Amicus Curiae Brief — Tum v. Barber Foods, Inc., Dba Barber Foods

Nos. 0 & —

gery

7 7

IN THE 117209

Supreme Court of the Anited States nx |

IBP, INC.,

Petitioner,

Vv.

GABRIEL ALVAREZ, et all,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

ABDELA TUM, ef ai.,

Petitioners,

Vv.

BARBER Foops, INC., D/B/A/ BARBER Foops,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS (AFL-CIO) AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS IN TUM V. BARBER

FOODS (No. 04-66) AND IN SUPPORT OF

RESPONDENTS IN IBP V. ALVAREZ (No. 03-1238)

JONATHAN P. HIATT

JAMES B. COPPESS

Of Counset. (Counsel of Record)

LAURENCE GOLD 815 Sixteenth Street, NW

805 Fifteenth Street, NW Washington, DC 20006

Washington, DC 20005 (202) 637-5337

WiLsOn-EPes PrintinG Co.,. Inc. — (202) 789-0096 -— WasHincTon, D.C. 20001

oa ~

TABLE OF CONTENTS

Page

TABLES GP ALS TRIES 8 URED cccccscccsccccesssessssnscsccssssscsscese il

CSREES casesesnesenssscressnneneneccennsesnennsmannnsensenmatenteet

SUMMARY OF ARGUMENT ................sscccsssesesseeeeeees

ET

I THE “POST-DONNING AND PRE-

DOFFING WAITING TIME” ISSUE................ 6

Il THE TUM “WAITING TIME DURING THE

DONNING AND DOFFING PROCESS”

SIPEDEIED cccnssusccccvensssesmsanssssasannenssseanenniesutiniesiiigeestl 21

CO ccarecnnssstenessnnemenemenenetemmenemmennmnsinaniiaidnbitins 24

(i)

TABLE OF AUTHORITIES

CASES Page

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

En 14, 15

M.H. Fox, et al. v. Tyson Foods, Inc.,. Case No.

CV-99-TMP-1612-M (N.D. Ala.), available

at https://ecf.alnd.uscourts.gov/cgi-biin/DktRpt.

Ce 3

Mitchell vy. King Packing Co., 350 U.S. 260

( 17, 18

Steiner v. Mitchell, 350 U.S. 247 (19561) w.veeeeeees passim

STATUTES

Fair Labor Standards Act, 29 U.S.C. §§ 201 ef

a passim

Portal-to-Portal Act, 29 U.S.C. § 254(a))...ccccceeseees passim

LEGISLATIVE MATERIALS

Senate Report No. 48, 80th Cong., Ist Sess.

Ee 9,11

93 Cong. Rec. 2084 (1947) ....cccccccssscsssssssssseeeeeeennee 10

93 Cong. Rec. 2181 (1947)...........csssussererrnnnnennnes 10

93 Cong. Rec. 2297 (1947) .....ccccsceesssennnnnnennnnns 10, 14, 18

93 Cong. Rec. 2298 (1947)............cssaseerneennennnnnnns 19

93 Cong. Rec. 4269 (1947) ........ccccseseeseennnnnnnnnnnnnens 1

93 Cong. Rec. 4388 (1947) .0......ccccesee porececccessecscess 1

REGULATORY MATERIAL

9 CLR.F. § 4165S. ......ccccccccsserrcccesssrccssnnstteensnnnnnssnnnnes 3

29 C.F.R. § 790.68). ....0.ccccceocsorsocsccesssstseeneeerensevsnees 12

29 C.F.R. § T9O.G(D) ......ccecerceccoreceorsnsnsteerernenesssesenes 12

29 C.F.R. § T9O.B(C)...ccccccoccocsossosseserensttororensnnsosnees 12

29 C.F.R. § T9O.B(D) ......0ccecsocencecseccersnssterernesnsensssees 13

29 C.F.R. § 79O.7(G) ...0ccccecerceocorsocerersestsoeneeneneensevens 13

29 C.F.R. § 1910.32 (a)........ceccerecorsenssttennennnnnnnnnnnnn 2

iil

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

GAO-05-96, “Safety and Health of Meat and

Poultry Workers,” pp. | & 7 (Jan. 12, 2005),

available at: http://www.gao.gov/new.items/

GO596. pdf (“GAO Rep.”). ..cccccccecccsseeseeseesensees

Brief For the Secretary of Labor AS Amicus

Curiae Supporting Petition For Panel

Rehearing And Petition For Rehearing En

Banc in Tum v. Barber Foods, \st Circuit Nos.

Oe

IN THE

Supreme Court of the Hnited States

IBP, INC.,

Petitioner,

Vv.

GABRIEL ALVAREZ, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

ABDELA TUM, ef al.,

Petitioners,

Vv

BARBER Foops, INC.., p/e/a/ BARBER Foops,

Respondents.

On Writ of Certiorari to "Ye

United States Court of Af eals

for the First Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS (AFL-CIO) AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS IN TUM V. BARBER

FOODS (No. 64-66) AND IN SUPPORT OF

RESPONDENTS IN IBP V. ALVAREZ (No. 03-1238)

The American Federation of Labor and Congress of Indus-

trial Organizations (AFL-CIO), a federation of 58 national

and international labor organizations with a total membership

of approximately 13 million working men and women, files

2

this brief amicus curiae with the consent of the parties as

provided for in the Rules of this Court.'

