. 161 (1945) ............. 2

Lindow v. United States, 738 F.2d 1047 (9th Cir.

SE SSG Adeu dddseNesveseensedscbcédesdcess 16

Nardone v. Gen. Motors, Inc., 207 F. Supp. 336

Pen SUE cnOnvedddectecedsucdcdbacceess 16

Northwestern-Hanna Fuel Co. v. McComb, 166

F.2d O32 (Sth Civ. 1948)... ccc ccc cccess 3

(vt)

Cases, continued: Page

Pressley v. Sanderson Farm:, Inc., 143 Lab. Cas.

(CCH) 4 34,262 (S.D. Tex. Apr. 23, 2001),

aff'd without published opinion 33 Fed. Appx.

705 (5th Cir. Mar. 7, 2002). ..........00e eens 15

Ralph v. Tidewater Constr. Co., 361 F.2d 806

SGPC DUD coceccccccsccccsecececeses 7, 16

Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir.

PRPPUTTITITITITT TTT TTT TT ee 2, 5, 6, 9, 14

Reich v. IBP, Inc., 820 F. Supp. 1315 (D. Kan. 1993),

modified and vacated in part by 1 Wage & Hour

Cas. 2d (BNA) 863 (D. Kan. June 2, 1993), aff'd

and remanded by 38 F.3d 1123 (10th Cir.

PPPPTTITTLIT TTT TTT 2,13

Reich v. Manfort, Inc., 144 F.3d 1329 (10th Cir.

SOU ccc cddeccecececesceencesecoescscese 15

Reich v. N.Y. City Transit Auth., 45 F.3d 646

GG, BER oc cove cccescvcccvess 8, 10, 13, 15

Steiner v. Mitchell, 350 U.S. 247

TESS coceeececeseeesesseseces 2, 12, 13, 14, 17

Stemer v. Mitchell, 215 F.2d 171 (6th Cir.

PEED ctoesesenestocecessescenyeseseeeatecs 13

Tenn. Coal, Iron & R.R. Co. v. Muscoda Local

Ne. 123, 321 U.S. SOO (1944)... ccccccccscccess 2

Tum v. Barber Foods, Inc., 331 F.3d 1 (1st Cir.

DED 660 bebo ceded ns éeteccceteseeoececeses 4,5

Tum v. Barber Foods, Inc., Nos. 02-1679;

02-1739 (1st Cir. Mar. 10, 2004)............ passim

United States v. Cook, 795 F.2d 987 (Fed. Cir.

SUED obec ccccccccccoescecsevesseececcores 3

(vit)

Statutes: =

29 U.S.C. §201-219 (Supp. 2000) ................ ut

29 U.S.C, §254 (Supp. 2000)................ passim

Regulations:

29 C.F.R. G70G.7 (ZOGB) .. ccc cccccccecs 10, 11, 12

Other Authorities:

Daily Labor Report (BNA) p. A-8 (Jan. 9, 2003) ..... 16

Daily Labor Report (BNA) p. A-5 (Apr. 4,.2003)..... 16

BRIEF OF AMICI CURIAE

REASONS FOR GRANTING THE WRIT

THE NINTH CIRCUIT'S CONCLUSION THAT WALK-

ING TIME IS COMPENSABLE UNDER THE FLSA IS

IN CONFLICT WITH LONG-STANDING INTERPRE-

TATIONS OF THE FLSA INCLUDING RECENT DECI-

SIONS OF THE FIRST AND TENTH CIRCUITS.

The Ninth Circuit concluded that the employer in this

cas¢ was required to compensate employees for time

spent walking to their work stations after their first

compensable donning activity and time spent walking

from their work stations prior to their last compensable

doffing activity. Pet. App. 18a-19a.! This conclusion

is in conflict with opinions of the First and Tenth Cir-

cuits, is contrary to the plain language of Section 4 of the

Portal-to-Portal Act amendment to the FLSA,” and also

ignores the Secretary of Labor’s (‘Secretary’’) inter-

pretive regulations. In fact, the Portal-to-Portal Act was

enacted in direct response to a Supreme Court opinion

that found such time to be compensable.

In Anderson v. Mt. Clemens Pottery Co., 328 U.S.

680 (1946), the definition of “work” under the FLSA

was extended to include time spent by employees walk-

ing to their workstations and time spent in ancillary

activities at their workstations before and after their

shift. The Mt. Clemens Court concluded that walking

to a workstation required an employee to be on the

employer’s premises and that without the employee

| Pursuant to Rule 37.6, amici NCC, AMI, and the NAM state

that no counsel for a party has written this brief in whole or in part

and that no person or entity, other than Amici, has made a mone-

tary contribution to the preparation of submission of this brief.

299 U.S.C. § 254 (Supp. 2000).

walking to the workstation, the “productive aims of the

employer” could not have been met. /d. at 69 1. The

Court concluded that walking constituted “physical or

mental exertion (whether burdensome or not) con-

trolled or required by the employer and pursued neces-

sarily and primarily for the benefit of the employer and

his business.” Jd. at 691-92 (footnote omitted) (quoting

Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123,

321 U.S. 590, 598 (1944), and Jewell Ridge Coal Corp.

v. Local No. 6167, United Mine Workers, 325 U.S. 161,

164-66 (1945)).

Congressional response to the Mt. Clemens decision

was immediate and unequivocal. In its next session in

1947, Congress passed the Portal-to-Portal Act with the

express purpose of foreclosing “‘portal-to-portal’’ pay

claims seeking compensation for the time from the

instant an employee set foot on the employer’s premises

to the time of departure. Subsequent decisions have

recognized that the Portal-to-Portal Act was a direct

congressional response designed to nullify the Mt. Clem-

ens decision. See, e.g., Steiner v. Mitchell, 350 U.S. 247,

253 (1956) (stating that the Portal-to-Portal Act was

designed to meet an emergency resulting from the em-

ployee claims arising from the Mt. Clemens decision,

which, if allowed to continue, would have created

“wholly unexpected liabilities” to employers that were

“immense in amount”); Tum v. Barber F oods, Inc., Nos.

02-1679; 02-1739 (1st Cir. Mar. 10, 2004) (“Tum JI”)

(observing that the purpose of the Portal-to-Portal Act

was “to exclude preliminary and postliminary waiting

and walking time from compensability); Retch v. IBP,

Inc., 820 F. Supp. 1315, 1323 (D. Kan. 1993), modified

and vacated in part by 1 Wage & Hour Cas. 2d (BNA)

863 (D. Kan. June 2, 1993), aff'd and remanded by 38

F.3d 1123 (10th Cir. 1994) (stating that “‘{t] he legisla-

tive history of the Portal Act indicates that preliminary

activities such as those held to be compensable in Mt.

Clemens are no longer compensable under FLSA”);

United States v. Cook, 795 F.2d 987 (Fed. Ci:. 1986)

(observing that intent of Portal-to-Portal Act was to pre-

vent thousands of lawsuits to recover wages for time

workers were in transit to and from workstations); North-

western-Hanna Fuel Co. v. McComb, 166 F.2d 932 (8th

Cir. 1948) (stating that it was common knowledge that

congressional intent was to cut off vast amount of

unforeseen damages some Supreme Court decisions

created to the detriment of employers); Bateman v. Ford

Motor Co., 76 F. Supp. 178 (E.D. Mich. 1948), aff'd

sub nom. Fisch v. Gen. Motors Corp., 169 F.2d 266

(6th Cir. 1948), cert. denied, 335 U.S. 902 (1949) (stat-

ing that the “main purpose” of the Portal-to-Portal Act

was to prevent employees’ claims for time spent “walk-

ing, washing, punching the clock, changing clothes,

etc.”’), In concluding that walking time is compensable in

the present case, the Ninth Circuit has returned to pre-

1947 reasoning and created an intolerable conflict of

authority.

The Portal-to-Portal Act makes expressly clear that

time spent walking, as well as time spent performing

other preliminary activities, is “not compensable.” The

Act provides:

(a) Activities not compensable

Except as provided in subsection (b) of this section,

no employer shall be subject to any liability or

punishment under the Fair Labor Standards Act of

1938, as amended. . . on account of the failure of

such employer to pay an employee minimum wages,

or to pay an employee overtime compensation, for

or on account of any of the following activities of

such employee engaged in on or after May 14,

1947—

(1) walking, riding, or traveling to and from the

actual place of performance of the principal

activity or activities which such employee is em-

ployed to perform, and

(2) activities which are preliminary to or post-

liminary to said principal activity or activities,

which occur either prior to the time on any partic-

ular workday at which such employee commences,

or subsequent to the time on any particular work-

day at which he ceases, such principal activity or

activities.

29 U.S.C. §254(a) (Supp. 2000).

This section of the Portal-to-Portal Act makes clear

what the opinion of the Ninth Circuit ignores — that the

Portal-to-Portal Act excludes not only “preliminary”

and “postliminary” activities (see subsection (a)(2)),

but also expressly excludes the “walking” time (see sub-

section (a)(1)) at issue in this litigation.

The First Circuit’s recent rehearing decision in Tum v.

Barber Foods (Tum II) makes clear that the Ninth Cir-

cuit’s opinion in the present case creates a direct conflict

with longstanding interpretations of the Portal-to-Portal

Act. In a prior decision, a panel of the First Circuit

found that walking time that followed compensable

donning activities or preceded the last compensable dof-

fing activity was not compensable under the Portal-to-

Portal Act. Tum v. Barber Foods, Inc., 331 F.3d 1, 6

(1st Cir. 2003) (“Tum 1”). The First Circuit found

that “walking time [was] not automatically excluded

from the purview of the Portal-to-Portal Act by virtue

of following compensable doffing.” Jd. at 6. In this

case, the Ninth Circuit acknowledged the conflict bet-

ween itS opinion and that of the First Circuit in Tum J.

Pet. App. at 19a.

Following Tum I, the employees filed a petition for

rehearing. Tum II, slip op. at 2. In response to specific

questions posed by the First Circuit, the Secretary of

Labor, as an amicus curiae, submitted a brief setting forth

the Secretary’s position on the compensability of walking

time that follows compensabic donning or precedes the

last compensable doffing activity. The First Circuit

granted rehearing but rejected the Secretary’s position

that the workday began with an employee’s first, and

ended with an employee’s last, principal activity. Jd. at

14, The Secretary argued that any compensable donning

activity should be considered the beginning of the work-

day and that the employee’s last compensable doffing

activity should be considered the conclusion of the work-

day. Jd. at 12-13. Expressly recognizing the conflict

with the Ninth Circuit’s opinion in this case, the First

Circuit rejected this expansion of compensable activities,

finding that this reasoning would “undermine” the very

purpose of the Portal-to-Portal Act. Jd. at 14.

With regard to the interpretation of the FLSA urged

by the Secretary, the First Circuit observed that “[t] he

[S]ecretary urges an expansion of the ordinary ‘work-

day’ rule in favor of a broader, automatic rule that any

activity that satisfies the ‘integral and indispensable’ test

itself started the workday, regardless of context.” Jd. at

12. Citing Anderson v. Pilgrim’s Pride Corp., 147 F.

Supp. 2d 556 (E.D. Tex. 2001), aff'd, 44 Fed. Appx.

652 (7th Cir. 2002), and Reich v. IBP, Inc., 38 F.3d

5 Fifth Circuit Local Rule 47.5.4 permits citation of unpub-

lished decisions as persuasive authority.

1123 (10th Cir. 1994), the court noted that the Secre-

tary’s position has been rejected by two circuits and also

expressly noted the conflict with the Ninth Circuit’s

opinion in the present case. Jd. The First Circuit con-

cluded that “the Secretary’s present litigation position

in our view, pushes so far that it threatens to undermine

the Portal-to-Portal Act.” Tum II, slip op. at 14.

The Ninth Circuit’s conclusion in this case that don-

ning and doffing constitute first and last principal activi-

ties and that the FLSA requires compensation for inter-

vening time spent walking was expressly rejected by an

earlier decision of the Tenth Circuit in Reich v. IBP. Inc.

In Reich, the court held that

[d]espite having found that putting on, cleaning,

and taking off the unique personal protective gear

was a compensable work activity, the district court

nevertheless declined to hold that these actions

were the first and last principal activities of the

workday which would commence and toll the run-

ning of the timeclock, including “wait and walk

time.”” The district court found that there existed ©

considerable flexibility and personal discretion with

regard to the time and speed that these activities

took place. ... Given these circumstances, the dis-

trict court concluded that the workers should be

paid on the basis of reasonable time to conduct

these activities, not to include “wait and walk

time.” ... We affirm... the denial of “wait and

walk time”’ related to the above issues.

38 F.3d at 1127.* Similarly, as noted in Tum II, the

Fifth Circuit affirmed without published opinion a deci-

tin Reich v. IBP, the donning and doffing activities of

knife-wielding meat processing employees were found to be com-

pensable, while similar activities of non-knife-wielding employees

[footnote continued]

7 >

sion dismissing claims by poultry workers for compensa-

tion for time spent walking to and from their work sta-

tions. Anderson v. Pilgrim’s Pride Corp., 147 F. Supp.

2d at 563 n.12.

In other contexts, courts have concluded that even

significant time spent walking or otherwise traveling to

and from a work site is not compensable under the

Portal-to-Portal Act, even where such travel occurs on |

the employer’s property. In Carter v. Panama Canal

Co., 463 F.2d 1289 (D.C. Cir. 1972), locomotive oper-

ators employed on locks operated by the Panama Canal

Company were required to be on board their locomotive

at the beginning of their shift. Prior to their shift, the

operators were required to check an assignment board

and then walk 2 to 15 minutes to reach their locomotive,

depending upon the location of the iocomotive to which

they were assigned. /d. at 1291. The court found that

the principal activity of the operators was operation of

the locomotive, and the actual place of performance of

their work was the locomotive itself. Jd. at 1294. The

court found “little room for question’”’ that the loco-

motive operators’ claims for compensation for time spent

walking to and from their locomotives were “precluded

by the Portal-to-Portal Act.” Jd. at 1292. Similarly, in

Ralph v. Tidewater Constr. Corp., 361 F.2d 806 (4th Cir.

1966), operating engineers and ironworkers employed in

were found to be noncompensable. 38 F.3d at 1125-26. The

Ninth Circuit’s opinion in this case would create the following

anomaly: knife-wielding employees, once they have performed the

“first principal activity” of donning, would be compensated for

time spent walking to the work station. Non-knife-wielding

employees, however, would not be compensated for such walking

time because their donning and doffing activities are not compens-

able. Any interpretation of the statute that yields such a result is

clearly in conflict with the statute’s plain meaning.

the construction of the Chesapeake Bay bridge sought

compensation for a daily boat ride to their work site,

which required 15 minutes to 1 hour each way. The

Fourth Circuit found that claims for such compensa-

tion were specifically precluded by Section 4(a) of the

Portal-to-Portal Act. Jd. at 808-09; 29 U.S.C. §254(a).

The Ninth Circuit’s conclusion that walking time is

compensable when it is incidental to compensable don-

ing and doffing is also implicitly in conflict with the opin-

ions of at least three courts of appeals that have rejected

such reasoning in addressing the compensability of travel

time for police dog handlers. For example, in Reich v. N. Y.

City Transit Auth., 45 F.3d 646 (2d Cir. 1994), dog

handlers employed by the New York Transit Authority

Police Department sought compensation for time spent

commuting with their dogs. Each handler had sole res-

ponsibility for the care of his or her dog and was required

to groom, feed, walk, train, house, and otherwise care for

the dog. Jd. at 648. The dog handlers were not permit-

ted to travel to work using public transportation but were

required to use their personal vehicles to transport the

dogs to and from work. Jd. The Second Circuit rejected

the argument of the Secretary that because the handlers

were required to perform compensable activities related

to caring for the dogs, the travel time to and from work

was, therefore, compensable. The court concluded that

the time spent by handlers driving to and from work

with their dogs, except to the extent that actual

duties of care, feeding, training, walking or cleaning

up occur during such commute, is not compensable

work. Such true dog-care work occurring during the

commute, however, is not exempted from compen-

sation by the Portal-to-Portal Act.

Id. at 652. Both the Federal Circuit and the Sixth Cir-

cuit have reached similar conclusions. See Bobo v.

United States, 136 F.3d 1465, 1468 (Fed. Cir. 1998),

and Atken v. City of Memphis, 190 F.3d 753, 758 (6th

Cir. 1999).

At least implicitly, these decisions reject the propo-

sition that the performance of some compensable activity

prior to or during travel time commences the workday

and renders such travel time compensable. In contrast,

under the reasoning of the Ninth Circuit, if a police dog

handler’s commute to work followed compensable dog

care activities, the time spent commuting would be

compensable. Under Section 4(a) of the Portal-to-

Portal Act, there is no distinction between time spent

“walking,” “riding,” or “traveling,” to a workplace.

29 U.S.C. §254(a). This is precisely the type of “‘ab-

surd” result the First Circuit in Tum I] recognized would

follow from the reasoning of the Secretary in that case

and that of the Ninth Circuit in this case. In Tum II, the

court observed that “[t]his extension overreaches and

would lead to the absurd result that an employee who

dons required equipment supplied by the company at

5:00 a.m., at his home, starts his workday for FLSA

purposes at 5:00 a.m. — even though he is not required

to punch in to work and does not punch in until 8:00

a.m. This plainly cannot be what Congress intended.”

Tum II, slip op. at 12-13.

The Ninth Circuit’s opinion in this case also rests on

the erroneous assertion that “[t]here is nothing in the

statute or regulations that would lead to the conclusion

that a workday may be commenced, then stopped while

the employee is walking to his station, then recom-

menced when the walking is done.”” Pet. App. at 19a.

The First Circuit in Tum II, the Tenth Circuit in Reich

v. IBP, and the Second Circuit in Reich v. N.Y. City

Transit Auth., however, found that time spent traveling

to or from the place where one’s principal work is per-

formed was not rendered compensable as a result of the

previous or intermittent performance of compensable

duties. Consistent with this reasoning, the Secretary’s

regulations additionally provide that

[w]ashing up after work, like the changing of

clothes, may in certain situations be so directly

related to the specific work the employee is em-

ployed to perform that it would be regarded as

an integral part of the employee’s “principal activ-

ity.”” ... This does not necessarily mean, however,

that travel between the washroom or clothes-

changing place and the actual place of perform-

ance of the specific work the employee is em-

ployed to perform, would be excluded from the

type of travel to which section 4(a) refers.

29 C.F.R. §790.7, n.49 (Pet. App. 92a-93a).

Even if Section 4(a)(1) of the Portal-to-Portal Act did

not expressly exclude walking time from compensable

activities, the walking time at issue in this litigation

would clearly be excluded as preliminary and postlimin-

ary activities. Section 4(a)(2) provides that “activities

which are preliminary and postliminary to said prin-

cipal activity or activities” are not compensable.

The regulations promulgated following the Portal-

to-Portal Act allow no other interpretation of the stat-

ute. 29 C.F.R. Section 790.7 (2003) provides in rele-

vant part:

(b) The words “preliminary activity” mean an

activity engaged in by an employee before the

commencement of his “principal” activity or

activities, and the words “postliminary activity”

mean an activity engaged in by an employee after

the completion of his “principal” activity or activ-

ities. No categorical list of “preliminary” and “‘post-

liminary” activities except those named in the Act

can be made, since activities which under one set

of circumstances may be “preliminary” or “post-

liminary” activities, may under other conditions

be “principal” activities.

