Appendix — Allen v. McWane, Inc.

APPENDIX

TABLE OF CONTENTS

Appendix Page

Published Opinion of

|

The United States Court of Appeal

lor The kufth Circuit

entered January &, ZO10 \pp. J

Judgement of

Phe ( nited mtates Court O] Appt

hor The Filth Cireuit

entered January &, ZO10 App

Judgment of

The United States District Court

Mor ‘The Kastern District of Texas

entered September 24, 200% App. 24

Report and Recommendation of

The United States District Court

Kor The Ica: tern District of ‘Vexa

entered Augu { L0 ZVI08 \pp 20

Mx tarbat GLO

Plaintiffs’ Re ponse 1n Oppo 1iOn to

Delendants Motion for Summary Judgment

entered pr pte mber 14. 200%

Declaration of Dennis W. Jackson

dated peptember 12, ZO0 1 App 4A)

App |

IN THE UNITED STATES COURT

Ol APPEALS FOR THE FIFTH CIRCUIT

HENTIERED: JANUARY 8, 2010]

CORLINE ALLIEN, Individually and on behalf

Ol all other similarly situated: ALL

PLAINTIFES LORENZO AGUIRRE

THEOTIS ANDERSON; GERARDO AVALOS

Hl AL,

Vilaintill Appellant

Welendant Appt be

peal from the United Stat District Court

|

for the Kastern District of Texa

belor JONES (hie Jude GARZA and

PIOWART. Cireuit dude

CARL Kk. STEWART, Circuit Judg

This collective action under the Fair Labo

Standards Act (FLSA”), on behalf of hourly

employees of McWane, Inc. (McWane’) ought

payment for pre- and post-shift time spent donning

and doffing protective gear. ‘The district court

rranted summary judgment on the basis that at each

plant there existed a custom or practice of not

compensating pre- or post- shift time spent putting

on and taking olf protective Peal We AFFIRM

1. FACTUAL AND

PROCKHDURAL BACKGROUND

McWane operates plants that manufacture

cast iron pipe and fittings. The hourly employees at

McWane’'s plants wear protective gear while at work

elasse

t

including hard hats, steel-toed boots, safety

and ear plugs. ‘This appeal involves hourly worker:

at ten McWane plants that operate under collectiv

bargaining agreements (‘CBAs’). Different CIA:

govern each of the plants, and workers are employed

subject lo the terms of then respective CBA. Three of

the plants operate under CBAs that expressly

exclude compensation for pre- and post-shift donning

and dolfing of protective pear; the other seven CBA:

do not addr pre- and post-shiit time spent puttin

mn and taking off provectlve yea]

I hie worket OT tne plant are paid by the

hour, based on shift or line time. lune time refers to

the practice of measuring the shift a tarting when

the first item hits the processing line and ending a:

(he last item leaves the processing line. None of!

MceWane's ¢ mploy at these plant s have CVC?!

received Ompensation for pre and posl hilt

changing — time Union representative and the

employes attest that they were not aware that the

pre- and post-shift changing time was potentially

compen able under the FLSA Compen ation {0}

uch time was never discussed in union meetings o1

In meeting between unmon representative and

VieW ane Including Uti meeting where the CBA

were nevotiated

Plaintiffis-appellant (collectively lien )

filed their collective claim against McWane, on

behalf of over 2,100 McWane employe ek under

U.S.C. §& 207 and 216(b) of the FLSA, They sought

compensation for time spent putting on and taking

!

olf pear before and after their scheduled shifts. Thi

1} l plant I { a B d not 1d)

ti | pre ind |} t-shiit d i nd dott I

\ ler Py 1 ly ey }

(2) nion koundry ¢ OMmpany (Anniston, Al,)

( Vl & H Valve ¢ ompany (Anni ton, AJ

(4 Kennedy Valve Company (Mimira, NY

| V\ ifit ( | Pre l P iy ( tlh} 1)