STATEMENT

These two cases were brought by employees of meatpack-

ing industry employers claiming overtime wages under the

Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 20 et seq. for

the time the employees spent in donning and doffing required

personal protective equipment and sanitary garb and for the

time spent walking from the plant's donning locations to the

plant's killing or cutting floor and from the killing and cutting

floors to the plant's doffing locations.

“[{MlJeatpacking is one of the most dangerous industries in

the United States.” GAO-05-96, “Safety and Health of Meat

and Poultry Workers,” pp. | & 7 (Jan. 12, 2005), available at:

http://www.gao.gov/new.items/d0596.pdf (“GAO Rep.”). In

order to ameliorate these dangers, meat and poultry process-

ing employees (hereinafter meat processing employees) are

required to don an array of personal protective equipment at

their plant before the employees proceed to the plant's killing

cutting floor. See 29 C.F.R. § 1910.32 (a) (OSHA standard

requiring “persenal protective equipment . . . . wherever it is

necessary by reason of hazards of processes or environ-

ment”). Virtually all such employees are required to don

personal protective equipment such as hard hats, safety

goggles or face shields, earplugs. back belts, steel-toed boots,

and vinyl aprons and gloves. /BP vy. Alvarez (No. 03-1328),

Pet. App. 4a n. 2 & 39a; Tum v. Barber Foods (No. 04-66),

Pet. App. 3a-4a & 23a-25a. In addition, the employees who

handle knives or other sharp implements are required to don a

variety of equipment made of chain-linked metal, including

' No counsel for a party authored this brief amicus curiae in whole or

m part. and no person or entity, other than the amicus, made a monetary

contribution to the preparation or submussion of this brief.

3

mesh aprons, leggings, vests, sleeves and gloves. Alvarez

Pet. App. 4a n. 2 & 39a-40a.”

Meatpacking also implicates the public health, requiring

that the slaughtering and butchering take place in sanitary

conditions. All meat processing employees are therefore re-

quired by U.S. Department of Agriculture regulations to don

a variety of sanitary garb, most particularly sanitary hair nets

and smocks at the plant before the employees proceed to the

plant's killing or cutting floor. See 9 C.F.R. § 416.5. Alvarez

Pet. App. 39a; Tum Pet. App. 23a.

Much of the personal protective equipment must be stored,

donned and doffed at the plant. Alvarez Pet. App. 3a-4a, 39a;

Tum Pet. App. 4a. Many of the items must be cleaned at

the plant of animal blood and fat at the end of the workday

in order to be made ready for future use; the items made of

chain-linked metal are, in any event, too unwieldy to be worn

away from the plant. Alvarez Pet. App. 3a, 41a-42a.

All of the sanitary garb is maintained by the meatpacking

employer; is provided by the employer to the meat processing

employees and then donned at the plant; and is doffed at the

plant and returned to the employer at the end of the workday.

Alvarez Pet. App. 39a-40a; Tum Pet. App. 25a. USDA

regulations require that meat processing employees don clean

sanitary garb at the start of each day and that the garb be

maintained in a sanitary condition throughout the day. 9

C.F.R. § 416.5(b). The employees are generally required to

remove their sanitary garb before leaving the killing or cut-

* The Tum case presents the somewhat atypical situation of a secondary

poultry processing plant where boneless chicken breasts are dressed and

packaged for shipment to retail outlets. Tum Pet. App. 2la. For the more

typical situation of a plant where live chickens are slaughtered and butch-

ered, see pages 5-9 of the Magistrate Judge's Report and Recommenda-

tion (Feb. 14, 2001) in MH. Fox, et al. v. Tyson Foods, Inc., Case No.

CV-99-TMP-1612-M (N.D. Ala.), available at https://ecf.aind.uscourts.

gov/ cgi-bin/DktRpt_pi784 1 38.

4

ting floor and to re-don the garb again when they return to the

floor. Alvarez Pet, App. Sa, 41a; Tum Pet. App. 28a.

SUMMARY OF ARGUMENT

I. The question common to both the Alvarez case and

the Tum case is whether § 4(a) of the Portal-to-Portal Act,

29 U.S.C. § 254(a), privileges the employers here to treat

their employees “post-donning-of-required-personal-protective-

equipment-and-sanitary-garb” walking time from the plant’s

donning locations to the plant's killing or cutting floor and

the employees’ “pre-doffing” walking time from the killing or

cutting floor to the plant's doffing locations, as noncom-

pensable under the Fair Labor Standards Act, 29 U.S.C.

$§ 201 et seq. The answer to that question is “no.”

The Portal-to-Portal Act embodies Congress’ judgment: (i)

that the employer's noncompensation privilege stated in

§ 4(a) is to apply only to employee activities that take place

either prior to the commencement of the employee's “work-

day” or subsequent to the conclusion of that “workday,” and

(ii) that this § 4(a) employer noncompensation privilege is not

to apply to employee activity during the “workday” proper.

Section 4(a) so states in clear and unambiguous statutory

language; § 4(a)'s legislative history, moreover, makes it

plain that what § 4(a) statutory language so clearly states is

what Congress intended it to state; and the Department of

Labor's Portal-to-Portal Act regulations interpret § 4(a) in

strict accord with its plain meaning and with the legislative

history materials.