(f) Examples of walking, riding, or traveling which

may be performed outside the workday and would

normally be considered “preliminary” or “post-

liminary” activities are (1) walking or riding by an

employee between the plant gate and the -mploy-

ee’s lathe, workbench or other actual place «f per-

formance of iis principal activity or activities. . . .

(g) Other types of activities which may be per-

formed outside the workday and, when performed

under the conditions normally present, would be

considered “preliminary” or “postliminary” activ-

ities, include checking in and out and waiting in

line to do so, changing clothes, washing up or

showering, and waiting in line to receive pay checks.

29 C.F.R. §790.7(b), (f), & (g) (footnote omitted).

There is no meaningful distinction between the walking

time at issue in this litigation and the example of “walk-

ing or riding by an employee between the plant gate and

the employee’s lathe, workbench or other actual place of

performance of his principal activity or activities” set

forth in the Secretary’s regulations.

The regulations make clear that only in extraordinary

circumstances will activities that are normally prelimin-

ary or postliminary be considered integral and indispens-

able to a principal activity. Explicit support for this

reasoning is set forth in the Secretary’s interpretive regu-

lations. As an example of a walking activity that would

be compensable, 29 C.F.R. Section 790.7(d) & (f) des-

cribes a logger who, while walking into the woods, would

be required to carry heavy equipment and distinguishes as

a noncompensable activity the carrying of “ordinary

hand tools.” The Ninth Circuit's finding here that such

walking activity is compensable is, therefore, not only

contrary to the statute, but also contrary to the relevant

interpretive regulations promulgated by the Secretary.

The Ninth Circuit’s reliance on Steiner v. Mitchell,

350 U.S. 247 (1956), to support its finding that the walk-

ing time at issue is compensable is clearly misplaced. In

Tum II, the First Circuit found that “nothing in Stemer

requires” the conclusion that compensable donning

commences the workday and that the workday contin-

ues‘ until the last act of compensable doffing is per-

formed. Tum II, slip op. at 13. Concurring, Chief Judge

Boudin recognized the implications of the Ninth Circwit’s

extension of Steiner noting that “the more serious prob-

lem for employers arises in cases such as this one by

attempts to extend Steiner further to walking and waiting

incident to such donning and doffing. This course may

greatly extend the amount of time in question and may

seem especially incongruous where the amount of time

spent in actually donning and doffing clothes and equip-

ment is generally pretty minimal.” Jd. at 22-23.

In Steiner, the employees worked in a battery plant

where their exposure to caustic and toxic chemicals

required that they change clothes prior to their shift and

shower in employer-provided facilities immediately after

their shift. 350 U.S. at 248. The Court in Steiner recog-

nized the general rule that clothes changing and shower-

ing are not compensable under “normal” circumstances.

Id, at 249. The Court found, however, that because of

the uniquely hazardous conditions present, the time

spent by employees showering and changing clothes was

compensable. /d. at 249.

In its opinion in Steiner, the Sixth Circuit found that

the showering and clothes-changing activities were com-

pensable, specifically relying on findings by the district

court that “[t}he use of sulphuric acid involves the

probability of deteriorating the clothing and, in some

cases, of burning the skin of those who have occasion to

handle it” and that “ ‘[s] torage battery manufacture is

recognized by the experts as one of the most hazardous

of the lead-using industries.’ ” Steiner v. Mitchell, 215

F.2d 171, 174 (6th Cir. 1954). Thus Steiner, like the reg-

ulations, makes clear that “preliminary” or “postlimin-

ary” activities will be found to be integral and indispens-

able te the principal activity only in narrow and unique

circumstances.

The Steiner decision has been widely recognized as a

narrow holding limited to its “unique facts.” See Tum II,

slip op. at 22 (Boudin, C.J., concurring) (observing

that im Stemer, “the dangers were extreme and unique to

the joo” ); Reich v. IBP, Inc., 820 F. Supp. 1315 (charac-

terizing the Stetner decision as “very narrow and closely

tied to the extreme facts presented by that case,” includ-

ing the “toxicity of the materials involved in manufactur-

ing batteries and discussed at length the dangers inherent

in working with such materials”); see also Reich v. N_Y.

City Transit Auth., 45 F.3d 646, 650 (noting that the

Supreme Court found that the activities in Stemer were

integral and indispensable “given the high risks to

employee safety”); Aguilar v. United States, 36 Fed. Cl.

560, 566 (1996) (stating that “(t]he exception fashioned

in Steiner narrowly construed the phrase ‘principal activ-

ity’ and found only a limited exception, expressly com-

pelled by health, hygiene, and safety considerations.

Steiner went to great lengths to emphasize that changing

clothes and showering are not compensable under ‘nor-

mal’ circumstances”’).

Any potential health risks that might arguably be faced

by meat processing workers are not comparable to those

present in Steiner, in which employees were exposed to

acid, lead, and other corrosive materials. Steiner, 350

U.S. at 249-50. The fact that, in the very limited circum-

stances present in such a hazardous work environment as

~ that described in Steiner, pre-shift and post-shift activi-

ties can be found to be integral and indispensable to a

principal activity in no way supports a conclusion that

the walking time of employees in this cas¢ is compens-

able. It is clear that any walking associated with the don-

ning and doffing activities at issue in this case are neither

a principal activity nor integral and indispensablé to a

principal activity under Steiner.

The Ninth Circuit’s expansion of the narrow holding of

Steiner is in direct conflict with the First Circuit’s opin-

ion in Tum JI and the Tenth Circuit’s opinion in Reich v.

IBP. The Ninth Circuit’s opinion is also in conflict with

other courts that have recognized the narrow scope of the

exception created by the Court’s holding in Stezner.

As Chief Judge Boudin recognized in Tum II, the Sec-

retary’s position in that case with respect to walking

time (and the Ninth Circuit’s holding in the present case)

is “a substantial step beyond Steiner” and that “[a]s

Steiner itself tempers the Portal-to-Portal Act’s main

thrust, probably its extension should be left to the Sup-

reme Court.” Tum II, slip op. at 26. In short, the opinion

of the Ninth Circuit in this case seeks to expand the

exception of Steiner to the point that it will swallow the

rule established by the Portal-to-Portal Act. The Ninth

Circuit’s reasoning further represents a return to the same

expansive definition of “compensable activities” that

prompted Congress, in 1947, to enact the Portal-to-

Portal amendment.

Il.

THE COMPENSABILITY OF WALKING TIME IS A

RECURRING AND IMPORTANT QUESTION.

Claims by meat and poultry workers for compensation

for time spent on pre-shift donning and post-shift doffing

activities have recently become pervasive. See, e.g., Tum

II, Nos. 02-1679, 02-1739 (1st Cir. Mar. 10, 2004); De

Ascencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir

2003); Reich v. Manfort, Inc., 144 F.3d 1329 (10th Cir.

1998); Gonzalez v. Farmington Foods, Inc., 296 F.

Supp. 2d 912 (N.D._ Ill. 2003); Anderson v. Pilgrim’s

Pride, 147 F. Supp. 2d 556 (E.D. Tex. 2001), aff’d., 44

Fed. Appx. 652; Pressley v. Sanderson Farms, Inc. 143

Lab Cas (CCH) 434,262 (S.D. Tex. Apr. 23, 2001),

aff'd without published opinion 33 Fed. Appx. 705 (5th

Cir. Mar. 7, 2002).

Throughout the history of the Portal-to-Portal Act,

similar claims for pre-shift and post-shift activities have

pervaded both private and public employment, and the

importance of the question presented is underscored by

the wide variety of employers that have faced such

claims. See, e.g., Bejil v. Ethicon Inc., 269 F.3d 477 (5th

Cir. 2001) (claims for donning and doffing of outer gar-

ments by employees engaged in the manufacture of medi-

cal supplies); Bagrowski v. Md. Port Auth. 845 F. Supp.

1116 (D. Md. 1994) (claim by Port Authority police offi-

cers for time spent donning uniforms); Reich v. N_Y.

City Transit Auth., 45 F.3d 646 (2d Cir. 1995) (Tran-

sit Authority police officers asserted claims for dog han-

dling duties and commuting time before and after their

regular work shift); Lindow v. United States, 738 F.2d

1047 (9th Cir. 1984) (claims for pre-shift activities by

employees of Army Corps of Engineers who operated

hydroelectric facilities); Barrentine v. Arkansas-Best

Freight Sys., Inc., 750 F.2d 47 (8th Cir. 1984) (truck

drivers asserted claim for pre-trip activities); Dunlop v.

City Elec., Inc., 527 F.2d 394 (5th Cir. 1976) (claims

asserted by electricians for compensation for various pre-

shift activities); Carter v. Panama Canal Co., 463 F.2d

1289 (D.C. Cir. 1972) (locomotive engineers sought

compensation for walking time prior to shift); Blum v.

Great Lakes Carbon Corp., 418 F.2d 283 (5th Cir. 1969)

(employees engaged in manufacture of carbon sought

compensation for time spent performing post-shift activi-

ties); Ralph v. Tidewater Constr. Co., 361 F.2d 806 (4th

Cir. 1966) (operating engineers and iron workers em-

ployed in construction of Chesapeake Bay bridge sought

compensation for daily boat trip to and from place of

work); Cherup v. Pittsburgh Plate Glass Co., 350 F. Supp.

386 (N.D. W. Va. 1972), aff'd by 480 F.2d 921 (4th Cir.

1973) (chlorine manufacturing employees sought com-

pensation for pre- and post-shift clothes changing); and

Nardone v. Gen. Motors, Inc., 207 F. Supp. 336 (D.NJ.

1962) (claims for pre-and post-shift activities of automo-

tive manufacturing employees). Recent claims asserted

against Honda Manufacturing of Alabama and Mercedes-

Benz U.S. International for compensation for pre-shift

and post-shift activities demonstrate the continued preva-

lence of these issues. Daily Labor Report (BNA) p. A-8

(jan. 9, 2003); Daily Labor Report (BNA) p. A-5 (Apr.

4, 2003).

—

As a result of the holding of the Ninth Circuit in the

present case, employers would additionally face claims

for walking time following what is considered to be the

first compensable pre-shift activity in any case and pre-

ceding the last compensable post-shift activity at the con-

clusion of the workday. The Ninth Circuit's opinion in

this case, therefore, creates large and unforeseen liabili-

ties for both public and private employers. In fact, any

employer that employs individuals who wear a smock, a

hairnet, work gloves, or other similar types of protective

garments would be subject to claims for walking and

travel time associated with obtaining, donning, doffing,

or disposing of such garments. As the First Circuit recog-

nized in Jum JJ, unless walking time associated with

“ordinary” and “light”? equipment is excluded by the

Portal-to-Portal Act, “an almost endless number of activi-

ties that precipitate the employees’ essential tasks would

be compensable.”” Tum J/, slip op. at 16. Under the hold-

ing of the Ninth Circuit in this case, police officers and

other public employees required to wear some type of

uniform wiil likely seek compensation for walking or

travel time following allegedly compensable donning

activities or preceding allegedly compensable doffing

activities. The unanticipated burden such claims would

create for state and local governments is alone arguably

sufficient to warrant grant of certiorari in this case. The

compensability of the walking time at issue in this case is,

therefore, a question of broad importance.

The need for clarity and consistency in interpreting the

Portal-to-Portal Act, as a general matter, has been fre-

quently acknowledged. See, e.g., Tum II, slip op. at 22

(Boudin, C.J., concurring) (noting with regard to applica-

tions of Steiner that “the precedents are not uniform”).

In fact, in 2002, the Solicitor of Labor commented with

regard to the compensability of pre-shift and post-shift

activities that “the court decisions are in wide conflict.”

(Address by Solicitor of Labor before the Industrial Rela-

tions Research Association (June 20, 2002) (transcript

available at http://216.239.37.104/search?q=cache:Sn1

BIHiK P9w] : www:irra.uiuc.edu/meetings/NPF2002/Sca-

lia’sIRRASpeech6-20-02.pdf(last visited Mar. 24, 2004))).

If not definitively resolved, the conflict created by the

Ninth Circuit’s opinion in this case will leave both public

and private employers subject to contradictory interpre-

tations of the FLSA and subject to vast, unforeseen, and

unpredictable liabilities that are arbicrarily dependent

upon the location of their operations.

CONCLUSION

For all the foregoing reasons, the Petition For Writ Of

Certiorari should be granted.

Respectfully submitted,

Daup R. WYLIE

D. CHRISTOPHER LAUDERDALE

HAYNSWORTH BALDWIN

JOHNSON & GREAVES LLC

918 South Pleasantburg Drive

Greenville, South Carolina

29607

(864) 271-7410

Attorneys for Amici Curiae

National Chicken Council,

Amencan Meat Institute,

and the

National Association of

Manufacturers.

April 2, 2004

OPPOSITION

BRIEF

No. 03-1238 | ormce oF ms cen |

IN THE

Supreme Court of the Anited States

IBP, INC.,

Petitioner,

Vv.

GABRIEL ALVAREZ, individually and as a class

representative; RANULFO GUTIERREZ, individually and

as a class representative; PEDRO HERNANDEZ,

individually and as a class representative; MARIA

MARTINEZ; RAMON MORENO;

ISMAEL RODRIQUEZ,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of A for the Ninth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

WILE ‘AM RUTZICK* DAVID MARK

KATHRYN GOATER LAW OFFICE OF

SCHROETER GOLDMARK DAVID MARK

& BENDER 810 Third Avenue #500

810 Third Avenue #500 Seattle, WA 98104

Seattle, WA 98104 (206) 340-1840

(208) 622-8000 Prof. Eduardo M. Penalver

Fordham Law School

140 W. 62™ St.

N.Y., N.Y. 10023

(212) 636-7016

Counsel for Respondents

April 2, 2004 * Counsel of Record

RPI Legal Printers. Seattle, Washingtoo

BEST AVAILABLE COPY |:

QUESTIONS PRESENTED

The questions presented by the parties are:

(1) Whether a writ of certiorari should be granted to

resolve federal issues when resolution of those issues will

not affect the judgment?

(2) Whether walking that occurs between compensable

clothes-changing and the time employees arrive at or depart

from their actual work stations constitutes non-

compensable “walking ... to and from the actual place of

performance of the principal activity ... which occur

either prior to [commencement], or subsequent to

[cessation of] such principal activity or activities” within

the meaning of §4(a)?

(3) Whether certiorari should be granted to resolve

supposed tension between Supreme Court opinions where

the opinions and supposed tension were not argued to the

Court of Appeals?

(4) Whether, after United States v. Mead, 533 U.S. 218

(2001), deference is due the Department of Labor’s

interpretation of the term “clothes” in Section 3(0), when

that interpretation is embodied in an opinion letter issued

by the Administrator of the Department’s Wage and Hour

Division, who is charged with administering and enforcing

the FLSA, when Congress has provided that third parties

may rely on such opinion letters, and when the opinion

letter itself restores the agency’s prior position?

Questions | and 3 are raised by respondents in this brief in

opposition to the certiorari petition. Questions 2 and 4 are

taken from IBP’s petition, except that the bold faced type

is added to complete the quotation of §4(a) of the Portal

Act, 29 U.S.C. §254(a).

STATEMENT REQUIRED BY RULE 14.1

Pursuant to Supreme Court Rule 14.1, respondents

state that there are two additional respondents/class

representatives to the proceedings in the court whose

judgment is sought to be reviewed and whose names do not

appear in the caption. They are Virginia Alvarez and Maria

Chavez.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.................:.ccsceccccoceccssececesserecees i

STATEMENT REQUIRED BY RULE 14.1.00.00000000000000... il

SL v

TT Ee Vili

STATEMENT OF THE CASE..............cccccccccccccsccccscecesesces l

a l

B. Inal Court Judgment and Alternative Meal

Break Damages Finding. ..............c.cccccccecccseeeeeee sees 2

C. The Ninth Circuit R land R

On State Law Meal Break Damages. ...................... 3

D. Department of Labor Opinion Letters and The

Parties’ Arguments as to Deference Thereto. ......... 4

E. Walking Time Was Held Compensable To the

Gal. Oeceet AR Enoced

REASONS FOR DENYING THE PETITION................... 9

SEE EERE EERE EEE EEE EEE EEE HEHEHE EEE EEE EH OHHH

POP UU EEO OOC EC COOCC COCO eee

OEE EEE EEE EEE HE EEE EEE EEE EEE EEE EEE EEE HEH

TABLE OF AUTHORITIES

; _—

Cases

Anderson v. Pilgrim's Pride Corp., 147 F.Supp.2d 556

(E.D. Tex. 2001), affd. in an unpublished opinion

2002 WL 1396949 (5™ Cir. 2002) .......ccccccccesseesseesveeees 14

Barnhart v. Walton, 535 U.S. 212 (2002)...........--. 6, 19, 20

Bejil v. Ethicon, Inc., 269 F.3d 477 (5" Cir. 2001)........... 21

Black v. Cutter Laboratories, 351 U.S. 292 (1956) ........... 9

Bragdon v. Abbott, 524 U.S. 624 (1998) ......ccccccesseesseeeeees 19

Chevron, U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984) ........ccccseesseeeseee 19, 20

Christensen v. Harris County, 529 U.S. 576

Se cciates cena enictealileciacialideidhdiadethiccatia 5, 6, 19, 20

FTC v. Grolier, Inc., 462 U.S. 19 (1983).............ccccceee0000 19

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .. 5, 6, 20, 21

Metzler v. IBP, Inc., 127 F.3d 959 (10" Cir. 1997),

aff'g Reich v. IBP, 3 BNA Wage and Hour Cas.2d 324

eee. eae 12, 13

Nguyen v. Excel Corp., 197 F.3d 200 (5" Cir. 1999) ....... 21

Owasso Ind. School Dist. v. Falvo,

REE eee 19

TABLE OF AUTHORITIES — continued

Page

Reich v. IBP, Inc., 38 F.3d 1123 (10" 1994),

affirming 820 F.Supp. 1315 (D.Kan. 1993)...... 11, 12, 13

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............. 5, 22

Steiner v. Mitchell, 350 U.S. 247 (1956) .............. 17, 18,19

Tum v. Barber Foods, Inc., _ F.3d. __, 2004 WL

437347 (1" Cir. March 10, 2004), replacing

ts it g > 69 13, 14, 15

United States v. Mead, 533 U.S. 218 (2001) ............. passim

STATUTES AND REGULATIONS

I id, aati aia 1

Se ansnsnesnseneneneaneenncensnemesnssessenmamenionsneansnes 4

ETI rensenseneasenntammmentenubsenseanatemmsussinontamanennets 11

yl yt | cn 16

EE lll ENTS EPC RE NES: 2. SE 16

TES TEESE 16

I Fe erennsconsecscconsnsnsemessenssnsnasensmemenseen passim

ERLE AEE cee eerie 11

RESP 7,17, 18

LAREN SPSS 14, 15, 17, 18

FID conesecscseressnsesnemmmmasensccassnsnemnemssnscsntnes 5

LEGISLATIVE HISTORY

Te, GI ceeienthitciinsasinsiesiniiianieibia 17

vii

TABLE OF AUTHORITIES - continued

SCHOLARLY AUTHORITIES —

R. Stern, E. Gressman, S. Shapiro & K. Geller,

Supreme Court Practice (8" ed. 2002) ........cc..ccse-se00000

WASHINGTON STATE AUTHORITIES

vill

TABLE OF APPENDICES

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

APPENDIX H

JUDGMENT FILED SEPTEMBER 14,

2001

APPELLANT'S OPENING BRIEF,

pages i-vi, 20, 21, 22

BRIEF FOR THE SECRETARY OF

LABOR AS AMICUS CURIAE,

pages i-v, 13, 14

PLAINTIFFS/APPELLEES/ CROSS-

APPELLANTS’ BRIEF,

pages i-iv, 19

IBP, INC."S REPLY BRIEF ON

APPEAL AND ANSWERING BRIEF

ON CROSS-APPEAL,

pages i-ix, 8

PETITION FOR REHEARING AND

PETITION FOR REHEARING EN

BANC, pages i-iii, 11, 12, 13

LETTER FROM U.S. DEPARTMENT

OF LABOR, DATED December 3, 1997

TO G.R. MURPHY AND R.J. MILLER

2001 WL 58864, OPINION LETTER

DATED JANUARY 15, 2001

TABLE OF APPENDICES - continued

CODE OF FEDERAL REGULATIONS

29 CFR. §790.4

29 CFR. §790.6

29 C.F.R. §790.7

29 CFR. §790.8

APPENDIX I

STATEMENT OF THE CASE

A. Factual Background.

In June 1998, plaintiffs brought suit alleging

violations of the Fair Labor Standards Act (“FLSA”), 29

U.S.C. §§201-216, and of Washington State law, including

inter alia the Washington Minimum Wage Act (“MWA”),

RCW chapter 49.46, and meal and rest break regulations,

WAC 296-126-092.