Birmingham J

({ Clow Valve ¢ OMmpany (Oskaloosa \)

(Clow Water. tems Company (Ur i ton, Ol}

App. 4

district court conditionally certified the cass

collective action. McWane moved for summary

judgment, and the motion was referred to the

magistrate judge. Relying on Anderson v. Capl

[ric 488% }'.3d 945 (lith Cir. 2007), the magistrate

judge recommended that summary judgment should

be granted because § ZO3(o) of the FLSA wa

applicable. Allen filed objections to the mapistrate

recommendations. ‘The district court considered and

overruled Alle n Obye ction: ; adopt e| the Wa?) Lratle

judges recommendations, and pranted summary

judgment in favor of McWan Allen timely

aAppe ale qd

i] DISCUSSION

his court reviews a district court prant ol

Ubmaa ry judgment an frLOVO, applying the Alli

standards as the district court. McGavock vo. City of

Water Valley, Mis: 4D)2 F.3d 423, 424 (5th Cn

2006). Summary judgment is warranted when ‘thi

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant |

entitled to juadgment as a matter of flaw.” IED. kh. CI\

P. 56(c). The moving party has the burden of

demonstrating that there are no genuine issues ol

material fact in dispute. ffarvill vu. Westward

Commens, L.L.C., 433 ¥'.38d 428, 4838 (5th Cir. 2005)

~ £ a Court resolve any doubt and draws all

reasonable inferences in favor of the nonmoving

party.” United States ex rel. Longhi v. United State:

575 F.8d 458, 465 (Sth Cir. 2009). “Additionally, we

construe the FLSA liberally in favor of employee

McGavock, 452 F.3d at 424

tthe FLSA, which allows for the exclusion from thi

MpuUulablon Ol nou worked unde cCervain

Ircurnstan Ol tine pent changing cloth at the

beyinning or end of cach workday. The controlling

issue 1s Whether a §& 2ZO04(0) “custom or practice” of

non-compensation tor such time existed. In addition

the party dispute who has the burden of prool

uUpaer 403(0) and whether material 1 Li Ol fact

(Custom oO} Practice of Non

Compensation under § 203(o0)

rh Meal Labor midard ct Oo] 11038]

Lablishe the general rule that employe must

recer;rvi vertime compensation atl one and one-half

limes the regular rate for hours worked in excess of

1) hours during a seven-day workweek. (McGavock

mp y ere engaged LT) eee bart

COMMCKCE additional Lpoprii ibality LO

mployee pul uUaAnt Lt it) { puuenit

1) lexcept a otherwisi

yrovided in this section, no

employer shall employ any

Ol Nl employee Who In

inhy workweek l envaurved

In commerce or in thi

yroduction of good for

[Tidliaeer UA | I

produ ion Ol

QmmMerce lor a rK Wwe

longe) than fort nou)

unk uch npl

! ClVve Compensation $f

I employment in

tthe hou LDOvVve | ne

{ rate not Ie Lnan I

nd oO] hall 1)

ular rate { hich }

I] ploy

lJndey rt s.f IO), the tll pel

clothes is to be excluded from the meusured workin

lime {for purposes ol § ZO7/] if it has been excluded b

custom or practice under i bona tide collective

bargaining ivreement beyil 2% ith frie Ab}

hid 4/747, 479 (oth Ci (0) ] ) Peie {} )

Lal

Hours Worked.--In determining for tl

purposi ol sections ZO6 and 207 of th

title the hours for which an employer

employed there hall be ¢ elhaded i]

Line ent mn chanru clothe

ishing at the beginning or end of c}

workday which Vi ( haded ron

measured Working Lirne hurine Urn

veek involved by the « pre term rt ¢ .