This Court's decision in Steiner v. Mitchell, 350 U.S. 247

(1956), in its turn, teaches that the employees here “com-

mence |their] principal activity or activities,” §4(a),—and

thus begin their workday—when, at the beginning of their

shift, the employees engage in the activity at employer-desig-

nated plant locations, of donning the personal protective

equipment and sanitary garb the employer requires them to

5

don and that the employees “cease [their] principal activity or

activities”—and thus conclude their workday—when, at the

end of their shift, they engage in the activity of doffing that

required personal protective equipment and sanitary garb at

the plant’s doffing locations. That being so, the Portal-to-

Portal Act does not apply to any of the employees’ post-

donning/pre-doffing walking activities at the plant—whether

it be walking between the plant’s donning locations and the

plant’s killing or cutting floor, walking between places on the

killing or cutting floor, or walking between the plant’s killing

or cutting floor and the plant’s doffing locations.

II. The Tum case presents the Portal-to-Portal Act question

of whether § 4(a) privileges the employer to treat the waiting

time spent by its poultry processing employees in obtaining

required personal protective equipment and sanitary garb

from the employer, and in returning that equipment and garb,

in the course of their workplace donning ad doffing activities,

as noncompensable under the Fair Labor Standards Act. The

answer to that question is “no.”

This Court's decision in Steiner v. Mitchell, supra, estab-

lishes that the FLSA makes compensable “time incident” to

an employee workplace activity, like the clothes changing

there, that is “an integral and indispensable part of the princi-

ple activity for which the covered workmen are employed,”

see 350 U.S. at 248 and 256; viz. makes compensable the time

the employee spends taking the steps necessary to accom-

plishing that work-place activity task. And, the employee

waiting time in obtaining and returning required personal

protective equipment and sanitary garb at issue in Tum like

the time the employee spends in taking physical possession of

the required items and in the physical return of those items is

part and parcel of a single necessary step toward accomplish-

ing their workplace donning and doffing activity task. That

waiting time is thus compensable “time incident” to that

employee workplace activity.

6

ARGUMENT

I. THE “POST-DONNING AND PRE-DOFFING

WALKING TIME” ISSUE

In both Alvarez and Tum, the meatpacking employer:

(i) requires its meat processing employees, at the beginning of

their shift, to procure and don particular personal protective

equipment and sanitary garb at specified plant donning loca-

tions: (ii) requires the fully outfitted employees to walk

directly from the plant’s donning locations to the plant’s

killing or cutting floor; (iii) requires the fully outfitted em-

ployees at the end of their shift to walk from the killing or

cutting floor to the plant’s doffing locations; and (iv) requires

the employees to doff and turn in the personal protective

equipment and sanitary garb that must be cleaned for future

use at those doffing locations.

The question common to both cases is whether § 4(a) of

the Portal-to-Portal Act, 29 U.S.C. § 254(a), privileges the

employers to treat the employees post-donning walking time

and the pre-doffing walking time at issue here as noncom-

pensable under the Fair Labor Standards Act. The answer to

that question is “no.”

The Portai-to-Portal Act states—in clear and unambiguous

language—Congress’ carefully considered judgment: (i) that

the employer’s noncompensation privilege stated in § 4(a)

applies only to employee activities that take place either prior

to the commencement of the employee’s “workday” or subse-

quent to the conclusion of that “workday;” and (ii) that the

§ 4(a) employer noncompensation privilege does not apply to

employee activity during the “workday” proper. Section 4(a),

The Tum case also raises a § 4(a) question regarding the compensabil-

ity of the waiting time the employees spend in the course of donning and

doffing this required personal protective equipment and sanitary garb at

the plant. We treat briefly with that question in Part II of our argument,

infra.

7

by its terms, has no application to employee activities that

occur during the period of time that begins when an employee

“commences” his “principal activity or activities” on a given

day and that continues until the employee “ceases” his “prin-

cipal activity or activities” for that day. 29 U.S.C. § 254(a).

This Court’s decision in Steiner v. Mitchell, 350 U.S. 247

(1956), makes it equally clear that the meat processing em-

ployees here “commence [their] principal activity or activi-

ties” —and thus begin their “workday”—when, at the begin-

ning of their shift, the employees engage in the activity, at

employer-designated plant locations, of donning the personal

protective equipment and sanitary garb the employer requires

them to don and that the employees “cease [their] principal

activity or activities”’—and thus conclude their “workday”—

when at the conclusion of their shift they engage in the activ-

ity of doffing that required personal protective equipment and

sanitary garb at the plant’s doffing locations. That being so,

the Portal-to-Portal Act does not apply to any of the employ-

ees’ post-donning/pre-doffing walking activities at the plant—

whether it be walking between the plant’s donning location

and the plant’s killing or cutting floor, walking between

places on the killing or cutting floor, or walking between

the plant’s killing or cutting floor and the plant’s doffing

locations.

A.(1) Section 4(a) of the Portal-to-Portal Act provides

that

“no employer shall be subject to any liability or punish-

ment under the Fair Labor Standards Act . . . on account

of the failure of such employer . . . to pay an employee

overtime compensation, for or on account of any of the

following activities . ..—

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

place of performance of the principal activity or activi-

ties which such employee is employed to perform, and

8

(2) activities which are preliminary to or postliminary

to said principal activity or activities,

which occur either prior to the time on any particular

workday at which such employee commences, or subse-

quent to the time on any particular workday at which he

ceases, such principal activity or activities.” 29 U.S.C.