Plaintiffs are 815 beef slaughter and processing

workers at the IBP plant in Pasco, Washington. These

workers “are required to wear a variety of outer garments

and personai protective equipment.” Pet. App. 39a

(District Court Findings hereinafter “D.Ct.”). The required

protective equipment for knife users — the majority of the

plaintiffs — includes chain-link metal equipment such as

aprons, aprons with leggings, vests, sleeves, and gloves.

See id. at 39a-40a (D.Ct.).

The Court of Appeals explained: “At the start of a

shift, Pasco plant employees must gather their assigned

equipment, don that equipment in one of the Pasco plant’s

four locker rooms, and prepare work-related tools before

venturing to the slaughter or processing floors. At the end

of every shift, employees must clean, restore, and replace

their tools and equipment, storing all of it [in the plant].”

Pet. App. 3a-4a (Court of Appeals opinion hereinafter

“Ct.App.”).

IBP’s “30-minute” unpaid meal breaks “begin when

employees receive their last piece of meat and end when

employees receive their next piece of meat.” Pet. App. 4la

(D.Ct.). During this unpaid meal break, employees must

doff and don their protective equipment and tools in order

to use the restroom and cafeteria. Jd. Washington’s WAC

296-126-092 “requires that ‘[e]mployees be allowed a meal

period of at least 30 minutes.”” Pet. App. 30a (Ct.App.)

The District Court found that “IBP knew that meal breaks

in Washington had to be ‘at least 30 minutes,’” but “IBP

never attempted to provide the employees with a 30-minute

meal break.” Pet. App. 80a (D.Ct.).

B. Trial Court Judgment and Alternative Meal

Break Damages Finding.

The trial court awarded state and federal damages

based on time studied donning, doffing and activity

segments applied to each of 258 job classifications. Thus,

employees in each particular job classification were

awarded donning, doffing and activity time based on the

job classification’s equipment and tool work pre-shift,

during the meal break and post-shift. Pet. App. 36a, 55a-

58a & 77a-78a (D.Ct.).

State law meal break damages were hotly contested

in the trial court and on appeal. Plaintiffs argued that

breaks of less than 30 minutes had to be fully compensated

under state law, while IBP argued that the remedy for a

sub-30 minute meal break was the minutes worked.

The trial court awarded state law meal break

damages only for the minutes worked during the meal

break. Pet. App. 74a (D.Ct.). However, it made alternate

findings of fact on damages should it be reversed on

appeal on state law meal break damages. /d.

The trial court’s judgment awarded plaintiffs:

$3,098,517 ... comprised of $1,751,126 in

Fair Labor Standards Act (“FLSA”)

overtime damages, $156,344 in Washington

Minimum Wage Act (“MWA”) overtime

damages for periods preceding the FLSA

limitations period, $286,119 in MWA

minimum wage damages, and $904,928 in

rest break damages under Washington law....

Appendix 2a to this Brief In Opposition (hereinafter “Resp.

App.”).' The alternative meal break damages finding was

as follows:

If the Court is reversed on appeal on

its meal break ruling and Plaintiffs are held

entitled to 30 minutes compensation for each

meal break during which work was

performed, then Plaintiffs would be able to

recover $7,297,517, . . . comprised of

$5,487,561 in MWA overtime damages,

$905,028 [MWA] minimum wage damages,

and $904,928 in rest break damages under

Washington law....

Pet. App. 74a (D.Ct.; italics added).”

Cc. The Ninth Circuit Reversal and Remand On

State Law Meal Break Damages.

On appeal, the Washington State Attorney General

filed an amicus curiae brief urging that any meal break of

less than 30 minutes had to be fully compensated. The

Ninth Circuit affirmed the trial court on all issues, except

that it accepted plaintiffs’ and the State amicus curiae's

meal break arguments and reversed on meal break

' Respondents’ Appendix contains excerpts from the Court of

Appeals’ briefing on agency deference issues. The excerpts contain the

Table of Contents and Table of Authorities to show which cases were

cited and not cited. It also contains the text, with page numbers,

containing the agency deference arguments. See Appendix Table of

Contents infra.

? Plaintiffs recovered MWA minimum wage damages; they did not

have an FLSA minimum wage claim. See Pet. App. 28a-30a (Ct.App).

damages. The Ninth Circuit “remand[ed] for recalculation

of damages consistent with this full thirty-minute

remuneration approach.” Pet. App. 30a-32a (Ct.App.).

Because plaintiffs cannot recover overtime damages

for the same overtime work under both the FLSA and

MWA, and because plaintiffs’ state-law damages (as

modified on appeal) greatly exceed their FLSA damages,

on remand plaintiffs will recover all of their damages under

state law, without any FLSA recovery. See Pet. App. 74a

(D.Ct.)(quoted above). Plaintiffs’ MWA overtime damages

— with full meal break compensation — will be $5.5 million,

three times as much as the $1.75 million they could have

recovered for FLSA overtime claims.

D. Department of Labor Opinion Letters and The

Parties’ Arguments as to Deference Thereto.

In December 1997, John R. Fraser, the Department

of Labor’s Acting Wage and Hour Division Administrator

(hereinafter “DOL Administrator”) issued an opinion letter

that donning and doffing meatpacking industry wire mesh

and related equipment did not involve FLSA §3(0), 29

U.S.C. §203(0), “changing clothes.” Resp. App. 44a-47a.

In January 2001, DOL Administrator T. Michael Kerr

issued an opinion letter that reaffirmed the December 1997

opinion letter and rejected prospective-only application of

the letter. Resp. App. 48a-50a.

IBP argued in its Court of Appeals opening brief

that the Fraser and, by implication, Kerr opinion letters

were entitled to little deference because they contradicted

earlier positions of the Department of Labor (“DOL”):

Thus, the Fraser reading of Section 3(o)

conflicts with the Secretary’s reading, and it

is well established that “{aJn agency

interpretation . . . which conflicts with the

agency’s earlier interpretation is ‘entitled to

considerably less deference’ than a

consistently held agency view.” JNS v.

Cardoza-Fonseca, 480 U.S. 421, 446 n.30

(1987) (quoting Watt v. Alaska, 451 U.S.

259, 273 (1981)).

Resp. App. 1 la.

In June 2002, DOL Administrator Tammy D.

McCutchen issued an opinion letter rejecting the Fraser and

Kerr opinion letters. Pet. App. 94a-100a. DOL’s then-

Solicitor filed a June 2002 amicus curiae brief which,

relying on the McCutchen opinion letter, supported IBP’s

§3(0) position (and supported plaintiffs’ walking time

position). Resp. App. 12a-18a.°

Plaintiffs’ opening brief to the Court of Appeals

agreed with IBP that the DOL Administrators’ opinion

letters were of limited use because they conflicted with

each other, citing JNS v. Cardoza-Fonseca. Resp. App.

26a. In its reply brief, IBP argued the withdrawn opinion

letters were not entitled to deference, citing Christensen v.

Harris County, 529 U.S. 576, 587-588 (2000) and

Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944). Resp.

> The DOL Solicitor’s amicus curiae brief did not cite case

law on the issue of deference to be afforded the McCutchen

§ 3(0) opinion letter or the effect of prior inconsistent § 3(0)

opinion letters. However, on the changing clothes issue, the

Solicitor cited a regulation (29 C.F.R. § 790.8(c)), and wrote:

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944),

holds that the Secretary’s interpretative regulations

“constitute a body of experience and informed judgment

to which courts and litigants may properly resort for

guidance.” See also United States v. Mead, 533 U.S.

218, 227-28 (2001). Resp. App. 18a n. 5.

App. 37a. IBP’s reply brief did not argue for higher-than-

Christensen deference for the 2002 opinion letter and did

not cite United States v. Mead, 533 U.S. 218 (2001) or

Barnhart v. Walton, 535 U.S. 212 (2002). Jd. at 31a-37a.

The Ninth Circuit relied on JNS v. Cardoza-Fonseca

— the authority relied on by plaintiffs and IBP — in limiting

the deference afforded the 2002 opinion letter, stating:

As the Supreme Court has directed, “[a]n

agency interpretation of a relevant provision

which conflicts with the agency’s earlier

interpretation is entitled to considerably less

deference than a consistently held agency

view,” INS v. Cardoza-Fonseca, 480 U.S.

421, n.30 (1987), and we reject the

Secretary’s new, inconsistent interpretation

here.

Pet. App. at 17a (Ct.App.). Thus, neither the plaintiffs, IBP

nor the DOL Solicitor made the argument for which IBP

seeks certiorari, i.e., that higher-than-Christensen

deference was due the DOL Administrator’s 2002 opinion

letter pursuant to United States v. Mead, supra, or Barnhart

v. Walton, supra.’

* In its Petition for Rehearing and Petition for Rehearing En Banc,

pp. 11-12, IBP cites pre-Christensen Supreme Court authority for the

propositions that (1) an agency's interpretation of its own regulations

are given “substantial deference” and (2) prior inconsistent

interpretations are not necessarily fatal. Resp. App. at 42a-43a. Thus,

even when moving for rehearing, IBP did not make the Mead v. United

States or Barnhart v. Walton argument which it now seeks to raise in its

Petition For a Writ of Certiorari.

E. Walking Time Was Held Compensable To the

Extent It Occurred After the First Principal

Activity and Before the Last Principal Activity.

The District Court held that walking time is

compensable when it occurs after the start of the workday

and before the cessation of the workday, citing inter alia 29

C.F.R. §790.6(b). Pet. App. 53a-54a (D.Ct.)° It found that

walking time from the locker room to the workstation and

back met this test for compensability, stating:

Protective equipment is integral and

indispensable to the work of employees

required to wear such equipment.

Employees who wear protective equipment

begin their day upon donning their first

piece of compensable protective equipment.

This equipment is stored in the employee

locker, as per IBP policy. ... [T]he

reasonable walking time from the locker to

workstation and back ... is compensable for

employees required to don and doff

compensable personal protective equipment

stored in their lockers, as is walking time

thereafter, as it occurs during the “work

day.”

* 29 C.F.R. § 790.6(b) inter alia provides:

“Workday” as used in the Portal Act means, in

general, the period between the commencement and

completion on the same workday of an employee's

principal activity or activities. It includes all time

within that period whether or not the emph yee

engages in work throughout all of that period.

Pet. App. 90a-9 1a.

Id; accord, Pet. App. 58a (storing equipment is

“integral and indispensable to the workers’ duties”)

& 40a (slaughter employees “begin their day by

picking up supplies at the supply room, then go to

the locker room, where they retrieve their assigned

protective equipment, steels and tools. Most

slaugiiter employees don me=* of their equipment in

the locker room”).° The - lass members thus

recovered between 2 to 3 minutes of locker to work

— walk time per day. See Pet. App. 57a (D.

t).

The Ninth Circuit affirmed the conclusion

that walking time between locker room and work

station was compensable, stating:

rhe district court properly reasoned that the

workday commenced with the performance

of a preliminary activity that was “integral

and indispensable” to the work, and the

distnict court also properly determined that

any activity occurring thereafter in the scope

and course of employment was

compensable. Thus, the district court

included “the reasonable walking time from

* The District Court recognized that:

Walking time is compensable if it occurs after the

start of the work day. 29 U.S.C. § 254(a). Walking

tume is excluded under the Portal to Portal Act only if

it occurs “either prior to the time of any particular

work day at which such employee commences or

subsequent to the time on any particular work day at

which he ceases, such principal activity or activities.”

Id.

Pet. App. 53a, 54a.

the locker to work station and back . . . for

employees required to don and doff

compensable personal protective

equipment” in its “compensable” time

measure

Pet. App. 18a (Ct.App.).

REASONS FOR DENYING THE PETITION

1. THE FEDERAL ISSUES RAISED IN THE

PETITION WILL HAVE NO IMPACT ON

THE JUDGMENT IN THIS CASE.’

The Supreme Court “reviews judgments, not

statements in opinions.” Black v. Cutter Laboratories, 351

U.S. 292, 297-98 (1956). It follows that this Court should

not accept certiorari when the issues it is being asked to

decide would not have an impact on the judgment in that

case. See R. Stern, E. Gressman, S. Shapiro & K. Geller,

Supreme Court Practice 231 (8 ed. 2002).

None of the issues raised by IBP’s Petition will

have any impact on the judgment in this case. Regardless

of any ruling in this Court on the issues raised by IBP, the

plaintiffs herein will recover all of their damages under

state law. That can be seen from the District Court’s

judgment and its alternative finding. The District Court

’ IBP limited its petition to two issues while recognizing that

“respondents’ complaint and the opimions below, addressed several

other FLSA and State law issues that are not the subject of this

petition.” Pet. 7 n. 3.

The FLSA §3(0) and Portal Act §4(a) issues do not impact MWA

claims because “there is no §3(0) or Portal-to-Portal equivalent under

State law.” Pet. App. 71a (D.Ct.). IBP did not challenge this finding

on appeal nor did it preserve an argument that federal law preempts

Washington wage and hour law. See Resp. App. 28a & n.15 (Ct.App.).

held FLSA and MWA overtime recoveries were duplicative

and limited plaintiffs to recovery under either the FLSA or

MWA overtime for overlapping periods of time. See Pet.

App. 80a (D.Ct.).

The original judgment awarded FLSA overtime

damages of $1,751,126 for the period that FLSA and MWA

overtime claims overlapped. Resp. App. 2a. Plaintiffs

recovered MWA overtime damages of only $156,344, “for

periods preceding the FLSA limitations period.” /d.*

The trial court, however, made the alternative

finding that would apply “if the Court is reversed on appeal

on its meal break ruling and Plaintiffs are held entitied to

30 minutes compensation for each meal break during which

work was performed ....”. Pet. App. 74a. Under this

alternative finding plaintitfs’ recovery would be entirely

under state law because the state overtime damages would

be $5,487,561 which is far in excess of the $1,751,126

FLSA overtime damages. See id.

The Court of Appeals reversed the District Court on

its state law meal break ruling, holding plaintiffs entitled to

30 minutes compensation for each meal break during which

work was performed. Pet. App. 32a (Ct.App). Thus,

plaintiffs’ recovery is entirely supported by an independent

and adequate state law ground. Indeed, the damages

awarded to plaintiffs under state law will be the only ones

set forth in the judgment on remand. Plaintiffs will receive

a judgment based entirely on state law whether the Ninth

Circuit is affirmed or is reversed on the issues raised in this

petition. Any opinion this Court renders on the federal

* The FLSA claims exceeded the MWA claims because (1) plaintiffs

recovered FLSA liquidated damages and (2) state meal break damages

were limited to actual minutes worked, i¢., the same as FLSA meal

break damages. See Pet. App. 60a-6la, 74a, 78a-79a & 80a (D.Ct.).

issues raised by Petitioner will therefore be wholly

advisory.

Il. THE WALKING TIME ISSUE IS FACT

BOUND AND NOT SUBJECT TO A MATURE

CONFLICT AMONG THE CIRCUITS.

A. The Ninth and Tenth Circuits Agree That

Pre- and Post-Production Walking Time

May Be Compensable Under §4(a) of the

Portal Act.

Section 4(a) of the Portal Act, 29 U.S.C. §254(a),

excludes from hours worked only walking activities “which

occur either prior to the time on any particular workday at

which such employee commences, or subsequent to the

time on any particular workday at which he ceases, such

principal activity or activities.” Pet. App. 88a. Federal.

regulations interpret §4(a) to mean that “periods of time

between the commencement of the employee’s first

principal activity and the completion of his last principal

activity on any workday must be included in the

computation of hours worked to the same extent as would

be required if the Portal Act had not been enacted.” 29

C.F.R. §790.6(a).

The Ninth Circuit herein and the Tenth Circuit, in

Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10" 1994),

affirming 820 F.Supp. 1315 (D.Kan. 1993), each accepted

the proposition that the walking is compensable between

the first and last principal activity, even if the principal

activity is not production work.

Herein, after reviewing evidence from a 20-day

trial, the District Court found that the workday began and

ended at the locker room, where the workers retrieved,

donned, doffed and stored equipment and tools in

accordance with IBP policy. Pet. App. 53a-54a & 57a-58a

(D.Ct.). As a result, plaintiffs recovered between 2 to 3

minutes of daily walk time between the locker and work

station. /d. The Ninth Circuit affirmed the compensability

of walk time. Pet. App. 18a-19a (Ct.App.). Based on

findings from the evidence at trial, both the District Court

and the Ninth Circuit agreed that walking time between the

locker room and work stations was compensable because

the workday had commenced and ended in the locker room.

Both relied on 29 C.F.R. §790.6. Pet. App. 18a (Ct.App.)

& 54a (D.Ct.).

In Reich v. IBP, supra, after a 3-day trial covering

11 IBP beef and pork plants, the trial court concluded that

the first and last principal activity occurred at the knife

room, when employees retrieved sharpened knives pre-shift

and returned used knives post-shift. 820 F.Supp. at 1325.

Therefore, the trial court held walk time between the knife

room and work stations was compensable as occurring

during the workday, citing inter alia 29 C.F.R. §790.6. Id.

On appeal, the Tenth Circuit “agree[d] with the district

court’s determination on the issues of compensable

working time ... for substantially the reasons set forth by

the district court.” 38 F.3d at 1125. Following remand and

appeal, the Tenth Circuit affirmed the damages award

which included three minutes of compensable pre-shift and

post-shift walking time. Metzler v. IBP, Inc., 127 F.3d 959,

963 & 966 (10" Cir. 1997), aff'g Reich v. IBP, 3 BNA

Wage & Hour Cas.2d 324, 329 (D.Kan. 1996).

IBP argues, at Pet. 12, that “as the Tenth Circuit

described it, even compensable clothes changing is not the

‘first and last principal activit[y] of the workday which

would commence and toll the running of the timeclock’

such that all walking time between clothes changing and

the work station is compensable. Reich /v. BP], 38 F.3d at

1127.” In fact, the Tenth Circuit, 38 F.3d at 1127, was

describing what “the district court nevertheless declined to

hold.” The issue before the Tenth Circuit was not whether

compensable clothes changing could start and end the

workday, but rather whether to reverse trial court findings

that were inconsistent with awarding locker to knife room

walking time. See id.; 820 F.Supp. at 1321 (variations in

were and when donning and doffing occurred) & 1326

(locker room use primarily for benefit of employees).