j

t t

fate ridpt

ci bona baie

would make

Haim tha

yost-Shilt) ch:

the LSA,

FOuUIaLION

iil i J¢

thie court

This court addressed a related issue in Seystl

had a right to compensation for

UNION and the employer

CBA

Vhether ¢ mploye C

changing time where the

question during

ultimately remamed

COT\¢ luded

parti

the A after th

enc }J)

the matter, re

Lom oO!

for thie

ulted in a “cu

practic cOmpensaliny the employee

chanving time. and therefore & ZOS(o) barred claim

for back wave for such time. /d. Here, unlike in

: ) of w he ther MeWane

Kejul, there wi

houlda COMpel i : plamntills 10) uch

lothes chanyving time

|

pecific qui

mploy {

] Ul (| COMpen

nanvinyg time

practice

LO 1nd that

The ‘Third

in orde}

ted pursuan

v. Cas

4 /

VWJLCLET SOT

() LY0O7)

(l Ith

uncon

not compen

M’hilade

Ollice! lol Unio! Ligne fo!

en Phila leIphia

Css

LO COmMpen

ident propo ed

Vhilade Iphia

Relations Administrator that change time be

compensable, but the union did not make thi

request in formal CBA negotiations; (4) the union

did, however ask for and recey a uniform

naimmtenance allowance and (5) the UNION Neve! filed

: grievance or demanded arbitration based on the

non-compensability of change time Turner, 262 3d

furner plaintill made an argument

articulated by Allen, that “a

of non-compensability cannot

unt

pecifically

negotiation and then (¢

the nepotiator at 226. Rejecting

(hi Appproa 1) thi ‘Third /| held that the

plammtifls and their union acquiesced tl

municipal vovernment thirty-year pols

Limi ld ‘il

Pyrite

collective-bargaining apreemen

placing undue empnasi

unde! al bona hae

Darvalniny ay ment W hile

yr practice

lective-bargainineg

tom O! practice

formal

i1on

{App 12

contrary, we view the phrase as simply

restating the well-established principle

of labor law that a particular custom o1

practice can become an imphed term of

a labor agreement through a prolonged

period O1 acquiescence

at Z2b6 The JVurner court also rejected the

irgument that the plaintiffs had an antecedent right

lo payment under the FLSA such that they could not

icquiesce to non-compensation without the issue

being negotiated, noting that §& ZO3(o0) itself define

What work time is encompassed by that right to

payment. /d. at ZZ6-27/

1y) Anderson the employe: had not

mpensated the employees for time spent donning

nd doffing protective gear for approximately ten

a) iH OI Gd at 95%. Additionally the court

uned for purposes of its decision that every CBA

aQuriny the relevant time period had been ;: lent as to

compensalion ou changing time, and a umed that

the partie had never discussed the policy Id. at

the Anderson court followed Turner, also

rejecting the argument that a custom or practice

Inde! & 4O3(0) Cannot exist unles: the parti

nevotiated about the non compensation pol y. dd. at

958-59 Relying apain on a common sense

unae!. landing ol thi Statute § language, We bye heve

LOAE 2 POey CONCCTIHINE Compens ation lor clothe

changing, written or Unwritten, in force or effect at

the time a CBA was exccuted satisfies § ZO3(o0)

requirement ol a cu Lom or practice under a bona

bya CLA ld “Ab Crs ray nevollatlion

thi Instance equate to ignorance of the polhcs

cannot 31n

The tleventh Circuit noted that the 1ssue in

inderson was not controlled by the Fifth Circuit

decision mn lloove) t Wyandotte Chemucal:

Corporation, 455 F.2d 387 (5th Cir. 1972). In floover

another action to recover overtime pay under the

LSA, this court held that employees were not

cnlitled to additional compensation for the extra

eight to ten minutes of clothes changing time that

Lhey requested during collective bargaining

negotiations, but which was not incorporated into

the executed CBA. J/d. at 388. The custom and

practice of the employer for approximately fifteen

years had been to pay for fifteen minutes of changing

ime. During the most recent CBA negotiations, pay

for 23-25 minutes of time had been requested but not

adopted Hfoover held that the request did not change

the custom o1 practice which wa LO pay only hoy

hiteen minut of changing tim ld. at 389

\ithough th employer had greed to pay tor

changing time, where the ¢ mployee: raised the issu

during CBA negotiations but there was no ¢ hange 1n

‘i practice hy the employe) or change to the CBA on

the } ue, the relevant custom of nor payment lor

clothe chanving time over liteen minute remained

\ilen both criticize the reasoning of Jurner

ind Anderson and tri to distinguish them. Allen

observe that in Anderson the plammtill did not

contend that they lacked notice of the relevant

compensation policy, whereas here the employe

and their union representatives were unaware of the

- potential for compensation under the FLSA. 4&#

io8d at 959. However, neither Jurner nor Anderson

address the employees awareness of the law, much

less find it to be a controlling factor in their holding

Anderson merely observed that the plaintiff: were

aware that the company had a policy of not paying

for pre- and post-shift clothes changing tim¢ ld

Similar facts were present in Turner. 262 F.3d at

225 foth courts concluded that lence by the

employees and their union as to the non

compensability of this time when the CBAs wer

executed meant that a custom. o1 practice ol

nonpayment was established pursuant to a CBA

and thus the time was not to be calculated as “hour

worked’ under §& ZO3S(o0)

Allen rehes heavily on the reasoning employed

by Kassa vo. Kerry, Inc., 447 F. Supp. Zd 1063, 107]