§ 254 (a).

In sum, the express terms of § 4(a)(1) privilege employers

tO treat as noncompensable under the FLSA an employee's

“activities [of] . . . walking, riding, or traveling to and from

the actual place of performance of the principal activity or

activities which such employee is employed to perform .. .

which occur either prior to the time on any particular work-

day at which such employee commences, or subsequent to the

time on any particular workday at which he ceases, such

principal activity or activities.”

This statutory text clearly and unambiguously states the

following two points with regard to § 4(a)(1)’s scope of

application:

e First, § 4(a)(1) does privilege employers to treat as

noncompensable under the FLSA: (i) employee “walk-

ing. riding, or traveling to the . . . [first] actual place of

performance of the [employee’s] principal activity or

activities” at the beginning of the employee's “work-

day.” and (ii) employee “walking, riding, or traveling...

from the [last such] place of performance” at the end of

the employee's “workday.”

e Second, § 4(a)(1) does not privilege employers to treat

as noncompensable under the FLSA, employee “walk-

ing, riding, or traveling” between one “actual place of

performance of the [employee’s] principal activity or

activities” and a second “place of [such] performance”

which “occurs [subsequent] to the time on any particular

workday at which such employee commences [and

prior] to the time on any particular workday at which he

ceases, such principal activity or activities.”

9

(2) The Portal-to-Portal Act’s legislative history makes it

plain that what § 4(a)(1) says in this regard is precisely what

Congress intended to say. The Senate Report on the provi-

sion in the Senate bill that became § 4(a) states:

“The rule laid down [in § 4(a)] is that activities which

take place either prior to the time at the beginning of his

workday when [an] employee commences, or subse-

quent to the time at the end of his workday, when [an]

employee terminates his principal activity or activities,

are activities (called portal-to-portal activities) which are

not compensable except by contract or by a practice or

custom not inconsistent therewith.” Senate Report No.

48, 80th Cong., Ist Sess. 47 (1947).

In this regard, the Senate Report explains that it “uses the

term ‘workday’ to mean that period of the workday between

the commencement by the employee, and the termination by

the employee, of the principal activity or activities which

such employee was employed to perform.” /d.

The Senate Report goes on to note that “[t}he term ‘princi-

pal activity or activities’ includes all activities which are an

integral part thereof,” and reiterates that “the particular time

at which the employee commences his principal activity or

activities and ceases his principal activity or activities mark[{]

the beginning and the end of his workday.” S. Rep. No. 48,

p. 48.

To leave no doubt about § 4(a)’s scope of application, the

Senate Report, having described what is within § 4(a)’s lim-

ited reach, describes what is beyond § 4(a)’s reach: “Activi-

ties of an employee which take place during the workday are

. not affected by this section and such activities will

continue to be compensable or not without regard to the

provisions of this section.” S. Rep. No. 48, p. 47. And, it

follows that “[a]ny activity occurring during a workday will

continue to be compensable or not compensable in accor-

10

dance with the existing provisions of the Fair Labor Stan-

dards Act.” /d. at 48

Each of the Senate bill’s primary sponsors re-emphasized

the limits of § 4(a)’s reach during the ensuing floor debate:

e Senator Wiley, who submitted the Report on the Sen-

ate bill, explained that “activities occurring within the

‘whistle-to-whistle’ period are not affected by the Senate

bill. Such activities are permitted to be treated as they

have been, under the Fair Labor Standards Act.” 93

Cong. Rec. 2084 (1947).

e Senator Donnell, the Senate bill’s floor manager,

stated that “we are not undertaking to legislate in [this

section] as to the workday proper; but we are legislating

solely with respect to the preliminary activities, before

the beginning of the workday, and the postliminary

activities, after the conclusion of the workday.” /d. at

2181.

e Senator Cooper, the third principal sponsor of the bill,

explained, “For the period from the beginning of the

time of the employee’s principal activity, until that prin-

cipal activity is ended, we do not legislate at all. That

area is still under the Wage and Hour Administrator.

The rules which have already been developed by the

Wage and Hour Administrator and the decisions of the

courts still apply to that interval between the commence-

ment of the employee’s principal activity and the end

thereof.” /d. at 2297.

Consistent with the foregoing, in presenting to the Senate

the conference agreements on the portal-to-portal bill, Senator

Wiley reported:

“Section 4 of the conference agreements relates to

future claims and relieves an employer from liability for

his failure to pay minimum wages or overtime compen-

sation for activities engaged in outside of the workday,

unless such activities are compensable by custom or con-

tract. Activities performed by an employee during the

workday are not affected in any manner by this bill, and

the employer will remain liable or not liable for payment

of such activities under the [FLSA] to the same extent as

he would be if this bill were not enacted. In other words,

they are left under the applicab[le] provisions of law in

existence prior to the date of enactment of the Portal-to-

Portal Act of 1947.” 93 Cong. Rec. 4269.

See also id, at 4388 (where Rep. Gwynne gives a similar ex-

planation of the conference agreements to the House).