The Tenth Circuit affirmed fact-specific trial court

findings about locker to knife room walking time; it did not

adopi a legal principle that walking time was compensable

only while production work was occurring. We know this

because, as is discussed supra, the district court held pre-

and post-production walking time from the knife room to

the work station and back was compensable, and the Tenth

Circuit affirmed these walking time findings twice -- in

Reich v. IBP and again in Metzler v. IBP.

The Tenth Circuit and Ninth Circuit decisions are

therefore fully consistent. Each upheld walking time

awards based on its trial court’s fact-bound findings

regarding the workday’s first and last principal activity.

Each affirmed findings that treated non-production activity

as starting and ending the workday for §4(a) walking

purposes.

B. The First Circuit’s Recent Opinion

Presents an Immature Dispute Among the

Circuits That Would Benefit From

Further Development.

IBP argues that “the First Circuit squarely rejected

the very reasoning the Ninth Circuit adopted” citing Tum v.

Barber Foods, Inc., 331 F.3d 1, 6 (1" Cir. 2003). Pet. 12.

However, the First Circuit withdrew the opinion relied on

by IBP and replaced it with Tum v. Barber Foods, Inc., __

F.3d. _, 2004 WL 437347 (1" Cir. March 10, 2004). The

new opinion does not squarely address the argument

adopted by the Ninth Circuit that 29 C.F.R. §790.6 makes

compensable walking time that occurs between the first and

last principal activity. Pet. App. 18a (Ct.App.). Indeed, the

First Circuit does not address 29 C.F.R. 790.6 at all.

Rather, it relies largely on footnote 49 in 29 C.F.R. §790.7

without explaining the precise interpretation of that

footnote or its connection to other regulations such as

§790.6.”

Footnote 49 quotes from colloquy between Senators

Cooper and McGrath to the effect that changing of clothes

may in certain circumstances be an integral part of the

employee’s principal activity. It goes on to say that the fact

that such clothes changing would be excluded from §4(a)

of the Portal Act does “not necessarily mean, however,”

that travel between the clothes changing place and the

actual place of performance of the specific work would also

be excluded from §4(a) of the Portal Act. To say that

something is not necessarily excluded means, at a

minimum, that it may be excluded. The question then

becomes under what circumstances will travel between the

clothes changing place and the actual place of performance

of the specific work be excluded from §4(a) of the Porial

Act and under what circumstances will such travel be

included as being subject to §4(a) of the Portal Act. Both

the legislative history quoted at footnote 47 of §790.7 and

* Tum relies on Anderson v. Pilgrim's Pride Corp., 147 F.Supp.2d

556, 563, (E.D. Tex. 2001), affd. in an unpublished opinion, 2002 WL

1396949 (5" Cir. 2002). However, the court concluded on the facts

' presented therein that “the clothes changing activity required of the line

employees in this case is not ‘integral and indispensable’ to their

principal jobs.” (emphasis added) Without finding clothes changing to

be 2 principal activity, no circuit court would find post-changing

walking time to be compensable. The cases are fact specific.

the discussion at §790.6 help answer that question, but the

First Circuit opinion did not refer to those sources.

In any event, any conflict between the conclusions

reached by the First and Ninth Circuits is a narrow one that

may well resolve itself with further circuit court review.

Such review may reconcile 29 C.F.R. §790.6 and footnote

49 in 29 C.F.R. §790.7 by developing criteria for

distinguishing between compensable and non-compensable

walking time. Meanwhile, this does not present an issue of

significant national importance requiring immediate

Supreme Court consideration. The few opinions to date are

intensely fact-bound. They involve only a few industries

and small amounts of time. The circuits should be allowed

an opportunity to consider each other’s reasoning and to

develop a consensus before this Court decides whether or

not to take up the issue.'°

'° The concurrence by Chief Judge Boudin in Tum argues that:

two positions are juxtaposed. One is the Secretary's

mechanical combination of Steiner with a rigid

“everything after is work” principle. The other is to

treat required donning and doffing as compensable

where more than de minimis but, where it is not,

leaving both it and any associated walking and

waiting time as non-compensable. Neither outcome

is impossible analytically and neither is clearly

dictated by Supreme Court precedent or underlying

policy.

2004 WL 437347 at 9 (emphasis in original.)

The concurrence further suggests that: “it may be time for the

Supreme Court to have another look at the problem.” /d. at 10.

However, as discussed above, those are not the only two positions. An

intermediate position can reasonably be found pursuant to 29 C.F.R.

§§ 790.6 and 790.7. Moreover, any virtues of this Court reviewing the

Cc. The Ninth Circuit’s Analysis Is Correct.

In any event, the Ninth Circuit correctly applied the

applicable federal law. The exclusion in §4(a) of the Portal

Act is limited by the statutory language to activities “which

occur either prior to the time on any particular workday at

which such employee commences, or subsequent to the

time on any particular workday at which he ceases, such

principal activity or activities.”

A further source of authority is the Secretary of

Labor’s Portal Act interpretive regulations which were

adopted in 1947 and are contained at 29 C.F.R. §§790.1 -

790.22. Section 790.4(b) states the basic rule that §4(a)

activity is excluded only if it occurs before or after all

principal activities.'' The regulations draw heavily on the

issues discussed in the concurrence, would be largely lost in accepting

review in a case such as this one in which the result of this Court's

analysis would not affect the judgment in the case.

'' 29 C.F.R. § 790.4 states:

(b) Under section 4 of the Portal Act, an employer

who fails to pay an employee minimum wages or

overtime compensation for or on account of activities

engaged in by such employee is relieved from

liability or punishment therefor if, and only if, such

activities meet the following three tests:

(1) They constitute “walking, riding, or travelling”

of the kind described in the statute, or other

activities “preliminary” or “postliminary” to

the “principal activity or activities” which the

employee 1s employed to perform; and

(2) They take place before or after the

performance of all the employee’s

“principal activities” in the workday ....

(Emphasis added).

legislative history to the Portal Act, which is cited in

footnotes. The colloquy between Senators Cooper and

McGrath explains that the Portal Act term “principal

activities” includes activities which are an integral part of a

principal activity and is referred to directly or indirectly in

footnotes 47, 49, 59, 60, 63, 64, 65, 66, and the

accompanying text. This legislative history demonstrates

that Congress intended to eliminate “from compensation

walking, traveling, riding, and other activities which are not

an integral part of the employment for which the worker is

employer [sic].” 93 Cong. Rec. 2299 quoted at 29 C.F.R.

§790.7 fn. 47. (Emphasis added.) This needs to be read

together with 29 C.F.R. §790.6(b) which defines the

workday “in general” to mean the period between

commencement and completion of an employee’s principal

activity or activities and §790.4 which limits the Portal Act

to activities that take place before or after all of the

employee’s principal activity in the workday.

In Steiner v. Mitchell, 350 U.S. 247 (1956), the

Supreme Court agreed with the Sixth Circuit’s “holding

that the term ‘principal activity or activities’ in Section 4

embraces all activities which are ‘an integral and

indispensable part of the principal activities,’ and that the

activities in question fall within this category.” 350 U.S. at

252-53. The Supreme Court relied heavily on “the

colloquy between several Senators and Senator Cooper, a

sponsor of the bill and a member of the three-man

subcommittee that held hearings of the Committee on the

Judiciary which reported it.” 352 U.S. at 254 & n.5 & 256-

259 (appendix containing colloquy).

This Court’s conclusion in Steiner was:

We, therefore, conclude that

activities performed either before or after the

regular work shift, on or off the production

line, are compensable under the portal-to-

portal provisions of the Fair Labor Standards

Act if those activities are an integral and

indispensable part of the principal activities

for which covered workmen are employed

and are not specifically excluded by

§4(a)(1).”

352 U.S. at 255. IBP argues:

Steiner's reference to activities “not

specifically excluded by Section 4(a)(1)”

can only be understood as a clarification that

an “integral and indispensable” — and

therefore compensable — activity does not

render compensable all walking that occurs

between that “integral and indispensable”

activity and the work station.

Pet. 13. IBP reads too much into the “not specifically

excluded” phrase. Steiner acknowledged that activities

which are an integral and indispensable part of principal

activities may nevertheless be specifically excluded by

§4(a)(1), but was not attempting to analyze what §4(a)(1)

means. Steiner never addressed the Secretary’s regulations

which define “workday” in terms of principal activities and

which adopted the legislative history that “principal

activities” include activities which are an integral part of a

principal activity. 29 C.F.R. §790.6(b), §790.7, n. 47.

There is thus no basis to conclude that in Steiner this Couri

was rejecting that interpretation.

In this case, the District Court found that work

occurring in the locker was an integral and indispensable

part of the principal activities and occurred during the

workday and concluded that walking to and from the locker

was therefore compensable. Pet. App. 40a, 54a & 58a

(D.Ct.). These findings were based on the evidence and are

supported by the Secretary’s interpretative regulations.

Steiner v. Mitchell does not undermine the Secretary of

Labor’s Portal Act regulations, nor is it inconsistent with

the Ninth Circuit’s opinion herein.

Il. CERTIORARI ON MEAD MODIFICATION

OF CHRISTENSEN 1S INAPPROPRIATE

WHERE NOBODY ARGUED THE ISSUE AND

THE NINTH CIRCUIT NEVER ADDRESSED

IT.

This Court’s practice is to decide cases only on

grounds that were (a) raised and (b) considered in the Court

of Appeals and (c) included in the question on which the

Court granted certiorari. Bragdon v. Abbott, 524 U.S. 624,

638 (1998); Owasso Ind. School Dist. v. Falvo, 534 U.S.

426, 431 (2002) As articulated in FTC v. Grolier, Inc., 462

U.S. 19, 23 n.6 (1983):

Respondent did not raise this issue before

the District Court or the Court of Appeals

and we decline to address it.

IBP asks this Court to consider whether the Ninth

Circuit gave proper deference to the 2002 opinion letter in

light of United States v. Mead, supra. Pet. “i”. IBP argues

that Mead, supra, and Barnhart v. Walton, supra, modify

Christensen v. Harris County, 529 U.S. 576 (2000), which

held that less formal agency interpretations are not entitled

to the deference set forth in Chevron, U.S.A. Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Pet. 19-

26.

Mead, Barnhart, and Chevron had all been decided

prior to June, 2002 when the appellate briefing in this case

began. Yet IBP never cited Mead, Barnhart, or Chevron in

any Ninth Circuit briefing. To the contrary, IBP relied on

Christensen having “recently clarified that an agency’s

interpretation of a statute contained in an opinion letter

does not warrant the usual deference given to agency

interpretations ... .” Resp. App. 10a (opening brief); see

also, Resp. App. 37a (reply brief).

Either IBP was unaware that these later cases may

have modified Christensen or it chose not to make the

argument. In either event, these cases and arguments based

thereon were not presented to the Ninth Circuit, and,

consequently, the Ninth Circuit did not address them in its

opinion below. Indeed, both sides used their opening briefs

to argue that conflicting agency opinions have little weight,

citing JNS v. Cardoza-Fonseca, supra, Resp. App. lla

(IBP’s opening brief) & 26a (Plaintiffs’ opening brief).

IBP failed to use its reply brief to argue that the newest

conflicting opinion was entitled to greater deference under

either Mead or Barnhart. Resp. App. 37a. Given the

parties’ argument it is hardly surprising that the Ninth

Circuit relied on JNS v. Cardoza-Fonseca. Pet. App. 17a n.

Having lost in the Court of Appeals, IBP now

argues for the first time that Mead, Barnhart, and Chevron

~— which it never cited to the Court of Appeals — create an

issue which should be decided by this Court. Granting

certiorari on this issue would shut the lower courts out of

the decision making process, prevent this Court from

getting the benefit of the Court of Appeals’ analysis, and be

inconsistent with this Court’s practice described above.

IV. THERE IS NO CIRCUIT CONFLICT OVER

§3(0) AND PROTECTIVE EQUIPMENT; THE

NINTH CIRCUIT GAVE APPROPRIATE

DEFERENCE TO THE 2002 OPINION

LETTER.

The Ninth Circuit in Alvarez pointed out that no

Court of Appeals decision had addressed the issue of

whether putting on and taking off protective gear

constitutes “changing clothes” as that term is used in the

FLSA. See Pet. App. 14a-15a. (citing Nguyen v. Excel

Corp., 197 F.3d 200, 203 (5" Cir. 1999) and noting that the

plaintiffs there raised a similar §3(0) safety gear claim but

the Court did not reach the issue). IBP relies on Bejil v.

Ethicon, Inc., 269 F.3d 477, 480 n.3 (5 Cir. 2001) as the

source of a circuit conflict on the §3(0) issue. Pet. 18.

However, the clothes at issue in Benjil were sanitary

garments such as lab coats, facial hair covers, and shoe

covers. Bejil, 269 F.3d at 479. Those items are not fairly

comparable to the mesh, scabbards, other protective

equipment and tools which were the subject of the Ninth

Circuit’s analysis. Indeed, the District Court in this case

held that items comparable to the items at issue in Benjil,

e.g., frocks, hair nets, boots and safety glasses were subject

to §3(0). Pet. App. 56a-57a & n.9 (D.Ct.). Plaintiffs did

not appeal that ruling. Thus, there is no conflict between

the Alvarez and Bejil opinions.

Contrary to IBP’s rather hyperbolic phrasing, the

Ninth Circuit neither “utterly disregard{[ed]” nor ignored

the DOL’s §3(0) interpretations. Pet. 26. Rather, the Court

considered the interpretations together with applicable

dictionary definitions, principles of statutory construction,

and other regulations of the Secretary of Labor. Pet. App.

14a-17a (Ct.App.). Citing this Court’s opinion in JNS v.

Cardoza-Fonseca (which was relied on by both parties),

the Court rejected “the Secretary’s new, inconsistent

interpretation here.” /d.,n.9. Both United States v. Mead

Corp., supra and Skidmore v. Swift & Co., 323 U.S. 134

(1944), list relevant principles a court should consider in

determining what weight to be given to informal agency

interpretation including the thoroughness of consideration,

its consistency, and its power to persuade. Skidmore, 323

U.S. at 140; Mead, 533 U.S. at 235. The Ninth Circuit’s

analysis was entirely consistent with those principles.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

William Rutzick* David Mark

Kathryn Goater LAW OFFICE OF DAVID

MARK

SCHROETER,

GOLDMARK & BENDER 810 Third Avenue #500

810 Third Avenue #500 Seattle, WA 98104

Seattle, WA 98104 (206) 340-1840

(206) 622-8000

Prof. Eduardo M. Penalver

Fordham Law School

140 W. 62™ St.

N.Y., N.Y. 10023

(212) 636-7016

Counsel for Respondents

April 2, 2004 * Counsel of Record

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

(Filed September 14, 2001]

No. CT-98-5005-RHW

GABRIEL ALVAREZ et al.,

Plaintiffs,

Defendant.

JUDGMENT

This action came on for trial before this Court, the

Honorable Robert H. Whaley, United States District Judge,

presiding, and the issues having been duly tried and a

decision having been duly rendered,

IT IS ORDERED AND ADJUDGED:

That the Plaintiffs, Gabriel Alvarez, et al. recover of

the Defendant, IBP, Inc. the sum of $3,098,517, with interest

thereon at the rate provided by 29 U.S.C. § 1961, 3.43%.

This judgment is based on damages calculated through May

14, 2000, and is comprised of $1,751,126 in Fair Labor

Standards Act (“FLSA”) overtime damages, $156,344 in

Washington Minimum Wage Act (“MWA”) overtime

damages for periods preceding the FLSA limitations period,

$286,119 in MWA minimum wage damages, and $904,928

in rest break damages under Washington law (which includes

rest break preyudgment interest).

The Court finds that Plaintiffs are entitled to their

costs of action and reasonable attorneys’ fees and costs under

applicable state and federal law. Plaintiffs are directed to file

a motion to establish these attorneys fees within 4 weeks of

entry of this judgment and to file a cost bill with the Clerk

pursuant to Fed. R. Civ. P. 54(d)(1).

IT IS SO ORDERED. The District Court Executive

is directed to enter this order and to provide copies to

counsel.

DATED this 14" day of September 2001.

/s/ Robert H. Whaley

ROBERT H. WHALEY

United States District Judge

APPENDIX B

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

[Filed June 3, 2002

CA Nos. 02-35042 & 02-35110

GABRIEL ALVAREZ, et al., individually and as class

representatives,

Plaintiffs/Appellees/Cross-Appellants,

IBP, INC.,

Defendant/Appellant/Cross-Appellee.

CROSS-APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT OF

WASHINGTON

(Hon. Robert H. Whaley)

No. CT-98-5005-RHW

APPELLANT’S OPENING BRIEF

Michael B. King

Barbara J. Duffy

Douglas E. Smith

Nancy W. Anderson

LANE POWELL SPEARS LUBERSKY LLP

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT

a ED cecrcnrntnesnnmmmmmemmsmnniedl iv

EE |

A. Subject Matter Jurisdiction in the District Court .................00..0 —

B. _ Finality of Judgment From Which Appeal Taken,

and Statutory Basis for This Court's Jurisdiction....................00000008 l

eee 2

O00 2

1. Exclusion of Clothes Changing Time.........................0000000:008 2

2. Compensability of Walk Time .....................:0s0ssessessseeeeeeeseneens 2

3. Good Faith Reliance on the Secretary of

Labor's Enforcement Policy ....................s00ssseeeseenesneneeres eneees 2

4. Application of the "De Minimis” Rule ......................000000000 c00 3

5. Extension of the Statute of Limitation Period

and Award of Liquidated Damages................-.--..-s0:s0ssee esses 3

rn a nanacecscsccscncescesen seen seesneencnsevgcesesnsnennvenenensccensorenenensescnen 3

1. Overtime Exemption for Agricultural

Commodity Workers ...................sessesssnersseenneneenesnnnensnesnscnnenns 3

2. Minimum Wage Compliance Standard ....................0000:008 3

115386.0001/921153.1

3. Meal and Rest Break Claims .o..0.0.0..........ccccccccccsesesceeeese cevennn 4

I aera canine 4

EE A ee 7

A. Nature of the Work at IBP’s Pasco, Washington

LALLA 7

B. Collective Bargaining History ..........................ccsesseseeeeeeeeese erreeeeees 8

C. The Secretary of Labor's Enforcement Action

EL ee 10

SUMMARY OF ARGUMENT ...0.o........cccccceccsesesesesesesesesvssesnsosensseseeeneneners tenes 13

Eee EO 15

I. The Award of Clothes Changing Time Is Contrary

to the Plain Meaning of the Collective Bargaining

Exclusion Set Forth in Section 3(0) of the FLSA,

and Frustrates Congress's Purpose in Enacting the

a 15

ll. The Award of "Walk Time” Has No Support in the

FLSA's Statutory Language or Case Law, and Is

Squarely in Conflict With the Tenth Circuit's

Decision in Reich v. IBP, Ine. .....................csessssessereseseeeereeenees —

Il. _IBP’s Reliance on the Exclusion of Union Plants

From the Secretary of Labor's Enforcement Action,

and the Secretary's Subsequent Verification of

IBP’s Compensation Plan, Establish IBP’s Good

Faith as a Matter Of Law .............cc.cccccccseseseesesvevseesneseneneevenneanen cavsees 29

IV. The Balance of the FLSA Award Should Be

Dismissed as De Mimimis ..........................csssseseseeseseeeeeeeeenennne coscees 35

1 15306.0001/921 153.1 u

V. The District Court Also Erred in Its Willfulness

Determinations Under Section 255(a), and Its

Decision to Award Liquidated Damages Under

A REN ESTEE 8 RSDP OU KER Tema ee

VI. seem hete -r sae taste onl

Barred by an Unambiguous Statutory Exemption ....