(DO. Minn. 2007). In Aassa, the defendant moved for

summary judyment based on & ZOS8(o). The court

voiced its agreement with Jurner, and determined

that § 2Z03(0) may apply even where non-payment fo1

changing time was never raised in negotiations. ‘The

court then identified three elements as essential to

determine the existence of a “custom or practice

under § ZO3(o): time, knowledge, and acquiescence

ld. at 1070-7) (Gelying on Detroit & Toledo Shore

Line RR. Co. vu. United Transp. Unton, 396 U.S. 142

154. (1969)). Kassa assigned the burden to. thi

delendant LO how that II policy of non

compensation for clothes-changing time lasted for a

sSuificiently long time, with sufficient knowledge and

ICG UIESCENCE 1) ithe} employes that the pohe

hecame cil} mmplhicit term il “Cu Lom oO} practice

unde! th ( BA ld ail 1Q/] in Ka (l Lhe record

established that the non payment by defendant had

occurred for six years and the union had neve

complained about non-payment when executing the

(3A. ld. The district court found this insufficient a

i matter of law to establish a custom or practice, and

denied Summary judgement

Yen also rehes on the Supreme Court

tatement in Sarrentine v. Arkansas-Best Ireight

tem, Inc., 450 U.S. 728, 740 (1981), that “FLSA

ri hat cannot be abridged by contract or otherwise

waived barrentine addressed whether

employees at a unlon-organized plant operating

under a CBA could sue their employer for violation

of the minimum Wafe provision of the LSA. The

CBA in Sarrentine re quire d the ¢ mployes to submit

the claim to a grievance committee; when they did

oO, the committee reyected their claim The Court

held that the nmght to sue for the violation of the

LSA could not be abrndged or waived. Id. at 740

Phere a iynificant distinction between the

mimninium wage provision at issue in /arrentine and

(he appheation of § ZO8(o) in the instant case: the

MLSA rights at issue in arrentine are independent

f the collective bargaining proces: Id. at 745. Bs

contrast, under §& 2038(0) the right to be paid for pre

or post-shift changing time may be abridged by

contract a bona fide CBA. See also Livadas |

Bradshaw, 512 U.S. 107, 1381-32 (1994) (addressing

question of meaningtul bargaining under the

fational Labor Relations Act, referring to & ZO38(o) of

the LSA a AT} example ol a “narrowly drawn opt

OUL Wrovision and noting employers have full

protection of the minium tandard absent any

reement lor meth ng different

App l6

We are persuaded by the reasoning of th

Third and Kleventh Circuit and join them = in

holding that even when nepotiations never included

the issue of non compensation for changing time, a

policy of non-compensation for changing time that

has been in effect for a prolonged period of time, and

that was in effeet at the time a CBA was executed

iishhes §& ZOS(o)s requirement of “a custom = o1

practice under a bona fide’ CBA. See Anderson, 48%

hdd at 958-59 (policy of non-compensation had been

in place for at least ten years); 7Jurner, 262 T°.2¢ at

220) (policy of non compensation had been in pla (

lor thirty years). In uch instance regardl of

whether Uh parti nepotiated revarding

compensation for changing time, acquiescence of the

employees may be inferred. By contrast, where there

have been no relevant negotiations and the facts do

not demonstrate that a policy of non-compensation

lor changing time h: been in effect for a prolongs d

period ol LIM, other evidence Oo] knowledge ana

icquiescence by the employees will be required. See

(Gratewood | Koch bkoods of Mi , boo FF. ji upp. 44

687, 698-700 (S.D. Mis 2008) (holding that even in

the absence of a long-standing tradition of non

compensation or nepvotiatlon lor compensation ol

lime spent changing clothe “when employees and

union representatives are conclusively aware of thi

facts surrounding compensation policies lor changing

clothes at the beginning and end of each workday

md reach an agreement under a CBA that does not

compen itt employee lor the time i practice CxIst

lon ‘ mar re " a COTMpPahy

avion Lime mwanvINe

allowing the court

Ol and acqgqul

‘ pA

BA ¢

explicitly di

gotiating 1. Mcw:

at the partie CUuStLOmM O

compensation under the agreement

lt ais und pul d that McWane

ited af employee for changing

1965. After more than

nies

and

On-compensation

COT) bude Mew alli hea

13 surden ol Prool on the

Applicability of § 203(0)

\llien urges the court to characterize §& 2ZO3(o)

iS an exemption, and argues that the application of

an exemption under the FLSA 1s an atflirmative

defense for which the defendant has the burden of

proof. Allen relies on Kassa’s holding that it is th

defendant : burden and on Supreme Court

precedent mdicating that « <emption art Lo be

narrowly construed avalnst Lhe employ S et

Arnold v. Ben Kanowsky, [ne 61 U-! KBR ROD

(1960); Aassa, 487 F. Supp. 2d at 107]

1 hie Latute however, demonstrat that L\)

is a list of definitions and ubsection (0) addr

how to detine and calculate “hou worked in

contrast to § 2138, which 1s titled “Ikxemption Ay,

GROG Q Z2)).3(0) ee also Anderson I8& FF Sd at 95%

(noting that § 20% provides a list of definitions, but &

13 1s titled “Ikxxemption and concluding that §

-OG(0) 1 nol an allirmative defense) furne? OL

lsd at 225-26 (plaintiffs had burden of persuasion

is to whether or not a custom or practice under §

Z03(0) existed). In addition, the “exemption Ubi

mupreme Court refers to as allirmative detfensi LO

the ft ioA all I ¢ late] LO tne total ex hu ion Ol} {

| i 4

particular worker or worke! from certain [J \

protections|,}) not “to the exclusion of only yn

Le a Lit LLLES If I1) I F \ (dam { ( reile Larle 1 |

| 11321, 1325-26 Cred. Cir. ZOO6)

rhe only circuit court holding § AUT‘ )LO De an

exemption is the Ninth Circuit. Alvarez v. L13P, In

9 F.3d 894, 9O5S (9th Cn (003), affd on other

POULT f LE? ric ( Alvare I46H ZI (ZU)