In sum, as Senator Wiley put it, “[a]ctivities performed by

an employee during the workday are not affected in any

manner by [§ 4(a)],”"" 93 Cong. Rec. 4269, and as the Senate

Report explained, the statutory term “workday” is defined “to

mean that period of the workday between the commencement

by the employee, and the termination by the employee, of the

principal activity or activities which such employee was

employed to perform,” S. Rep. No. 48, p. 47.

(3) The regulations adopted by the Department of Labor

shortly after the enactment of the Portal-to-Portal Act suc-

cinctly state the lessons to be drawn from the statutory lan-

guage and its legis!ative history.

First, those regulations clearly state that “[pJeriods within

the ‘workday’ [are] unaffected” by the Portal-to-Portal Act:

“Section 4 of the Portal Act does not affect the computa-

tion of hours worked within the ‘workday’ proper,

roughly described as the period ‘from whistle to whis-

tle,’ 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

12

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 employe occur

after the employee commences to perform the fist prin-

cipal activity on a particular workday and before he

ceases the performance of the last principal activity on a

particular workday, the provisions of that sectiyn have

no application. Periods of time between the commence-

ment of the employee's first principal activity and the

completion of his last principal activity on any vorkday

must be included in the computation of hours worked to

the same extent as would be required if the Patal 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 Siandards

Act without reference to the Portal Act, which is con-

cemed with this question only as it relates to tine spent

outside the ‘workday’ in activities of the kind dsscribed

in section 4." 29 C.F.R. § 790.6(a) (footnotes onitted).

Second, the regulations clearly elaborate the definition of

the term “workday” in the Portal-to-Portal Act as follows:

“* 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 tha period

whether or not the employee engages in work thioughout

all of that period. For example, a rest period o1 a Junch

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 circum-

stances presented, is or is not compensable, or whether it

should be included in the computation of hours vorked.”

29 C.F.R. § 790.6(b) (footnotes omitted).

Finally, after stating that “[t]he term ‘principal activities’

includes all activities which are an integral part of a principal

activity,” the regulations explain that “[{aJmong the activities

included as an integral part of a principal activity are those

13

closely related activities which are indispensable to its per-

formance.” 29 C.F.R. § 790.8(b) & (c) (footnotes omitted).*

(4) Against that background, the sum and substance of

§ 4(a)(1), as Senator Cooper explained, is to provide that

“[wlalking, riding, or traveling time to the place where the

principal activities are performed [is] eliminated as a princi-

pal activity” so that “clearly and definitely, as to the future,

an employee cannot receive compensation [pursuant to the

* Contrary to the First Circuit's suggestions at Tum Pet. App. 8a-9a,

nothing in the Department of Labor regulations departs from, limits or

modifies the regulations’ recognition, 29 C.F.R. § 790 6(a), that “periods

within the ‘workday’ [are] unaffected” by the Portal-to-Portal Act. As the

Secretary of Labor stated in her amicus brief to the First Circuit in support

of rehearing in Tum, the Department of Labor regulations “adhere to the

‘workday’ principle” throughout and none of the subsections cited by the

First Circuit in its Tum opinion, are intended to call for, or can be properly

read as calling for, the application of § 4(a) to make noncomp*nsable any

employees activity that occurs during the employee's “workday” proper.

See Brief For the Secretary of Labor As Amicus Curiae Supporting Peti-

tion For Panel Rehearing And Petition For Rehearing En Banc in Tum v.

Barber Foods, \st Circuit Nos. 02-1679 & 02-1739, at pp. 7-8 and 10-12.

The Secretary pointed out in this regard that 29 C.F.R. 790.7(q) n.49

“stands for nothing more remarkable than the proposition that the [em-

ployee workplace] travel discussed may be noncompensable if the [em-

ployees’] preceding activity at the washroom or the clothes-changing

place is, under the particular circumstances, not considered a principal

activity. Sec. Br. at 10-11. The Secretary added that 29 C.F.R. 790.7(d)

“does not address employees who must walk after performing their first

principal activity . . . [but] only describes those situations when commut-

ing time independently would or would not be considered a compensable

principal activity, thereby starting the workday” Sec. Br. at 11-12 (em-

phasis in original). And, the Secretary noted that 29 C.F.R.790.7(g) and

790.8(c) treat with “activities that normally or ordinarily would not be

considered principal active-ties, and thus would be considered “prelimi-

nary” or “postliminary” in nature (i.e., outside the purview of the “work-

day”), Sec. Br. at 12 (emphasis in original).

The Secretary of Labor's interpretation of her own regulation is, of

course, entitled to the greatest weight.

14

FLSA] for any walking, riding, or traveling time to the actual

place of performance where he begins his actual activities.”

93 Cong. Rec. 2297. In other words, as the Court stated in

Steiner v. Mitchell, supra, employee “activities . . . are com-

pensable under the portal-to-portal provisions . . . if those

activities are an integral and indispensable part of the [em-

ployee’s] principal activities . . . and are not [the ‘walking,

riding, or traveling’ activities] specifically excluded [from the

term ‘principal activity or activities’] by Section 4(a)(1).”

350 U.S. at 256.

Congress’ point in providing in § 4(a)(1) that “an employee

cannot receive compensation [pursuant to the FLSA] for any

walking, riding, or traveling time to the actual place of per-

formance where he begins his actual activities,” 93 Cong.