VII. Plaintiffs Failed to Establish a Violation of

Washington State's Minimum Wage Rate

Requirements, Under the Governing Weekly

NS eT

VIL. Plaintiffs Have No Private Right of Action for

Their State Law Meal and Rest Break Claims ................0.0c0ccc00c00000005

EET TTENY sicnsncesinicinesiantnnsstnuiiaisntestansasinimesaiiiiaudbiicednsieitipniciabisiniiniiitiennnasia

STATEMENT OF RELATED CASES

CERTIFICATE OF COMPLIANCE

TABLE OF AUTHORITIES

Page

CASES

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

RE ENS eS o a ae ER ee 58

Anderson v, Mt. Clemens Pottery Co., 328 U.S

EN ETE a 35

Bankston v. State of Illinois, 60 F.3d 1249 (7th

a er 38

Bamer v. Novato, 17 F.3d 1256 (Sth Cir.) ....0..........ccccccccceceseeeesecescevsesesesneneeses evs 34

Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258

RATE ASN Oe aE 55

Berry v. County of Sonoma, 30 F.3d 1174 (9th

| ____EES a ee : 16

Christensen v. Harris County, 529 U.S. 576 (2000) 0.0... oo. cccccccccccscseseeeeneeeeee cove 21

118

i etal iesiiesesill 48

Cox v, Brookshire Grocery Co., 919 F.2u 354 (Sth

kA EEE ETN coe oO OTN TT ne a ea OOD 38

8 OT 43

Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984)... ..ccccccccceseeseseeenenneens —

Dove v. Coupe, 759 F.2d 167 (D.C. Cir. 1985) 00.0... ccccceceseesesessesnennseeneeees 49, 50

140 Wn.2d

REE LE AE RCN Sree ea oe BC 47

Herman v. RSR Security Services Lid., 172 F.3d

Re ERE een eoana nas 38

64 F.3d 1292

RE REE re oe ne 31

Inniss v. Tandy Corp., 141 Wn.2¢ 517, 7 P.3d 807

el ei lieianmiesll 49, 51

In re KF Dairies, Inc. & Affiliates, 224 F.3d 922

RA REE AAI AE. Se nae OR 55

INS v, Cardoza-Fonseca, 480 U.S. 421 (1987)..0.......c.ccccccescssesesseseseneseneeeneneneereee 22

Lindow v. United States, 738 F.2d 1057 (9th Cir.

i a AE See sees ere 35, 36, 37

Vv 486

A RACE ERENT Terre 58

Vv .

NII, I ssscerstssnsnativensineniiniieenegmehsienetotin 7

McLaughlin v. Richland Shoe Co., 486 U.S. 128

RT eR NTE ERAT er a eT TN TORT Een 38

Nardone v. General Motors, Inc., 207 F. Supp. 336

STII, TI cceceitnsciceitestetahanannhenieaeuanteinemnnsnanneiaiehiess te 18

Peterson v. Hagan, 56 Wn.2d 48, 351 P.2d 127

esse 46

Reich v. IBP, Inc., 820 F. Supp. 1315 (D. Kan.

ei cncinssntesscnasoatetiassktmadehasdepiniianiseialiiicntbiei 25, 28, 40

115386.0001/921 153.1

Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir. 1994). cece 14, 23, 25, 26,

28, 29, 40

Reich v. IBP, Inc., 1996 WL 445072 (D. Kan.

EE SEER ETE SEs a 12, 40

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ooo. ccccccccsecsssesssevesseessvesevesse sce 3]

1991 WL 529542

at ECE Nae ae ee aE: 18

y. County of San Diego, 60 F.3d 1346 (9th

Cir. 1994), supplemented by per curiam

Wn.2d 615, 999 P.2d 602 (2000) ooo... .occccccccccccscssessesecseseeeeeeevereevevenees eT

Steiner v. Mitchel], 350 U.S. 247 (1956)..00..0..ccccccccccccccscecssesneeseesneene 14, 18, 19, 24,

25, 26, 27

ST NL A 16

irli 469 US

Ai IE TA ATi SAAS IES TONER AD! A TS TS 38

1 104 Wa.

App. 583, 13 P.3d 677 (2000) ooo... ceccccccesceceeeseeeenens 54, 55, 56, 57, 58, 59

STATUTES AND COURT RULES

U.S. Const. art. I, § 8, cl. 3 (Commerce Clause) ..0..............cccceceseeseeeeseeseenee 50, 51

OD la a ai a l

115386.0001921 153 1 vi

10a

** * *

[20] To avoid this result, the Distnct Court appears to

have endorsed the reading given to Section 3(0) by Mr. John

Frasier [sic], Acting Administrator of DOL’s Wage and Hour

Division, in an opinion letter issued in December 1997. Like the

District Court, [21] Acting Administrator Frasier opined that

protective "equipment" wom by beef processing plant employees

does not constitute "clothes" under Section 3(0). See Ex. 64 (ER

274-77) (Frasier Letter). The Supreme Court has recently clarified

that an agency's interpretation of a statute contained in an opinion

letter does not warrant the usual deference given to agency

interpretations, because such letters are not adopted after formal

adjudication or rule-making procedures and therefore lack the

force of law. Christensen v. Harris County, 529 U.S. 576, 587-88

(2000).. "[Ijnterpretations contained in formats such as opinion

letters are ‘enutled to on-aule _-butonh to the extent that those

inte . : rsuade."" Id. at 587 (quoting

Skidmore v. ” Swift & Co. 323 US. 134, 140 (1944) (emphasis

added)).

The Frasier letter’s interpretation of Section 3(0) is not

persuasive. To begin, the letter's reading of the term "clothes"

contradicts the plain meaning of the statutory language. The

Acting Administrator that his interpretation of "clothes" did

comport with the word's plain meaning, asserting that "common

usage dictates - that ‘clothes’ refer to apparel, not to protective

safety equipment which is generally wom over such apparel and

may be cumbersome in nature." Ex. 64 (ER 277) (Frasier letter at

2). But (to take just one example from everyday life) a winter coat

is also "generally worn over . . . apparel," and such coats are often

"cumbersome; in [22] nature ....” That the Frasier letter’s

definition of “clothes” would exclude winter coats — and every

other item of “covering for the human body” that is wom over

other appeal and may be cumbersome in nature — should be

lla

sufficient to demonstrate the near —frivolous quality of the letter’s

purported “plain meaning” interpretation of the term “‘clothes.””

The Frasier letter’s interpretation also conflicts with the

Secretary of Labor's interpretation applied in the enforcement

litigation against IBP. The Secretary expressly excluded IBP’s

union plants based on the application of Section 3(0). If the

Secretary believed that protective clothing of the sort at issue here

was not “clothes” under Section 3(0}, why would the Secretary

have excluded IBP’s union plants from the enforcement action

because of Section 3(0)? Plainly, the Secretary did consider the

clothes at issue here to be “clothes” under Section 3(0), as well.

Thus, the Frasier reading of Section 3(0) conflicts with the

Secretary’s reading, and it is well established that “{a]n agency

interpretation . . . which. conflicts with the agency’s earlier

interpretation is ‘entitled to considerably less deference’ than a

consistently held agency view.” JNS v. Cardoza-Fonseca, 480

U.S. 421, 446 n.30 (1987) (quoting Watt v. Alaska, 451 U.S. 259,

273 (1981)).

eee *

l2a

APPENDIX C

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

[Filed June 13, 2002]

Nos. 02-35042; 02-35110

GABRIEL ALVAREZ, RANULFO GUTIERREZ, PEDRO

HERNANDEZ, MARIA MARTINEZ, RAMON MORENO,

ISMAEL RODRIQUEZ, VIRGINIA ALVAREZ

and MARIA CHAVEZ, individually

and as class representatives,

Plaintiffs/Appellees/Cross-Appellants,

IBP, INC., a Delaware corporation,

Defendant/Appellant/Cross-Appellee.

On Appeal from the

United States District Court

For The Eastern District of Washington

BRIEF FOR THE SECRETARY OF LABOR

AS AMICUS CURIAE

EUGENE SCALIA

Solicitor of Labor

STEVEN J. MANDEL

Associate Solicitor

PAUL L. FRIEDEN

Counsel for Appellate Litigation

ELLEN R. EDMOND

Attorney

l3a

TABLE OF CONTENTS

STATEMENT OF INTEREST .

STATEMENT OF ISSUES .

STATEMENT OF THE CASE .

ARGUMENT

I. TIME SPENT IN PRE- AND POST-SHIFT DONNING,

DOFFING, CLEANING, AND STORING OF THE "NON-UNIQUE"

PROTECTIVE CLOTHING WORN BY IBP'S MEATPACKING

EMPLOYEES, AND RELATED TIME SPENT WALKING AND

IS COMPENSABLE "HOURS WORKED" UNDER

WAITING,

THE FLSA AND PORTAL ACT .... -

II. SBCTION 3(o)APPLIES TO ALL OF THE PROTECTIVE

CLOTHING TYPICALLY WORN BY EMPLOYEES IN THE

MEATPACKING a

CONCLUSION

CERTIFICATE OF SERVICE

CERTIFICATE OF COMPLIANCE .

Page

. il

» 38

o« &

. ll

. 22

. 28

. 29

. 30

l4a

TABLE OF AUTHORITIES

Page

Cases:

328 U.S. 680 (1946). . . ' . AZ

) lorie’s Pride C

147 F. Supp.2d 556 (E.D. Tex. 2001), appeal docketed,

No. 01-40477 (Sth Cir. May 8, 2001)...........418

, 24 WH Cases (BNA) 364

Fs § 4 ae 15

Armour & Co. v. Wantock, 323 U.S. 126 (1944) .......19

750 F.2d 47 (8th Cir. 1984),

cert. denied, 471 U.S. 1054 (1985) ....... ss 6 eee

418 F.2d 283 (Sth Cir. 1969),

cert. denied, 397 U.S. 1040 (1970) ..... Se oS o-oo

, No. 02-CV-33

& gS 5 S aa ae ee

, No. 02-CV-1174

(N.D. Ala.) (complaint filed May 9, 2002). .......2

, 30 WH Cases (BNA) 196

2 yy § | % err Tere

$27 F.2d 394 (Sth Cir. 1976) ............... 11,16

No. CV-99-TMP-1612-M (N.D. Ala. Feb. 14, 2001)

(Putnam, Mag. J.) (recommended report adopted

by district court Feb. 4, 2002)......... see « BM

690 F.2d 195 (9th Cir. 19869) ...... 2.2 ee ene 25

Industrial Union Dep't, AFL-CIO v.

American Petroleum Inst., 448 U.S. 607 (1980). ..... 25

lSa l6a

Page

Paue

| le Sateen ton On, )

“gk tf YY Y- Ss PPPs United Transp. Union Local 1745 v.

a "

. ; 178 F.3d 1109 (10th Cir. te ek ee

860 F. Supp. 325 (B.D. Va. 1994) ...........15

nit es 159 F.3d 401 (9th cir. 1998) ......... a ae

650 0.08 2607 Beh Gig. 8000). . 2. 2 ee eo cw co ot BRS .

United States v. Mead, 533 U.S. 218 (2001) .......414

7.28 GWR Cet Gle. BOBS). we cc ttt cee el ll ,

235 P.2d ( 155 F.3d 1051 (9th Cir. 1998). ........ si ee

390 0.8. 260 11986)... a Peo ee ee United States v, Stanley, 483 U.S. 669 (1987)... .. . 25

Wixtz v. Harrell] Packing Co., 16 WH Cases (BNA) 420

Perrin v. United States, 444 U.S. 37 (1979)... ... . 24 (W.D. Tex. Mar. 3, 1964). .........., ooo

No. H-00-420, 2001 WL 850017 (S.D. Tex.

Apr. 23, 2001), aff'd, No. 01-20527 Fair Labor Standards Act,

(Sth Cir. March 7, 2002) (per curiam) ‘ee 39 ©.6.C. 303 oR oem. . ww wt ts a

' i ns <6 bs oe 6 & im cee eete - + + » passin

No. 88-2171-EEO (D. Kan. July 31, 1996). 8 22° SS See oe ee ee ee eee cee eo B

‘ 29 U.S.C. 208, 63 Stat. 920 (1949) . ee 6 6 eee

0 era 3

38 F.3d 1123 (10th Cir. 1994). ... . 19 29 U.S.C. 216(c) . .. 14

Portal-to-Portal Act,

, 1 Wi Cases2d 29 U.S.C. 251 et seq.

(BNA) 879 (N.D. Iowa Dec. 24, 1991). ....... —S

0 5 Pere ree Se eee ee Tee 13

‘ re EE he ee i ee oe a eo ee Oe ‘we sim

495 F.2d 749 (list Cir. 1974) . 16 pas

Code of Federal Regulations:

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ...... 14,19

I ee 17

Steiner v. Mitchell, 350 U.S. 247 (1956) ...... . - passim Pu Mice eeeebeéObececeueever 17

ee os hs ss ea es: eee ow oS ee 17

Tennessee Coal, Iron & R.R. Co. v. SS I Tha i Pe 17

Muscoda Loca] No. 123, 321 U.S. 590 (1944) - 19 9 C.F.R. 416.2 - 416.6 (2000)... . 2... 2 2 eee 17

ih in. «of os & 6 6 606 +s &-e'é ale ded 17

| No. 00-371-P-C, OS eee eee baie a oe anece ae

2002 WL 89399 (D. Me. Jan. 23, 2002)

(Cohen, Mag. J.), Scenes Cavesas

(affirmed Feb. 20, 2002) .....-. , - 15

iii

17a

Code of Federal Regulations (continued) :

NNN NN NH DH WH KH WH WH

wovwovwovwvowowowowow wo wo WO

aAnaaaaaAAaAaaAaAA

i Res Ries Bie Bis ac Bec Bie Bie Boas es

dada aa aa ea

Miscellaneous :

Rule 29, Federal Rules of Appellate Procedure. . .

12 Fed. REg. 7655 (Nov. 18, 1947)... se ee ee

93 Cong. Rec. 2297 (1947) . © 6 ee eee ee ts

93 Cong. Rec. 4269 (statement of Senator Wiley) .

95 Cong. Rec. H11210 (daily ed. Aug. 10, 1949)

(statement of Rep. Herter)... .-- ++ e+e sees

95 Cong. Rec. $14875 (Oct. 18, 1949). . - © + © s+

Hearings before a Subcomm. of the Senate Comm.

Bist Cong., Ist Sess. (1949)... - ss ss sees

s. Rep. No. 48 (1947) . 2 6 6 eee eee es

S. Rep. No. 640 (1949),

reprinted in 1949 U.S.C.C.A.N. a ee

§8.11.B

(Ellen C. Kearns and Monica Gallagher eds. 1999) . . .

Webster's New World Dictionary (2d college ed. 1982). .

i! «6 6 «6 * » ¢ = 6s 6 6:¢.5 a: s/<

So ee ae oe ee or he a ot ey

i. « « « «¢ ¢ se eS 66 6 » Sa a 6

fae ase ee as Oe Ie A oe

Tn! «§ « « 6 «6 6s 8 6 6 © 6 8 8 SS

RO ee ee ee

OE a es a ee ee ee ae

Dn + « » «6 6.6 6s 606% 6 6s & 84

Pe. geen ese eees 689 8

1910.1080 Rep. A... eee ee ee es

9,11,14,16

18a

*“*# * *

[13] The Secretary has consistently interpreted the

Portal Act to provide that changing clothes is compensable as

an integral part of the employee’s principal activity if the

principal activity cannot be performed without putting on and

taking off the clothes [14] on the employer’s premises, i.e., if

it is not merely a “convenience” to the employee. See 29

C.F.R. 790.8(c) (first promulgated at 12 Fed. Reg. 7655

(Nov. 18, 1947)).° The interpretative regulations further

explain that “[sJuch a situation may exist where the changing

of clothes on the employer’s premises is required by law, by

rules of the employer, or by the nature of the work.” /d. at

790.8(c) n.65. See also 29 C.F.R. 790.7(g) n.49 (“Washing

up after work, like the changing of clothes, may in certain

situations be so directly related to the specific work the

employee is employed to perform that it would be regarded

as an integral part of the employee’s principal activity.”).

The Supreme Court in Steiner specifically upheld these

regulations, noting that they were ratified by Congress in

1949 when former § 16(c) of the FLSA was enacted. See

250 U.S. at 255 nn.8 and 9. Section 16(c) provided that

existing Wage-Hour regulations or interpretations, not

inconsistent with the amendments, remained in effect. See

Note following 29 U.S.C. 208, 63 Stat. 920 (1949) (footnote

omitted).

*“** *

* Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), holds that the Secretary's

interpretative regulations “constitute a body of experience and informed judgment

to which courts and litigants may properly resort for guidance.” See also United

States v. Mead, $33 U.S. 218, 227-28 (2001).

19a

APPENDIX D

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

[Filed July 22, 2002]

CA Nos. 02-35042 & 02-35110

GABRIEL ALVAREZ, RANULFO GUTIERREZ,

PEDRO HERNANDEZ, MARIA MARTINEZ, RAMON

MORENO, ISMAEL RODRIQUEZ, VIRGINIA

ALVAREZ and MARIA CHAVEZ, individually

and as class representatives,

Plaintiffs/Appellees/Cross-Appellants,

IBP, INC., a Delaware corporation,

Defendant/Appellant/Cross-Appellee.

Cross-Appeal from the

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

(District Court No. CT-98-5005-RHW)

PLAINTIFFS/APPELLEES/

CROSS-APPELLANTS’ BRIEF

William Rutzick*

Kathryn Goater David Mark

SCHROETER, GOLDMARK LAW OFFICE OF

& BENDER DAVID MARK

III.

IV.