Rec. 2297 (Sen. Cooper), was to preclude any argument that

walking at the start of the day to the place where an employee

performs the first of his “principal activities” is so integral

and indispensable to the employee's ability to perform that

first activity that the walking itself must be regarded as a

“principal activity.”

If “walking, riding, or traveling” at the start of the day to

the place where an employee performs the first of his “princi-

pal activities” had not been singled out in § 4(a)(1) as not

being a “principal activity,” this argument would have had

force. This_is so because the Portal-to-Portal Act defines

“principal activity or activities” as including “closely related

activities which are indispensable to [a principal activity’s]

performance.” But this argument would have resurrected in a

new guise the holding in Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680, 691 (1946), that “time necessarily spent by

the employees in walking to work on the employer’s prem-

ises, following the punching of time clocks, was working

time within the scope of [FLSA] § 7(a).” And, since a pri-

mary purpose of the Portal-to-Portal Act was to overrule Mr.

Clemens Pottery with respect to “walking to work,” the

1S

language of § 4(a) was drafted so as to clearly and definitely

put that argument to rest and to do so in a manner that makes

it plain that § 4(a)(1), like § 4(a)(2), has no application to em-

ployee workplace activity that occurs during the employee's

“workday” proper.

(5) In Alvarez, the petitioner-employer argues that, in

§ 4(a)(1), Congress went far beyond overruling the “walking

to work” holding of Mt. Clemens Pottery and instead made

noncompensable under the FLSA employee “walking that

occurs between [the place of performance of an] ‘integral and

indispensable activity’ and the work station.” Pet. 13 (empha-

sis added). This reading of § 4(a)(1) runs roughshod over the

language that Congress crafted and enacted to make it clear

that the provision is to have no application to employee

activity during the “workday” proper.

Section 4(a)(1) simply cannot be read to say that employers

are privileged to treat as noncompensable under the FLSA

employee “walking, riding, or traveling” during the course of

the workday between “place[s] of performance of . . . princi-

pal . . . activities.” What § 4(a)(1)’s language does say, and

what Congress intended it to say, is that employers are so

privileged with regard to employee “walking, riding, or

traveling fo . . . the [first] actual place of performance of the

Jemployee’s] principal activity or activities” at the beginning

of the workday and “from” the last such place at the end of

the workday, 29 U.S.C. § 254(a)(1) (emphasis added). Noth-

ing in § 4(a)(1) provides any predicate for the proposition that

the provision applies to “walking, riding, or traveling” during

the “workday” proper.

By the same token, the A/varez petitioner-employer’s effort

to rest its reading of § 4(a)(1) on the Steiner opinion runs

roughshod over that opinion’s language.

16

As we have noted, Steiner defines the § 4(a) term “princi-

pal activity or activities’"—and thus the range of activities

compensable under the FLSA—as follows:

“[A]ctivities performed either before or after the regular

work shift, on or off the production line, are com-

pensable 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 spe-

cifically excluded by Section 4(a)(1).” 350 U.S. at 256.

The Alvarez petitioner-employer would read the foregoing

not as an elucidation of the meaning of the § 4(a) term “prin-

cipal activity or activities” but as an elucidation of the term

“walking, riding or traveling” and as if the Steiner Court had

Stated:

“activities performed [during an employee's workday] . . .

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 [employee's] prin-

cipal activities . . . and are not [the walking, riding, or

traveling] specifically excluded [from being com-

pensable]} by Section 4(a)(1).”

That rendering of the Steiner opinion has nothing to do

with the opinion the Steiner Court wrote. It restates what the

Court said so as to put the opinion into direct conflict with

§ 4(a)(1)’s statutory language and with the Congressional

intent clearly expressed in § 4(a)(1)’s language to make non-

compensable only employee “walking, riding, or traveling to

. . . the [first] actual place of performance of the principal

activity Or activities” at the beginning of the “workday” and

“from” the last such place at the end of the “workday” and

not employee workplace “walking, riding or traveling” during

the “workday” proper.

B. As we have emphasized, § 4(a)’s statutory language

states in clear terms that its provisions have no application to

17

employee activity during the “workday” proper—the period

of time that begins when an employee “commences” his

“principal activity or activities” and continues until the em-

ployee “ceases” his “principal activity or activities”

In contrast, “[t]he language of Section 4 is not free from

ambiguity,” Steiner, 350 U.S. at 254, with regard to what

employee activities come within the statutory term “principal

activity or activities.”

But Steiner and its companion case, Mitchell v. King Pack-

ing Co., 350 U.S. 260 (1956), fill out the meaning of that

statutory term and do so in a manner that clearly establishes

that the meat processing employees here are engaged in their

“principal activity or activities” when they engage in the

workplace donning of their required personal protective

equipment and sanitary garb and when they engage in the

workplace doffing of that equipment and garb.

(1) The “precise [Portal-to-Portal Act] question” in Steiner

was:

“{W]hether workers in a battery plant must be paid as a

part of their ‘principal’ activities for the time incident to

changing clothes at the beginning of the shift and show-

ering at the end, where they must make extensive use of

dangerously caustic and toxic materials, and are com-

pelled by circumstances, including vital considerations

of health and hygiene, to change clothes and to shower

in [plant] facilities which state law requires their

employer to provide.” 350 U.S. at 248.

The Court answered that question “yes.” Based on the lan-

guage of § 4(a) read in the context of the Portal-to-Portal Act

as a whole and its legislative history, the Court

“conclude[d] 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

18

for which covered workmen are employed and are not

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

We find no difficulty in fitting the facts of this case to

that conclusion because it would be difficult to conjure

up an instance where changing clothes and showing are

more clearly an integral and indispensable part of the

principal activity of the employment than in the case of

these employees.” 350 U.S. at 256.

(2) While Steiner speaks clearly for itself, we would be

derelict if we failed to note two aspects of the Senate legisla-

tive materials the Steiner Court set out in the appendix to its

opinion as providing particular support for its statement “that

the Senate intended the activities of changing clothes and

showering to be within the protection of the [Fair Labor

Standards] Act if they are an integral part of and are essential

to the principal activities of the emplieyees,” 350 U.S. at 254,

and for the Court's holding.

First, elaborating on the Senate Report's explanation that

“[t}he term ‘principal activity or activities’ includes all activi-

ties which are an integral part thereof,” S. Rep. No. 48, p. 48,

Senator Cooper stated “it is our opinion that those activities

which are so closely related and are an integral part of the

principal activity, indispensable to its performance, must be

included in the concept of principal activity.” 93 Cong. Rec.

2297.

Seeking clarification as to the definition of this critical

Statutory term, Senator McGrath asked Senator Cooper:

“Am I correct in understanding the Senator to say that

what the majority of the committee proposes is that any

activity of a worker shall be considered a part of his

principal activity if the doing of that act is indispensable

to the performance of the rest of his day’s work?” 93

Cong. Rec. 2297.

Senator Cooper then confirmed Senator McGrath’s under-

standing. /d. at 2297-98.

19

See Steiner, 350 U.S. at 256-257.

Second, in their colloguy Senators Cooper and McGrath

made it clear that the term “principal activity or activities”

covers employee activities indispensable to the employee's

performance that take a short time as well as those that take a

longer time. In this regard Senator Cooper began by reciting

two examples of “principal activities” from the Senate Re-

port. The second example involved “a garment worker . . .

who is required to report 30 minutes before other employees”

and during that time “distributes clothing or parts of clothing

at the workbenches of other employees and gets machines in

readiness for operation by other employees.” This prompted

the following series .. questions and answers:

“Mr. McGrath. Is there any significance to the use of

the words ‘thirty minutes”? * * *

“Mr. Cooper. No; there was no definite purpose in

using the words ‘thirty minutes’ instead of 15 or 10

minutes or 5 minutes or any other number of minutes.

“Mr. McGrath. Then we can clear that point up by

reiterating that what the committee means is that any

amount of time spent in the performance of the type of

activity expressed in examples | and 2 is to be hereafter

regarded as compensable time.

“Mr. Cooper. I should certainly say so, as a part of

the principal activity.” 93 Cong. Rec. 2298.

See Steiner, 350 U.S. at 257-258 (omitting the two next to last

portions in this exchange).

(3) Steiner's holding formed the predicate for the Court's

companion decision in Mitchell v. King Packing Co., supra,

which concerned “knifemen [who] perform[ed] various butch-

ering operations . . . in the killing room and . . . in the cutting

room” of “an interstate meat packer” who “[we]re required to

sharpen their own knives outside [i.e. before or after] the

scheduled shift of eight hours . . . in a room [in the plant]

20

equipped by [their employer for that purpose] . . .” 350 U.S.

at 262.

The Portal-to-Portal Act question in King was “whether the

knife-sharpening activities of the employees . . . are within

the[] classification” of “principal activities,” as defined in

Steiner, 350 U.S. at 262. The Court answered that question

“yes.”

Noting that “[a]ll of the knives . . . must be ‘razor sharp’

for the proper performance of the work,” 350 U.S. at 262, the

Court concluded that “the knifesharpening activities of these

workmen are an integral part of and indispensable to the vari-

ous butchering activities for which they were principally

employed and that they must be compensated for by [the

employer] in compliance with the Fair Labor Standards Act

as amended by the Portal-to-Portal Act, and as construed in

Steiner v. Mitchell,” id. at 263.

(4) Taken together, Steiner and King clearly establish

that the workplace donning of required protective equipment

and sanitary garb by the meat processing employees here at

the beginning of their shift and the workplace doffing of that

equipment and garb at the end of their shift are among their

“principal activities” within the meaning of § 4(a) of the

Portal-to-Portal Act. These employees are “compelled by cir-

cumstances, including vital considerations of health and hy-

giene,” Steiner, 350 U.S. at 248—that are reflected in manda-

tory federal health and safety standards and in their em-

ployer’s rules—{i) to don personal protective equipment and

sanitary garb at the plant’s donning locations before proceed-

ing directly to the plant’s killing or cutting floors; and (ii) on

leaving the killing or cutting floor for the day to doff that

equipment and garb at the plant’s doffing locations. Thus,

like the employees’ workplace clothes changing and shower-

ing activities at issue in Steiner and the employees’ knife

sharpening activities at issue in King Packing, the employees’

workplace those donning and doffing activities here are “an

2]

integral and indispensable part of the principal activity of

their employment,” 350 U.S. at 256.

Of equal moment, the employees’ workplace donning ac-

tivities constitute the first of their “principal activities” on any

given workday, and the employees’ doffing activities consti-

tutes the last of their “principal activities” for that workday”.