20a

TABLE OF CONTENTS

2s Page

STATEMENT OF JURISDICTION ............--:c+:ssessesesnseesenssnenensnnssnsenenesnrsnssnes l

STATEMENT OF ISSUES ............:-:-:cscscesssssssessesserensenenenssncnsossnsensenesseseese: oes l

A. IBP’s Federal Issue ..............-..s.sccceececsessseesesnensnnenersnerernsneenenensncnnene ens l

B. _IBP’s State Issues ..............-.sccsesseesereneressesesenenenanecsnnenensnsnnnsnenennnnens uaa

C. Plaintiffs’ Cross Appeal..............-:sessvecsesssneennssnssnssnssnsensennncennessnnenniasees 2

STATEMENT OF THE CASE.........-.-:-::s:+-:s:+sussessesnsnsnnsnsnnensnsneennanennennannenes 3

STATEMENT OF FACTS ........::e:ssessessessssessnsenesnennsnnsnnsnsnneneensnnesnnannnenensesnas 5

A. _ Pre- and Post-Production Work..........-..-ssssssnsessessesneneennenennennenensens 5

B. Meal Break Work..........-....cscsssssesesessseesnessesnennssnansnnsnsnsnnnnensennennanees oo |

C. Amount of Unpaid Work .........2-...-cssessssnescsnsrnesnnssneeneennnnnnnnannnnensne seess 8

D. Department of Labor (“DOL”) Litigation ...........-...-+----ssseeeeereem cesses 9

E. _DLI Policy and Enforcement Off ....-ssesseeree siicacuibiniideinnimiaumnennaeniniis 10

F. _ IBP Knowledge, Willfulness and Lack of Good Faith............0..00. + 10

SUMMARY OF ARGUMENT ............-.--+ eveseeenannnnssunneneeeennnnenanesnnet:tt 12

ARGUMENT. .......-:cosssoessosscosssessecsssssnssnenscneessonsssneennsnensensensnssnsensenucannnsssnestss 15

A. _ This District Court Correctly Held Donning And Doffing

Of Safety Equipment Was Not Covered By FLSA §3(0),

29 U.S.C. §203(0). ..----os-sssveecssnesenneesnessnvnssrsneeenessnnennncanssanarensansensness we AS

B. The District Court Correctly Awarded Plaintiffs Walk

Time Under The FLSA ...........:-s-+-:s+-+++ssssesnesnsessensnsnsnenensnannansnnensns sess

2la

Table of Contents, continued

C. The District Court Did Not Commit Clear Error In

Finding That IBP Did Not Prove Good Faith Reliance..................... 25

D. _IBP’s “De Minimis” Argument Is Addressed To The

Wrong Court And Is Both Factually And Legally Unsound............. 27

E. The District Court Did Not Commit Clear Error In Finding

Mop a Violation” By IBP Under 29 U.S.C. §255(a) And

warding Liquidated Damages Pursuant To 29 U.S.C.

onvend EE ee See 29

F. PETRI TI

Is Not Properly Before This Court and Is Wrong Substantively......... 33

1. This Court Should Not Review The Denial of the Pretrial

Summary Judgment Under the Facts Present Here................... 33

2. The District Court Properly Considered DLI's Interpretation

of the Agricultural Exemption and Properly Denied IBP’s

Summary Judgment Moton...................-..--cesesesssseseseseesesnee =

3. The Agricultural Exemption Statute Is Ambiguous................. 38

G. The District Court Did Not Err In Following DLI’s Interpretation

and SPEEA In Using A “Per Hour Worked Basis” For Hourly Workers

Se Ue atinhestiesesciasiepicatinrrnteentaictictsintataltaianincenecrnitanaiati 44

H. The District Court Correctly Held Employees Have A Claim for

WAC 296-126-092 Rest and Meal Break Violations........................ 48

I. The District Court Erroneously Held That Washington Law

Allows Uncompensated Interrupted or Shortened Meal Breaks........ 50

J. The District Court Erred By Rejecting “Actual” Work Time

and Limiting Plaintiffs to Time-Studied Work Segments

EE TE 57

K. The Court Erred by Striking Four Declarations ......................c000-0-0 61

TE», EUTUEIIUEETIIII csdarestiiieeeiineseiiinnesieeeianianta itech eatin acirateaie 62

22a

TABLE OF AUTHORITIES

Cases

Page

Amos v. United States, 13 Ct.Cl. 442, 28 Wage & Hour Cases

| PTET TT RETA aE .24

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) ......cccccssssssssseeeeee oo 60

Arcadi v. Nestle Corp,, 38 F.3d 672 (2 Cir. 1994) ...........cssssssseennunsessesssssnneeeeeee 20

Arias v. U.S. Service Industries, Inc,, 80 F.3d 509 (D.C. Cir. 1996) .......c.seee 30

Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981) .........-..ccsceve. 16

jes, 52 Wn.2d 780,

STITT :ctepresidnniiiiapetsenhasetaaeiemeipuienitdniniaenaneimanantainetttes 39

Brennan v. Smoke-Craft, Inc,, 530 F.2d 843 (9" Cir. 1976) .....cv-cvooosesensenseeereen 19

Brock v. Seto, 790 F.2d 1446 (9* Cir. 1986).......s.cc-sssssssseseesesnnnneeennnnnsensnsnnnees 60, 61

119 Wn.2d 504,

i) | ER 38, 42

Cockle v, Dep’t of Labor & Indus., 142 Wn.2d 801, 16 P.3d 583 (200))............ 37

118 Wn.2d 801,

SL? TT 33, 38

Cramer v. Consolidated Freightways, Inc,, 255 F.3d 683 (9" Cir. 2001)........... 50

146 Wn.2¢ 1,

VO yy———————————————————— 37

Dole v. Enduro Plumbing, Inc., 30 Wage & Hour Cases

TTY SY ar 22

Donovan v, New Floridian Hotel, Inc., 676 F.2d 468 (11° Cir. 1979)..........00000» 58

Dove v. Coupe, 759 F.2d 167 (D.C. Cir. 1985) ....co.oe-ssssssssneesnsnnsnnennanseneensen 44, 45

23a

Table of Authorities, continued

140 Wn.2d 291,

Ae 14, 36, 42, 45

Elwell v. University Hospitals Home Care Services, 276 F.3d 832

| _____EREEESTR a- S 31

Fire Fighters Assoc. v. Everett, 146 Wn.2d 29, 42 P.3d 1265 Ee 36

Fox v, Tyson Foods, Inc., No. CV-99-TMP-1612-M

i 17. 40

, 85 Wn.2d 441,

a a i ASS ee occ ce 38

Hart v. Peoples Nat’| Bank, 91 Wn.2d 197, 588 P.2d 204 ( CT 38, 39. 42

Herman v, RSR Security Services Lid, 172 F.3d 132 (2™ Cir. 1999)... 30

Inniss v. Tandy Comp., 141 Wn.2d 517, 7 P.3d 807 (2000) .ooe-cccccseeesooooe 35, 36, 48

INS y, Cardoza-Fonseca, 480 U.S. 421 (1987) ......c.cccccccscssscesssessssseessereseessssseccese 20

Lindow v, United States, 738 F.2d 1057 (9 Cir. 1984)... cccccccccccssssssssssoe 27, 28

Lingle v, Norge Diy, of Magic Chef. Inc,, 486 U.S. 399 (1988)... 49

Livadas v, Bradshaw, 512 U.S. 107 (1994) ooo. cccccccccccccccssssesseessssessssesssesseserce 50

Local 246 Utility Workers v. Southern Cal. Edison, 83 F.3d 292

TEER A eS 32

antain dation ten, 833 F.2d 1352 (9" Cir. 1987)...ccccccsceeeeeeee 34

Martin y. Waldbaum, Inc., 132 Lab. Cases(CCH) 1992 WL 314898

aN I itiesecicaececninarirtaiternrtncrceniceceeenensiictitttaintanabinctainai 56

Mauser v, Raytheon Co, Pension Plan, 239 F.3d 5i (1" Cir. 2001) ...ccccceomee 34

24a

Table of Authorit —_

Nardone v. General Motors, Inc,, 207 F. Supp. 336 (D.N.J. 1962) .......ccecsseseeee 18

Perrin v. United States, 444 U.S. 37 (1970) .......cc..ccessssssoseensssesnsnnsessenssnnnessesuneas 19

Reich v. Dept, of Conservation, 28 F.3d 1076 (11 Cir. 1994) ......ccsssssssssseesssssesen 59

Reich v. IBP, 820 F.Supp. 1315 (D.Kan. 1993), aff'd 38 F.3d 1123 |

(90 ths Cle, 190 0)...-.-coxcoressmeeneoonsereentenstenmnann passim

ree ane Mettler v IBP. 127 F-34959 (100 Ci 1997) neneunn9,23

Salve Regina College v. Russell, 499 U.S. 225 (1991)......sssvssssssssssssssssssnsnssseses 51

Saunders v. John Morrell & Co, | Wage & Hour Cases (BNA) 2d 885

TO eee 10, 29, 31

Saunders v. John Morrell & Co., 1991 W.L. 529542 (N.D. lowa 1991) .......0-« 18

Se reais, 60F34 1346 (Cr 1998) Mm

Skipper v. Superior Dairies, Inc., 512 F.2d 409 (5 Cir. 1975) ......oeesssssssesseen 58.59

SPEEA v. Boeing, 139 Wn.2d 824, 991 P.2d 1126 (2000) ......---:.00 14, 44, 45, 46

State v. Van Woerden, 93 Wn.App. 110, 967 P.2d. 14 (1998)......cccsssssssssseneenen 41

Steiner v. Mitchell, 350 U.S. 247 (1956) .........ccccssessesnesvesnnsnennenenansansnnnnannnens passim

Teamsters v. United States, 431 U.S. 324 (1977) ....cscssosccnssssnseeeeeennsnnsnnnnnnennnes 60

Tennessee Coal, Iron & RR. Co, v, Muscoda Local 123, 321 U.S. 590

Timberline Air Serv.. Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305,

GB4 P.2d 920 (1994) .neeancaroocncaccoscccsnnssssscessssonessosesssssstnusenasteseesttteeeeeesseessesseeseeines 37

ic, 23 Wage & Hour Cases (BNA) 256 ii

(W.D. Tex. 1976) .......ccecssssesssesseesesnesneessneessnsenssnnensnnssnsssnssnssnsasenssnsnnsnnensamanennsetins:

25a

Table of Authorities, continued

UTU Local 1745 v, City of Albuquerque, 178 F.3d 1109 (10" Cir. 1999)... 23

Webster v. Public School Employees, 247 F.3d 910 (9" Cir. 2001)... 45

Weeks v. Chief of State Patrol, 96 Wn.2d 893, 639 P.2d 732 (1982).............. 50

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9 Cir. 1999)... 40

, 104 Wn.App. 583,

13 P.3d 677 (2000), affd_Wn2d , P3d_—,

2002 WL 1584418 (July 18, CS passim

Other Authorities

United States Code

29 U.S.C. §203(0) (Fair Labor Standards Act)... ccccccccsessceeeeccocce passim

CO Es 41

SS __ 44, 45

SSE 29

EE 12, 15, 22

A 12, 22

ee. 12

Ls 1, 2, 25

SSS 1, 25

I 12, 29

Code of Federal

eee. 40

eee 4!

TS 59

eee §2

ee 58

SA 22, 58

A 57

ES | 19

26a

** *& *

{19} The June 2002 opinion letter (Appendix A to

Amicus Brief) is the work of a new Administrator

appointed by a new administration. It squarely conflicts

with [20] the 1997 and 2001 opinion letters issued by prior

Administrators in a prior administration. (Exhibit 64, ER

275-277; CR 639, SER 74) Both sides now have an

opinion letter. Under JNS v. Cardoza-Fonseca, 480 U.S.

421, 446 n.30 (1987), the net effect of these conflicting

interpretations is to cancel them out as useful sources of

statutory interpretation apart from their own persuasive

force. The new interpretation is of little, if any, persuasive

force for the reasons discussed above. (Footnote omitted.)

*_** *

27a

APPENDIX E

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

[Filed October 4, 2002]

CA Nos. 02-35042 & 02-35110

GABRIEL ALVAREZ, et al., individually

and as class representatives,

Plaintiffs/Appellees/Cross-Appellants,

Vv.

IBP, INC.,

Defendant/Appellant/Cross-Appellee.

CROSS-APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT OF

WASHINGTON

(Hon. Robert H. Whaley)

No. CT-98-5005-RHW

IBP, INC."S REPLY BRIEF ON APPEAL AND ANSWERING

BRIEF ON CROSS-APPEAL

Michael B. King William A. Norris

Barbara J. Duffy Joel M. Cohn

Douglas E. Smith Alison L. Gray

Nancy W. Anderson AKIN GRUMP STRAUSS

LANE POWELL SPEARS HAUER & FELD LLP

LUBERSKY LLP

28a

Table of Contents

1 THE WITHDRAWAL. OF THE 1997 DOL OPINION

LETTER LEAVES PLAINTIFFS WITH NO AUTHORITY

IN SUPPORT OF THEIR POSITION THAT THE SANITARY AND

PROTECTIVE ITEMS AT ISSUE ARE NOT “CLOTHES” WITHIN

THE MEANING OF SECTION 3(0) OF THE FLSA ................0-ccecccee

A. Section 3(0) Plainly Applies To The Sanitary And Protective

Get BB ccc cenemeeme

B. Voluntary Partial Payment Does Not Negate The

Existence Of A Custom Or Practice Of Non-Compensation

0. WALK TIME IS EXCLUDED FROM COMPENSATION UNDER

SECTION 254(aX1) OF THE PORTAL-TO-PORTAL ACT .................

A. Application Of Section (0) To The Clothes Changing Activities

At Issue Requires Reversal Of The District Court’s Walking

B. ‘The District Court And Plaintiffs Misconstrue The Relationship

Between The FLSA And The Portal Act, And The Differing

Standards Applicable To Sections 254(aX1) And 254(a)(2) Of

DR Peat AGB accccnccccssesccsssesesessrsscssrecsnssssssnesssnnsssssssssssscssssscsecsocosoes

IV. THE COURT SHOULD VACATE THE BALANCE OF THE

DISTRICT COURT’S FLSA AWARD BECAUSE SUCH TIME

BB TE REGIS .....ccccccccccccccccccsecscccesesssccssessscoscssssossssnssssseoosessoossossoeossees

V. THE DISTRICT COURT ERRED IN FINDING WILLFULNESS

AND AWARDING LIQUIDATED DAMAGES .......0.0.0......0ccccseeeeeeeroe

VI. THE EXPRESS EXCLUSIONS UNDER SECTION 3(0) OF

THE FLSA AND SECTION 254(a)1) OF THE PORTAL ACT

PREEMPT ANY CONFLICTING STATE LAW 0000000... cccceccceseeenenesees

29a

Vil. PLAINTIFFS ARE STATUTORILY EXEMPT FROM WASHINGTON’S

OVERTIME WAGE LAWS 0.0.0... cccccscccscosssssssssssssssttesrsestesseeeees eos... 42

A. _IBP’s Appeal Of The Agricultural Exemption Defense Is

Properly Before This Coutt .............0.cccccccssssessssssvesseveeeeeeee eee... 42

B. The Plain Language Of The Statutory Exemption For Agricultural

Applies To Bar Plaintiffs’ Claims... 44

1. The term “agricultural commodity” is not made

ambiguous by reference to the FLSA 0000 46

2. The terms packing, packaging, grading, storing or

delivering” also have well accepted, ordinary meanings,

which encompass the balance of the work at issue here... 50

3. The term “commercial processing” is not made ambiguous

by the omission of a preposition in subsection (iii) of the

I hccereereicrncsscrnnsteneerteenascnnstncsnsstcnssnnscnie 51

VI. THE DISTRICT COURT ERRED WHEN IT MEASURED WMWA

COMPLIANCE ON AN HOURLY RATHER THAN ON A WEEKLY

na resienecieseeateiartataeeaeat cates atti 54

A. The Omission Of Language Contained In Section 206 Of The

FLSA From The WMWA Does Not Suggest The Washington

Legislature Intended To Apply An Hourly Standard For

Compliance Under The WMWA .00.00000.0.0...cccccccccccsscssesosseseeseeseccose oo 54

B. SPEEA v. Boeing Co. Does Not Support Plaintiffs’ Position ....... ... 55

C. The Mowat Declaration Is Entitled To No Deference................... a.)

D. The Workweek Standard Is Consistent With Washington's Only

Regulations Addressing WMWA Compliance o.oo 56

IX. PLAINTIFFS HAVE NO VIABLE REST BREAK CLAIM IF THE

COURT RULES IN IBP’S FAVOR ON SECTIONS 3(c) AND

254(a)(1) AND THE DE MINIMIS RULE 000.0000... .ccccccocsossessvvsveeeesesseven 57

X. THE DISTRICT COURT PROPERLY REJECTED PLAINTIFFS’

PROPOSED CALCULATION OF MEAL PERIOD DAMAGES........... 58

30a

XI. THE DISTRICT COURT CORRECTLY DETERMINED THAT

ANY LIABILITY SHOULD BE CALCULATED BASED ON

REASONABLE VERSUS ACTUAL TIME ............-.:-.:c0::s:srseeereserennees

CONCLUSION ....cccccesosescoscsssssssssnsnssnessssnsenesnensonersnennenssonansenssnsnnenssnnnanaessanerssees

3la

Table of Authonties

Cases Page(s)

Vv ,’

I 66

ing v. V ,

ao 4 ee . 38

Amos v. United States, 13 Cl. Ct. 442 (1987) ooo... ccccccccsssssssensnennsnsvenennnnnnnvnes 24, 66

y ,

TTT ED 30, 36, 40, 66, 68

147 F. Supp. 2d 556 (E.D. Tex. 2001),

aff'd, No. 01-40477, 2002 WL 1396949 (Sth Cir. 2002) .............. 9, 23,31

cece entsteneneemassamnanereemenatenmnmenness 14

vy di

__ F.3d _, No. 0! '6402, 2002 WL 31018371

ee 7, 18, 40, 41

SF. Seapp. 26 1161 CD. Ram. 1996) .2..ncccnscssscssssssvssvssscsesesseressessees auume 3]

ty Ethi

125 F. Supp. 2d 192 (N.D. Tex. 2000), aff'd, 269 F.3d 477 (Sth

ee cnncerennccccnteerensnmessnssanssssemnnemestastsennerneeesemnsesnessenssssnenestase 911

te ee Fe ccnnenensnnssnessensnsnsesarncsernsemnsesccceestnesssnccnscseesse 63

Bradley v. Harris Research, Inc., 275 F.3d 884 (9th Cir. 2001).........cccvccseesveneenees 39

OE 63

32a

pe ee 67

) 1 ing,

Oe ee Si riccicnniemnntemnnmmeneenmeme 45

Vv. o,

314 F. Supp. 386 (D.D.C. 1970),

OEE, GED P28 UTED GAL... Cis. UB TED wecccerencccranssvereccesczssecsscaccccsnscssesess 3l

Vv. ,

| 8

CO 4, 46, 52, 56

Vv. .

Fe ie Fe CAPRI, CD ccrctctscnnecnsnsceseseseenssesescessenencreresnsnasensnensssacens 61

Vv 7

30 Wage & Hour Cas. (BNA) 196 (C.D. Cal. 1990) ..........ccccesessees 23,24

‘ _ ’

676 F.2d 468 (1 Ltda Cie. 1962) ...........ccceccceccccsscrcsssscressseresesereneserssnsssosess 67

TSD F.2d 167 (D.C. Cit. 196S)......n...cccccccscrcscrcscsvsesscsessccessensssesenaes 4, 54, 55

v. Alli

996 P.2d SEZ (Wass. 2000) ...........:.ceccccscecrserssssesssssrerseeenenessnsessesnenes 46. 48

v ,

227 F.2d 133 (4th Cir. 195S)............cccscssssscsserenenesessesesssenessnsnnsnsnsnenenens 31

y. Uni

No. 01-15963, 2002 WL 1941436 (9th Cir. Aug. 23, 2002)............0000: 39

i v

373 U.S. 132 (19GB).....ccecececcerscosseccssssssscsssvseesesssessensnes senssnsssesnorssssosenes 38

33a

No. CV-99-TMP-1612M (N.D. Ala. Feb. 14, 2001).......cccccccssseessssseecoon 10

ET ae a ee 29

= aS

82 F. Supp. 535, appeal dismissed,

gk 11,15

a 42

, J

177 F.2d 187 (4th Cir. 1949) .....0..cccccsccccscsssescsssscessssesssesssveeecessuvensesssees 31

v =

Civ. No. 00-1-2 DJS/RLP (D.N.M. Jan. 16, 2002) .......ccccccccscceseoeessseee 10:

Hellmers v. Town of Vestal,

969 F. Supp. 837 (N.D.N.Y. 1997) ........scccccscccccssscsccccssssccceveseesseesesensees . 66

Ee 63

Herman vy. IBP, Inc.,

No. 98-CV-2163-JWL (D. Kan., filed April 1998) ..0..0.0.0..00cccccccooon 27, 29

SE ae Oe a a a

RR I eT Eve 38

v .

365 F. Supp. 1193 (W.D. La. 1973) ....ccccccscccccsscosssssssccecsescsssesessssneeseesenes 31

A A I a ee 14

34a 35a

No. 88-2171-EEO (D. Kan. July 31, 1996) ..00...--ccccccccccccccssssessseoeeeeeeee 29

v ° v

7 P.3d 807 (Wash. 2000) .....cccccccccsssssvsceeseeesesssssnsnsnenenees 30, 48, 54, 55, 57 144 F.3d 1329 (10th Cir. 1998) ......-cccccccccsesessssssocsssesessossssssssscecoooee 31, 34

ich v

27 Wage & Hour Cas. (BNA) 1704 (Cl. Ct. Feb. 11, 1987)...... 0.0.0 3 No. 4:93CV204, 1995 WL 1765643 (E.D. Tex. March 2, 1995) .......... 10

‘ ich v. '

GE . 54 a RC A 63

oy 7 31,34 Ly

T3B 28 YOST (Gila Cir. 1906) -.nnnnnnnnessccvsesncnseceerssnseesernnnsvcccnsnsssscssee 3 TTA LAE LT a NT ARTE 3, 43

Locricchio v. Legal Servs. Corp. . e Riggs v. United States,

I CO ceeds 30 Wage & Hour Cas. (BNA) 84 (Ci. Ct. Oct. 23, 1990) cecevoocoooee 1

US I I eaeepiisiaiboniin 23,31 v.

a ae I 63

CEA 31

991 P.2d 1126 (Wass. 2000) .......ccccccscccecsssseecececessvsseseeeesssuseeeeeseesenee 4,55

ee TN 22, 23 .

No. 40426-1-I, 1998 Wash. App. LEXIS 1439

v. ESS A RT ETT 55

207 F. Sapp. 336 (WAND. 1962) uaccnesnncncccennscsnscssnsnsossnseesennee 7,8, 9.31 ( App )

as & He “s 1S ergy Res. Conse a rT" No. C88-4143, 1991 WL 529542 (N.D. lowa Dec. 24, 1991)........ 7, 8, 23

Skidmore v, Swift & C

143 Lab. Cas. (CCH) 4 34,262, 2001 WL 850017 (S.D. Tex. Apr. 323 US. 134 (1944) pecccccccococesocoenococcoocsossooosoosoccoccoccoscocooooooocsoosooscoososooecce _ x

23, 2001), aff'd, No. 01-20527, 2002 WL 432986 (Sth Cir. Mar. 7, ae ay

a sieiaenminianatl

, a 67

820 F. Supp. 1315 (D. Kan. 1993), | te ex rel. Evergreen Freedom Found shington Educ. As

aff'd, 38 F.3d 1123 (10th Cir. 1994) .........ssosceceeneeeeeeseneeennnnnnnnnnnneen passim SN RNR 46

\ P

Vv.

Willi

Pree r titties

PPrrrrrrrrrrrrrt tt ttt

36a

l v. '

TE TE er ee 6!

ee ety, Sea 48

No. 70746-4, 2002 Wash. LEXIS 594 (Wash. Sept. 19, 2002).......--- 44

LAL STOO MORAL AAD E 20, 23

No. 00-371-P-C, 2002 WL 89399 (D. Me. Jan. 23, 2002).....ccsccseonee- 23

- ; |

96 F. Supp. 2d 460 (E.D. Pa. 2000),

ge 13

45 v.Ci

178 F.3d 1109 (Oth Cir, 1999) .ccccncccsnccoecseesnesssesesreneosenescernsneenes 22

a. iW ,

v .

189 F.3d 1338 (Fed. Cir. 1999), aff_d, No. 01-1388,

2002 WL 398631 (D. Del. June 29, 2000) ..ccsccsccssocsenseeenesseeneeenee 43

v. Ci .

23 Wage & Hour Cas. (BNA) 256 (W.D. Tex. 1976)...ccccsnnnnernre 67

. 43

165 F.3d 1185 (Odin Cir, 1999) on incacecsncsncceereneenresneeneennessunoesz

- 13,14

247 F. Supp. 433 (E.D. Tenn. 1965) .cccsccsvornsveresenseneeeneene

. : 53, 58, 63

50 P.3d 256 (2002) $8.

37a

“ke *

[8] Plaintiffs seek to diminish the importance of the

June 6, 2002 letter by asserting “[b]oth sides now have an

opinion letter.” Pitfs’ br. at 20. However, this assertion

ignores that the eartier letters have been withdrawn, and

were never entitled to any deference even before the June

6, 2002 letter. The earlier letters represented a sharp

departure from prior DOL practice and case law rejecting

any distinction under section 3(0) between “clothing” and

so-called “safety equipment.” See Appendix A (June 6,

2002 DOL Op. Letter at 1) (“[T]Jhe construction of section

3(0) enunciated in the December 3, 1997 Opinion Letter

had never previously been put forward by the

Administrator;” numerous DOL officials historically

applied section 3(0) to exclude “from hours worked the

time spent by employees putting on, taking off and cleaning

protective equipment.”); Saunders, supra. The withdrawn

letters are also inconsistent with the plain and unambiguous

Statutory language, and conflict with prior case law. For

these reasons, they are not entitled to any deference. See

Christensen v. Harris County, 529 U.S. 576, 587-88

(2000); Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944).

Plaintiffs’ continued reliance on the December 1997

opinion letter therefore is completely misplaced.

~“** *

38a

APPENDIX F

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

[Filed August 25, 2003]

CA Nos. 02-35042 & 02-35110

GABRIEL ALVAREZ, et al., individually and as class

representatives,

Plaintiffs/Appellees/Cross-Appellants,

IBP, INC.,

Defendant/Appellant/Cross-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

WASHINGTON

HON. ROBERT H. WHALEY, JUDGE

CASE NO. CT-98-5005-RHW

PETITION FOR REHEARING AND PETITION FOR

REHEARING EN BANC

Wilham A. Norns

Joel M. Cohn

Alison L. Gray

AKIN GRUMP STRAUSS

HAUER & FELD LLP

39a

TABLE OF CONTENTS

1. | THE PANEL’S INTERPRETATION OF THE PORTAL ACT

IS INCONSISTENT WITH THE ACT'S CONGRESSIONAL

PURPOSE AND SUPREME COURT LAW, AND DIRECTLY

CONFLICTS WITH RECENT OPINIONS OF THE TENTH

AND FIRST CIRCUITS. . snassnneestueusennSDennnennenenDNnnenens 3

A. A Glut of Lawsuits Seeking Compensation for “Walking

a mae abated

the Portal Act............cccsccseesoe 3

B. The Panel Opinion Misreads Steiner by Applying Its

Holding Interpreting Section 4(a2) to Walking Time

a _———————————————————————EEE 5

C. The Panel Opinion Creates an Inter-Circuit Conflict with

EE 7

Il. THE PANEL’S INTERPRETATION OF SECTION 3(0)

CONFLICTS WITH THE CONGRESSIONAL PURPOSE OF

AND WITH FEDERAL CASE LA W..0.0.........ccccccscseesescenneenennnnnnnnes 10

A. The Panel Erred in Failing to Give Any Deference to the

DOL’s Interpretation of Section 3(0). ...........--.-.-s--eeee- 10

B. The Panel's Reading of Section 3(0) Is Clear Error. ............. 16

Ill. THE PANEL SHOULD CERTIFY THE STATE LAW

QUESTIONS TO THE WASHINGTON SUPREME COURT.

ALTERNATIVELY, THE PANEL SHOULD GRANT

0, 21

CERTIFICATE OF COMPLIANCE ......2...0-0--0-cs-ssvesvessssneennsensnneessennennsosensanenses 22

O71 738.602" LOS ANGELES 64/538 vi !

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946)... 3

Anderson v. Pilgrim's Pride Corp.

147 F. Supp. 2d 556 (E.D. Tex. pee terrensesntennsinitteeieetahinenteeeeneessiie 16

Bateman v. Ford Motor Co.,

76 F. Supp. 178 (ED. Mich. 1948) 00 ccs ssssesmnsseseseseseeeeeesseees 3

Bejil v. Ethicon, Inc.,

269 F.3d 477 (Sth Cir. 2001) ooo ococcccccccceeceeeeeeeeeee. 2, 10, 16

Hoover v. Wyandotte Chem. Corp.,

i 10

INS v. Cardoza-Fonseca,

eee 12

Lindow v. United States,

738 F.2d 1057 (9th Cir. 1984) i oe 6

McComb v Swanson & Sons,

77 F. Supp. 716 (D. Neb. 1948) —_—

McCoy v. MIT,

950 F.2d 13 (1st Cir. 1991) —_—

Nardone v. General Motors, Inc.,

Ee 16

Pronsolino v. Nastri,

291 F.3d 1123 (9th Cir. 2002) 14

Rainsong Co. v. Federal Energy Reg Comm'n,

106 F.3d 269 (9th Cir. 1997) 0, 12

VTE.802" LOS ANGELES 641538 wi u

4la

Reich v. IBP_inc.,

ng Oe passim

Rendleman v. Shalala,

Oe Ce Ce ecetccsenencennennncmnemmnmmeneeinntemmeenss 12

Rust v. Sullivan,

Sanchez-Trujillo v. INS,

801 F.2d 1571 (9th Cir. 1986)..............

Saunders v. John Morrell & Co.,

1 Wage & Hour Cas. 2d (BNA) 879

(N_D. lowa 1991) asi

See eee eee eee eeeeeneee

Smiley v. Citibank (S.D.), N.A.,

FF > CD Cr crtenrsessamnanseneeressscesnrmensessesnnmemmnenmmmnennensmmnnnemnnepennnes

Steiner v Mitchell,

NRT lh ol eenas OE, passim

Thomas Jefferson Univ. v. Shalala,

tt TT IEE a 11, 12

Tum v. Barber Foods, Inc.,

331 F.3d ! (1st Cir. 2003)

Turner v. City of Philadelphia,

96 F. Supp. 2d 460 (E.D. Pa. 2000),

aff d, 262 F.3d 222 (3rd Cir. 2001) eeccceeeoe

UnionBanCal Corp. v. CIR,

Wards Cove Packing Corp. v. Nat'l Marine Fisheries Serv.,

307 F.3d 1214 (9th Cir. 2002) oo. ocsenconnnneeen

STATUTES

EE ee ee a ee

SOI... <:cecsncinttnnistsiamasinsaataitititimeaiiisaieitasiiitiaiia

1,6, 7,8

42a

[11] The panel was required to treat the DOL's

interpretation of the statute with "substantial deference."

Thomas Jefferson Univ. v. Shalala, 512 US. 504, 512

(1994). As the Supreme Court has explained, [the court's]

task is not to decide which among several competing

interpretations best serves the regulatory purpose. Rather,

the agency's interpretation must be given controlling weight

unless it is plainly erroneous or inconsistent with the

regulation. . .." Id. (citations and quotations omitted).

Substantial deference-is especially warranted when, as

here, [12] “the regulation concerns ‘a complex and highly

technical regulatory program,’ in which the identification

and classification of relevant ‘criteria necessarily require

significant expertise and entail the exercise of jud t

grounded in policy concerns. " Id. (citations omitted).

The panel did not cite Thomas Jefferson or accord the

DOL's interpretation any deference, let alone "substantial"

deference. Instead, it dismissed the DOL's position on the

ground the agency took a different position in a 1997 letter that,

has since been withdrawn. The panel adopted this 1997

Position - one the DOL characterizes as contrary to the agency's

otherwise consistent interpretation of section 3(0) (Addendum

A at 1) - in reliance on a single case, INS v. Cardoza-

° This Court has repeatedly upheld the rule that an

“agency's interpretation of regulations it is charged with

administering is entitled to a high degree of deference and

will be upheld as long as it is not plainly erroneous or

inconsistent with the regulation.” E.g., Wards Cove

Packing Corp. v. Nat'l Marine Fisheries Serv., 307 F.3d

1214,1218 (9th Cir. 2002); Rainsong Co. v. Federal Energy

Reg. Comm ‘'n., 106 F.3d 269,272 (9th Cir. 1997);

Rendleman v. Shalala, 21 F.3d 957, 961 (9th Cir. 1994).

43a

Fonseca, 480 U.S. 421, 446 n.3 (1987). Slip op. at 10707 n.9.

The Cardoza-Fonseca court observed that inconsistent

agency interpretations may be entitled to less judicial deference

than consistently held positions, in a case where the agency

proffered a view not only inconsistent with its former

interpretation, but at odds with the plain language of the statute

at issue there. 480 U.S. at 446. By contrast, [13] the plain

language of section 3(0) makes no distinction between clothing

that is protective and clothing that is not.

Nor did the panel cite more recent Supreme Court

cases clarifying that shifts in policy are not fatal to the

legitimacy of an administrator's interpretation. /n Rust v.

Sullivan, 500 U.S. 173 (1991), for example, the Court

stated that it had "rejected the argument that an agency's

interpretation ‘is not entitled to deference because it

represents a sharp break with prior interpretations’ of the

statute in question.” Id. at 186 (citation omitted). "[A]

revised interpretation deserves deference” because! "'the

agency, to engage in informed rulemakifig, must consider

varying interpretations and the wisdom of its policy on a

continuing basis.”’ Id. (citations omitted); sve also Smiley

v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996) (The

mere fact that an agency interpretation contradicts a prior

agency position is not fatal. Sudden and unexplained

change, or change that does not take account of legitimate

reliance on prior interpretation, may be arbitrary,

capricious [or] are, abuse of discretion.’ But if these pitfalls

are avoided, change is not invalidating{.]") (citations

omitted}.

44a

APPENDIX G

U. S. Department of Labor

Employment Standards Administration

Wage and Hour Division

Washington, D.C. 20210

Dec. 3, 1997 [SEAL]

George R. Murphy, Esq.

General Counsel

United Food & Commercial Workers

International Union

1775 K Street, N.W.

Washington, D.C. 20006-1599

Roger J. Miller, Esq.

McGrath, North, Mullin & Kratz, P.C.

Suite 1400 One Central Park Plaza

222 South Fifteenth Street

Omaha, Nebraska 68102

Dear Mr. Murphy and Mr. Miller:

This responds to your respective requests for an opinion

concerning the application of section 3(o0) of the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. 203 (0), to employees

in the meat packing industry. According to your letter, the

employees in question perform the following preliminary

and postliminary activities: sharpening knives, waiting in

line at wash stations, cleaning equipment, and putting on

45a

and taking off required safety gear. You specifically ask

whether section 3(0) allows for the exclusion of any of

these activities from hours worked pursuant to the express

terms or by custom or practice under a collective

bargaining agreement.

Section 3(o) of the FLSA states as follows:

Hours worked. - In determining for the

purposes of sections 6 and 7 the hours for which

an employee is employed, there shall be

excluded any time spent in changing clothes or

washing at the beginning or end of each

workday which was excluded from measured

working time during the week involved by the

express terms or by custom or practice under a

bona fide collective-bargaining agreement

applicable to the particular employee.

29 U.S.C. 203 (0) (emphasis added). Since section 3 (0)

provides an exemption from the broad, remedial provisions

of the FLSA, it must be read narrowly. See Arnold v. Ben

Kanowsky, Inc., 361 U. S. 388, 392 (1960).

The putting. on, taking off, and washing of

protective safety equipment are compensable

activities under the FLSA if they are integral to an

employee’s principal activities, regardless of the

fact that they may be performed either before or

after the employee’s regular work shift. See

Reich v. IBP, Inc., 38 F.3d 1123 (10" Cir.

1994) (where court concluded that the time spent

by employees in putting on, taking off, and washing

protective safety equipment that is unique to the

46a

meat packing industry -- e.g., a mesh apron, a

plastic belly guard, mesh sleeves or plastic arm

guards, wrist wraps, mesh gloves, rubber gloves

polar sleeves, rubber boots, a chain belt, a weight

belt, a scabbard, and shin guards -- was

compensable). See generally 29 C.F.R. 799.8(b)

and (c). It is our view that by its very terms

section 3(0) does not apply to the putting on, taking

off, and washing of protective safety equipment

and, therefore, time spent on these otherwise

compensable activities cannot be excluded from

hours worked pursuant to the express terms or the

custom or practice under a collective bargaining

agreement.

The plain meaning of “clothes” in section 3(0) does

not encompass protective safety equipment;

common usage dictates that “clothes” refer to

apparel, not to protective safety equipment which is

generally worn over such apparel and may be

cumbersome in nature. In regard to the meaning of

“washing,” the legislative history specifically states

that the term refers only to washing oneself. The

conference agreement limited the section 3(0)

exemption “to time spent by the employee in

changing clothes and cleaning his person at the

beginning or at the end of each workday.” See H.R.

Conf. Rep. No 1453 (1949), reprinted in 1949

U.S.C.C.A.N. 2251, 2255 (emphasis added). See

also 95 Cong. Rec. 14,875 (1949) (speaking of the

conference agreement as limiting the application of

section 3(0) “to time spent in changing clothes or

washing (including bathing) at the beginning or end

of each workday”) (emphasis added); 29 C.F.R.

47a

790.7(g) (discussing preliminary and postliminary

activities such as “washing up or showering,

which, under the Portal-to-Portal Act, would not

generally be considered to be compensable unless

deemed to be an integral part of an employee’s

principal activity) (emphasis added). Thus, section

3(0) cannot be read so broadly as to include the

cleaning of protective safety equipment.

Therefore, the phrase “changing clothes. or

washing” in section 3(0) does not include the

putting on, taking off, or washing of that protective

safety equipment utilized in the meat packing

industry which is integral to the performance of an

employee's principal activity. Moreover, the phrase

clearly does not encumpass the sharpening of

knives.

We trust that the above is responsive to your

individual inquiries.

Sincerely,

/s/John R. Fraser

John R. Fraser

Acting Administrator

48a

APPENDIX H

2001 WL 58864 (DOL WAGE-HOUR)

Wage and Hour Division

United States Department of Labor

Opinion Letter

Fair Labor Standards Act (FLSA)

January 15, 2001

This responds to your request that we clarify opinion letters

issued on December 3, 1997, and February 18 1998,

interpreting Section 3(0) of the Fair Labor Standards Act, 29

U.S.C. 203(0). As you know, we met with representatives

of the *** to discuss issues you raised relating to

implementation of the interpretation expressed in the opinion

letters. We have carefully considered the recommendations

offered during those meetings as well as the supporting

documents submitted by the parties.