It follows that engaging in that donning activity marks the

beginning of the employees’ “workday,” and that engaging in

that doffing activity marks the end of that “workday.” That

being so, the employees’ walking from the plant’s donning

locations to the plant’s killing or cutting floor and their walk-

ing from the killing or cutting floor to the plant doffing

locations at issue here occurs during the employees “work-

day” proper and is beyond the reach of the Portal-to-Portal

Act.

Il. THE TUM “WAITING TIME DURING THE

DONNING AND DOFFING PROCESS” ISSUE

In Tum the employer provides: that at the beginning of

their shift its poultry processing employees are to don their

required personal protective equipment and sanitary garb in

the plant’s hallway leading off the plant’s entrance (and exit)

along which is arranged an equipment cage, coat racks and

equipment bins; and (ii) that at the end of their shift the em-

ployees are to doff their equipment and garb at the same plant

location. In the donning process the employees must procure

the required items from the employer at the equipment cage

window, coat racks and equipment bins. And in the doffing

process the employees must turn in to the employer the re-

quired items they had obtained in the donning process. See

Tum Pet. App. 3a-4a. Given the employer’s arrangements for

the donning and doffing processes “[e]mployees may have to

> As we explain in Part II, infra, the donning activity in question often

entai!s a number of successive steps, including steps necessary to procur-

ing the equipment and garb from the designated locations at the plant.

22

wait to obtain and dispense with clothing and equipment. At

busier times, there may be lines at the coat racks, glove liner

bins, and [equipment] cage window ...”. /d. at 4a.

The Portal-to-Portal Act question thus presented is whether

§ 4(a) privileges the employer to treat the waiting time spent

by the employees in obtaining required personal protective

equipment and sanitary garb from the employer, and in re-

turning that equipment and garb, as noncompensable under

the Fair Labor Standards Act. The answer to that question is

oT °

no.

This Court’s decision in Steiner v. Mitchell, supra, pro-

vides the starting point for analysis. Steiner, as we have

emphasized, settles the critical, but still abstract, proposition

that such employee workplace activities as “changing clothes

at the beginning of the shift and showering at the end” that

are “an integral and indispensable part of the principal ac-

tivities for which the covered workmen are employed” are

compensable under the FLSA as “principal activities.” See

350 U.S. at 248 and 256. It is also very much to the point

here that at a more concrete level Steiner establishes that it is

“the time incident to [such] changing of clothes and shower-

ing”, id. at 248, which in that case “was found to come to 30

minutes a day . . . for each employee,” id. at 251, that is

compensable under the FLSA. It could not be otherwise.

The descriptive phrase “changing clothes at the beginning

of a shift” does not describe an instantaneous event—it

describes an active process in which the employee takes a

series of successive steps over time dictated by the nature of

the task and by the nature of the employer’s arrangements for

the clothes changing process and the nature of the employers’

clothes changing facility. Thus, an employee engages in the

“principal activity” of “changing clothes” by going through a

clothes changing process—viz. by taking the successive steps,

and by spending the time on each, necessary to accomplish

the required clothes changing task. That being so, as Steiner

23

recognizes, the FLSA makes compensable the time the em-

ployee spends taking the steps necessary to accomplish the

“principal activity” task at hand—viz. the “time incident” to

accomplishing that task.

The employee waiting time at issue in Tum is “time in-

cident” to their donning and doffing of required personal

equipment and sanitary garb and as such is compensable

under the FLSA. The employer has arranged the donning and

doffing processes, and structured the donning and doffing

locations, so that a necessary step in the donning process is

for the employee to “obtain [required] clothing and equip-

ment” from the employer and a necessary step in the doffing

process is for the employee to “dispense with [that] clothing

and equipment” by returning it to the employer. And the em-

ployer has done so in a manner that may require the employee

to have to wait his turn in lines at the employer’s equipment

points in order to obtain required items and in order to return

required items. That “waiting” time “is incident” to the don-

ning and doffing process just as surely as the time the em-

ployee spends in taking physical possession of the required

items and as the time spent in the physical return of those

items.

Indeed, the “waiting time” and the “obtaining time” do not

measure two separate steps in the donning process, nor do the

‘waiting time’ and the “returning time” measure two separate

steps in the doffing process. The necessary step to accom-

plishing the donning task of obtaining the required items is a

single step that begins when the employee seeks to obtain the

item and continues until the employee obtains possession of

the item. And, that necessary step is part and parcel of the

overall donning process. It cannot possibly be considered to

be a Portal-to-Portal Act “preliminary activity” separate from

the “principal activity” of donning the required protective

equipment and sanitary garb. The same is true of the single

step of returning the required items which cannot be con-

24

sidercd to be a “postliminory activity” separate from the

“principal activity” of doffing the required protective equip-

ment and sanitary garb.

CONCLUSION

The judgment of the First Circuit in Tum, case no. 04-66,

should be reversed, and the judgment of the Ninth Circuit in

Alvarez, case no. 03-1238, should be affirmed.

Respectfully submitted,

JONATHAN P. HIATT

JAMES B. COPPESS

Of Counsel: (Counsel of Record)

LAURENCE GOLD 815 Sixteenth Street, NW

805 Fifteenth Street, NW Washington, DC 20006

Washington, DC 20005 (202) 637-5337