As we have previously indicated, prior to issuing the

December 3, 1997, opinion letter, the Administrator of the

Wage and Hour Division had never issued a written

interpretation or implemented an administrative practice or

enforcement policy regarding the proper construction of the

phrase “changing clothes and washing” in Section 3(0) of

the FLSA. Some regional and district officials of the Wage

and Hour Division and the Office of the Solicitor, however,

in their enforcement of some cases, chose to apply Section

3(0) if a bona fide collective bargaining agreement excluded

from hours worked the time spent by employees putting on,

taking off and cleaning protective equipment.

49a

Accordingly, when the Department filed suit under the

FLSA against Excel Corporation in July 1998, on behalf’ of

unionized meatpacking employees working at _ the

company’s Beardstown, Illinois, plant (later amended to

include Excel's Ft. Morgan, Colorado, plant) we exercised

prosecutorial discretion to seek back wages starting from

March 1998 -- the date when Excel received a copy of the

December 3, 1997, opinion. We will adhere to an

enforcement position to seek relief for unionized

meatpacking employees for their time spent putting on,

talking off and washing protective equipment beginning

from the date the employer received or should have received

notice of the December 3, 1997, opinion. We do not believe

it is appropriate, however, further to limit the relief we may

seek to work performed after expiration of collective

bargaining agreements in effect on December 3, 1997, that

excluded these pre-shift and post-shift activities from

compensable time. This exercise of prosecutorial discretion

does not imply that the opinion letters constituted a change

in the law or in the Administrator's interpretation of the law.

In addition, I would like to take this opportunity to reiterate,

as we discussed in our earlier meetings, that under the FLSA

and the Portal-to-Portal Act, it is the Department's

longstanding position that, as a general matter, compensable

hours worked include all time from the moment cach

employee performs the first principal activity of the

employee’s workday until the last principal activity is

concluded, less any bona fide meal periods or bona fide off-

duty time. An employer must compensate its employees for

any activity that is an integral and indispensable part of the

employee’s principal activities, including the putting on,

taking off and cleaning of personal protective equipment,

clothing or gear that is required by law, by rules of the

50a

employer or by the nature of the work. It should also be

noted that the meal period may not include any time

performing “work,” and that time spent donning and doffing

of personal protective equipment, clothing or gear before or

after the meal period is compensable.

Also, a number of meatpacking companies have asked the

Department if it would be permissible to pay employees

wages based on an average amount of time that. all

employees work. I would like to reiterate that in order to

comply with the FLSA and its implementing regulations (see

29 C.F.R. 516.2), a company must record and pay for each

employee’s actual hours of work, including compensable

time spent putting on, taking off and cleaning his or her

protective equipment, clothing or gear.

I look forward to working together to achieve compliance in

this industry, and appreciate your interest in these important

matters.

Sincerely,

T. Michael Kerr Administrator

Sla

APPENDIX I

29 CFR §790.4 Liability of employer; effect of

contract, custom, or practice.

(a) Section 4 of the Portal Act, quoted above, applies to

situations where an employee, on or after May 14, 1974,

has engaged in activities of the kind described in this

section and has not been paid for or on account of these

activities in accordance with the statutory standards

established by the Fair Labor Standards Act.'° Where. in

these circumstances such activities are not compensable by

contract, custom, or practice as described in section 4, this

section relieves the employer from certain liabilities or

punishments to which he might otherwise be subject under

the provisions of the Fair Labor Standards Act.'’ The

primary Congressional objectives in enacting section 4 of

the Portal Act, as disclosed by the statutory language and

legislative history were:

(1) To minimize uncertainty as to the liabilities of

employers which it was felt might arise in the future if the

compensability under the Fair Labor Standards Act of such

preliminary or postliminary activities should continue to be

tested solely by existing criteria’® for determining

compensable worktime, independently of contract, custom,

or practice; '° and

(2) To leave in effect, with respect to the workday

proper, the interpretations by the courts and the

Administrator of the requirements of the Fair Labor

Standards Act with regard to the compensability of

activities and time to be included in computing hours

worked.”

52a

(b) Under section 4 of the Portal Act, an employer who

fails to pay an employee minimum wages or overtime

compensation for or on account of activities engaged in by

such employee is relieved from liability or punishment

therefor if, and only if, such activities meet the following

three tests:

(1) They constitute ‘walking, riding, or traveling” of the

kind described in the statute, or other activities

“preliminary” or ‘‘postliminary” to the *‘principal activity

or activities" which the employee is employed to perform;

and

(2) They take place before or after the performance of all

the employee's ‘principal activities” in the workday; and

(3) They are not compensable, during the portion of the

day when they are engaged in, by virtue of any contract,

custom, or practice of the kind described in the statute.

relieves an employer of liability or punishment only with

respect to activities of the kind described, which have not

been made compensable by a contract or by a custom or

practice (not inconsistent with a contract) at the place of

employment, in effect at the time the activities are

performed. The statute states that ‘the employer shall not

be so relieved" if such activities are so compensable; *' it

does not matter in such a situation that they are so-called

’ portal-to-portal” activities.”

S3a

Accordingly, an employer who fails to take such activities

into account in paying compensation to an employee who is

subject to the Fair Labor Standards Act is not protected

from liability Or punishment in either of the following

Situations.

(1) Where, at the time such activities are performed there

is a contract, whether written or not, in effect between the

employer and the employee (or the employee's agent or

collective-bargaining representative), and by an express

provision of this contract the activities are to be paid for: 7°

(2) Where, at the time such activities are performed,

there is in effect at the place of employment a custom or

practice to pay for such activities, and this custom or

practice is not inconsistent with any applicable contract

between such parties.”

In applying these principles, it should be kept in mind that

under the provisions of section 4(c) of the Portal-to-Portal

Act, *'preliminary” or *‘postliminary” activities which take

place outside the workday * ‘before the moming whistle” or

“after the evening whistle” are, for purposes of the statute,

not to be considered compensable by a contract, custom or

practice if such contract, custom or practice makes them

compensable only during some other portion of the day.”°

17 ,

The failure of an employer to compensate employees subject to the

Fair !_abor Standards Act in accordance with its minimum wage and

overtime requirements makes him liable to them for the amount of their

with an additional equal amount (subyect to section 11 of the Portal-to-

54a

Portal Act, discussed below in Sec. 790.22) as liquidated damages

(section 16(b) of the Act); and, if his Act or omission is willful,

subjects him to criminal penalties (section 16(a) of the Act). Civil

actions for injunction can be brought by the Admunistrator (sections

11(a) and 17 of the Act).

‘* Employees subject to the minimum and overtime wage provisions

of the Fair Labor Standards Act have been held to be entitled to

compensation in accordance with the statutory standards, regardless of

contrary custom or contract, for all time spent during the workweek in

“physical or mental exertion (whether burdensome or not), controlled

or required by the employer and pursued necessarily and primarily for

the benefit of the employer and his business” (Tennessee Coal Iron &

R.R. Co. v. Muscoda Local, 321 U.S. 590, 598), as well as for all time

spent in active or inactive duties which such employees are engaged to

perform (Armour & Co. v. Wantock, 323 U.S. 126, 132-134; Skidmore

v. Swift & Co., 323, U.S. 134, 136-137).

’ Portal Act, section 1: Senate Report, pp. 41, 42, 46-49; Conference

Report, pp. 12, 13; statements of Senator Wiley, 93 Cong. Rec. 2084,

4269-4270; statements of Senator Donnell, 93 Cong. Rec. 2089, 2121,

2122, 2181, 2182, 2362, 2363; statements of Senator Cooper, 93 Cong.

Rec. 2292-2300.

*° Senate Report, pp. 46-49; Conference Report, pp. 12, 13:

statements of Senator Donnell, 93 Cong. Rec. 2181, 2182, 2362;

statements of Senator Cooper, 93 Cong. Rec. 2294, 2296, 2297, 2299,

2300; statement of Representative Gwynne, 93 Cong. Rec. 4388;

statements of Senator Wiley, 93 Cong. Rec. 2084, 4269-4270.

*" Section 4(b) of the Act (quoted in Sec. 790.3).

* Conference Report, pp. 12, 13; colloquy between Senators Donnell

and Hakes, 93 Cong. Rec. 2181-2182; colloquy between Senators

Cooper and McGrath, 93 Cong. Rec. 2297-2298, cf. colloquy between

Senators Donnell and Hawkes, 93 Cong. Rec. 2179.

*® Statements of Senator Donnell, 93 Cong. Rec. 2179, 2181, 2182:

statements of Senator Cooper, 93 Cong. Rec. 2297, 2298, 2299.

** Statements of Senator Donnell, 93 Cong. Rec. 2181, 2182.

** Conference Report, pp. 12, 13. See also Sec. 790.12.

5Sa

29 CFR §790.6 Periods within the “workday"

upaffected.

(a) Section 4 of the Portal Act does not affect the

computation of hours worked within the “workday” proper,

roughly described as the period *‘from whistle to whistle,”

and its provisions have nothing to do with the

compensability under the Fair Labor Standards Act of any

activities engaged in by an employee during that period.

Under the provisions of section 4, one of the conditions that

must be present before “‘preliminary” or ' postliminary”

activities are excluded from hours worked is that they

occur either prior to the time on any particular workday at

which the employee commences, or subsequent to the time

on any particular workday at which he ceases’ the principal

activity or activities which he is employed to perform.

Accordingly, to the extent that activities engaged in by an

employee occur after the employee commences to perform

the first principal activity on a particular workday and

before he ceases the performance of the last principal

activity on a particular workday, the provisions of that

section have no application. Periods of time between the

commencement of the employee's first principal activity

and the completion of his last principal activity on any

workday must be included in the computation of hours

worked to the same extent as would be required if the

Portal Act had not been enacted.** The principles for

determining hours worked within the “workday” proper

will continue to be those established under the Fair Labor

Standards Act without reference to the Portal Act,*® which

is concerned with this question only as it relates to time

spent outside the “‘workday” in activities of the kind

described in section 4.°”

56a

(b) ‘‘Workday” as used in the Portal Act means, in

general, the period between the commencement and

completion on the same workday of an employee's

principal activity or activities. It includes all time within

that period whether or not the employee engages in work

throughout all of that period. For example, a rest period or

a lunch period is part of the “workday”, and section 4 of

the Portal Act therefore plays no part in determining

whether such a period, under the particular circumstances

presented, is or is not compensable, or whether it should be

included in the computation of hours worked.** If an

employee is required to report at the actual place of

performance of his principal activity at a certain specific

time, his ‘‘wor! day" commences at the time he reports

there for work in accordance with the employer's

requirement, even though through a cause beyond the

employee's control, he is not able to commence

performance of his productive activities until a later time.

In such a situation the time spent waiting for work would

be part of the workday,” and section 4 of the Portal Act

would not affect its inclusion in hours worked for purposes

of the Fair Labor Standards Act.

“ The report of the Senate Judiciary Committee states (p. 47),

Activities of an employee which take place during the workday are

** * not affected by this section (section 4 of the Portal-to-Portal Act,

as finally enacted) and such activities will continue to be compensable

or not without regard to the provisions of this section.”

** See Senate Report, pp. 47, 48; Conference Report, p. 12; statement

of Senator Wiley, explaining the conference agreement to the Senate,

93 Cong. Rec. 4269 (also 2084, 2085); statement of Representative

_ Gwynne, explaining the conference agreement to the House of

Representatives, 93 Cong. Rec. 4388; statements of Senator Cooper, 93

Cong. Rec. 2293-2294, 2296-2300; statements of S.aator Donnell, 93

Cong. Rec. 2181, 2182, 2362.

57a

Standards Act, as amended is discussed in part 785 of this chapter.

” See statement of Senator Wiley explaining the conference

agreement to the Senate, 93 Cong. Rec. 3269. See also the discussion in

Secs. 790.7 and 790.8.

“ Senate Report, pp. 47, 48. Cf. statement of Senator Wiley

explaining the conference agreement to the Senate, 93 Cong. Rec.

4269; statement of Senator Donnell, 93 Cong. Rec. 2362; statements of

Senator Cooper, 93 Cong. Rec. 2297, 2298.

* Colloquy between Senators Cooper and McGrath, 93 Cong. Rec.

2297, 2298.

58a

29 CFR §790.7 *Preliminary'’ and ~‘postliminary"

activities.

(a) Since section 4 of the Portal Act applies only to

situations where employees engage in ‘‘preliminary" or

‘‘postliminary" activities outside the workday proper, it is

necessary to consider what activities fall within this

description. The fact that an employee devotes some of his

time to an activity of this type is, however, not a sufficient

reason for disregarding the time devoted to such activity in

computing hours worked. If such time would otherwise be

counted as time worked under the Fair Labor Standards

Act, section 4 may not change the situation. Whether such

time must be counted or may be disregarded, and whether

the relief from liability or punishment afforded by section 4

of the Portal Act is available to the employer in such a

situation will depend on the compensability of the activity

under contract, custom, or practice within the meaning of

that section.*” On the other hand, the criteria described in

the Portal Act have no bearing on the compensability or the

status as worktime under the Fair Labor Standards Act of

activities that are not “preliminary” or *‘postliminary"

activities outside the workday.*' And even where there is a

contract, custom, or practice to pay for time spent in such a

‘‘preliminary" or ‘‘postliminary" activity, section 4(d) of

the Portal Act does not make such time hours worked under

the Fair Labor Standards Act, if it would not be so counted

under the latter Act alone.”

(b) The words ‘‘preliminary activity" mean an activity

engaged in by an employee before the commencement of

his “‘principal" activity or activities, and the words

‘‘postliminary activity" means an activity engaged in by an

employee after the completion of his *‘principal" activity or

activities. No categorical list of “preliminary” and

‘‘postliminary" activities except those named in the Act can

be made, since activities which under one set of

59a

circumstances may be ‘‘preliminary" or ‘‘postliminary"

activities, may under other conditions be ‘‘principal"

activities. The following ‘‘preliminary" or *‘‘postliminary"

activities are expressly mentioned in the Act: ‘‘ Walking,

riding, or traveling to or from the actual place of

performance of the principal activity or activities which

(the) employee is employed to perform." “°

indicate that the ‘‘walking, riding or traveling" to which

section 4(a) refers is that which occurs, whether on or off

the employer's premises, in the course of an employee's

ordinary daily trips between his home or lodging and the

actual place where he does what he is employed to do. It

does not, however, include travel from the place of

performarce of one principal activity to the place of

performance of another, nor does it include travel during

the employee's regular working hours.“ For example,

travel by a repairman from one place where he performs

repair work to another such place, or travel by a messenger

delivering messages, is not the kind of ‘‘walking, riding or

traveling" described in section 4(a). Also, where an

employee travels outside his regular working hours at the

direction and on the business of his employer, the travel

would not ordinarily be ‘walking, riding, or traveling" of

the type referred to in section 4(a). One example would be

a traveling employee whose duties require him to travel

from town to town outside his regular working hours;

another would be an employee who has gone home after

completing his day's work but is subsequently called out at

night to travel a substantial distance and perform an

emergency job for one of his employer's customers.*” In

situations such as these, where an employee's travel is not

of the kind to which section 4(a) of the Portal Act refers,

the question whether the travel time is to be counted as

worktime under the Fair Labor Standards Act will continue

60a

to be determined by principles established under this Act,

without reference to the Portal Act.*°

(d) An employee who walks, rides or otherwise travels

while performing active duties is not engaged in the

activities described ti section 4(a). An illustration of such

travel would be the carrying by a logger of a portable

power saw or other heavy equipment (as distinguished from

ordinary hand tools) on his trip into the woods to the

cutting area. In such a situation, the walking, nding, or

traveling is not segreable from the simultaneous

performar ze of his assigned work (the carrying of the

equipme.i., etc.) and it does not constitute travel ‘‘to and

from the actual place of performance" of the principal

activities he is employed to perform.*’

(e) The report of the Senate Committee on the Judiciary

(p. 47) describes the travel affected by the statute as

‘Walking, riding, or traveling to and from the actual place

of performance of the principal activity or activities within

the employer's plant, mine, building, or other place of

employment, irrespective of whether such walking, riding,

or traveling occur on or off the premises of the employer or

before or after the employee has checked in or out." The

phrase, actual place of performance," as used in section

4(a), thus emphasizes that the ordinary travel at the

beginning and end of the workday to which this section

relates includes the employee's travel on the employer's

premises until he reaches his workbench or other place

where he commences the performance of the principal

activity or activities, and the return travel from that place at

the end of the workday. However where an employee

performs his principal activity at various places (common

examples would be a telephone lineman, a ‘trouble-

shooter" in a manufacturing plant, a meter reader, or an

exterminator) the travel between those places is not travel

of the nature described in this section, and the Portal Act

6la

has nof significance in determining whether the travel time

should be counted as time worked.

(f) Examples of walking, riding, or traveling which may

be performed outside the workday and would normally be

considered ‘‘preliminary" or ‘‘postliminary" activities are

(1) walking or riding by an employee between the plant

gate and the employee's lathe, workbench or other actual

place of performance of his principal activity or activities;

(2) riding on buses between a town and an outlying mine or

factory where the employee is employed; and (3) riding on

buses or trains from a logging camp to a particular site at

which the logging operations are actually being

conducted.”

(g) Other types of activities which may be performed

outside the workday and, when performed under the

conditions normally present, would be considered

“preliminary” or ‘‘postliminary" activities, include

checking in and out and waiting in line to do so, changing

clothes, washing up or showering, and waiting in line to

receive pay checks.”

(h) As indicated above, an activity which is a

“preliminary” or “‘postliminary" activity under one set of

circumstances may be a principal activity under other

conditions.” This may be illustrated by the following

example: Waiting before the time established for the

commencement of work would be regarded as a

preliminary activity when the employee voluntarily arrives

at his place of employment earlier than he is either required

or expected to arrive. Where, however, an employee is

required by his employer to report at a particular hour at his

workbench or other place where he performs his principal

activity, if the employee is there at that hour ready and

willing to work but for some reason beyond his control

there is no work for him to perform until some time has

62a

elapsed, waiting for work would be an integral part of the

employee's principal activities.’ The difference in the two

situations is that in the second the employee was engaged

to wait while in the first the employee waited to be

engaged.”

* See Conference Report. pp. 10, 12, 13; statements of Senator

Donnell, 93 Cong. Rec. 2178-2179, 2181, 2182; statements of Senator

Cooper, 93 Cong. Rec. 2297, 2298. See also Secs. 790.4 and 790.5.

*' See Conference Report, p. 12; Senate Report, pp. 47, 48; statement

of Senator Wiley, explaining the conference agreement to the Senate,

93 Cong. Rec. 4269; statement of Representative Gwynne, explaining

the conference agreement to the House of Representatives, 93 Cong.

Rec. 4388. See also Sec. 790.6.

*2 See Sec. 790.5(a).

* Portal Act, subsections 4(a), 4(d). See also Conference Report, p.

13; statement of Senator Donnell, 93 Cong. Rec. 2181, 2362.

“ These conclusions are supported by the limitation, ‘to and from

the actual place of performance of the principal activity or activities

which (the) employee is employed to perform," which follows the term

‘walking, riding or traveling" in section 4(a), and by the additional

limitation applicable to all ‘‘ preliminary" and ‘‘postliminary" activities

to the effect that the Act may affect them only if they occur ‘prior to”

or ‘subsequent to” the workday. See, in this connection the statements

of Senator Donnell, 93 Conf. Rec. 2121, 2181, 2182, 2363; statement

of Senator Cooper, 93 Cong. Rec. 2297. See also Senate Report, pp.

47, 48.

** The report of the Senate Judiciary Committee (p. 48) emphasized

that this section of the Act “‘does n

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