(concluding that & ZO3(o) constitute an exemption

from FLSA requirements and } an attirmative

dete 1} Ss QT) which thie che fendant bye il thie burden)

howeve) In Anderson Chie iMleventh Circuit

persuasively critiqued the Ninth Circuit

characterization of ° 4W).3(0) i an exemption

Ande} r Toto oa at YO/. Th \Inderson court

noted that all the ca on which the Ninth Circuit

rehed concerned & 213 of the FLSA, which 1s titled

lxemption ld he court further observed that

hhfjad Cong) ought to bestow upon % ZOUG(0O) the

Liye talus as the exemption et dorth in & 213, i

easily tuuld have amended § Z16 instead of & 203

which titled, not comeidentally Definition lad

beyond r peating criticism ol] mat reasoning in

\ndersor Lilen do not otfer further urgument a

Lo why & O3(o) is an allirmative defense allocating

the burden of proof to McWan«e

thu here \ilen had the burden of pi Ola LO

nether or nol a custom or practice under & ZO38(o)

existed. See Adan 17] f.3d at 1426 CAn employes

ho bring ut for unpaid minimum wages o7

lnpaid Overtime Compensation has the burden ol

proving that he performed work for which he was not

properly mpensated.’) (quoting Anderson v. Ml

( ChILET | Polters (0 20) { Ne. HOU HOO-G | (1946))

(Once Vic Wane itished it Uimmary judgment

ivgation of howmeg thicat \ilen nad fasled LO

| A

Upportl Some { ential element of 11 Cast Allen

then had the burdel QO] howlne? that eat clothe

hanving aor not fall anto the Ct OF achivill

LION WIOO La V\ithough Vien rey ue that

}

LA

VV Alle Cannot pl i] I [)]

f ide! { () thie I Imbe) I LI i } j !

I n-pay ime it Dee! f | { | I mu |

[f prool IS on LAL nj, we reject [the] j ument that

N\A i

Ummary yuarmMen [ UvViICWane} \ 1m] pel

ley L1y) Ll] { | I

pre ented It Wn emp f Labl ii Ul [ Li Lidi I

KNOWINY 1 rCqul { pl a !

changing time ind that tl ed puis

reve! i} | lamary 1 ‘* yy) il L | leciara

nowevel om strate on] t} tf the ¢

(heir union representat VO! inka f thes

unaware that the Cy MOL I Lr) npel Led |

frie Line ‘ ( ( (,;cl ) t | ] {

hen em Cr nd union } l

Nar i ¢/ fact int nd pensal!

| ate Or nan 1} { (1) | | (

Inder tt! COI5A UlLIicie] I

dele ys mph iaded VV I | tt!

ePMployes na Chedl ‘o ntal

inoran i tf I [ } | pel

reate j enseee l | | } ! ' }

evidenc is been proffered |

leclaration I irre | rif I

nan Lt) | | { ibd a I

leWane did not LO! Crs Uae f prol

period 1] 1 io

STATES COURT OF APPEAL

FOR THE FIRTH CIRCUTT

UNITED STATIS DISTRICT COURT

PORK THE KASTERN DISTRICT OF TIXAS

MARSHALL DIVISION

oy) ae

pp 20

IN THE OUNPTED STATES DISTRICT COUR

POR THE KASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

KEPORT AND RECOMMICNDA'TION OF

PHE UNITED STATES MAGISTRATE JUDGE

Introduction

Mead Labo standard Act Cid,

ré Uf) payment QO] Overtlime«s COMpen iLIOn

pendimy on tM number of hour worked pf it)

i} Ce ra. Co} My | { AS C )yye

1S101 f the tatute lude iro} 1]

my Liat I I ! rked iy) byyie pen

Nn thie QO) SN) it tp bevini }

or} a iW there « Mither

bey budin uch time in a col

I ree t (CH ) ) iA USLO! i

1 f nor mpensatlion for such time under t)

(7 J y | { VJ.5CO) At ] i@ in the aetendant

mot 1Q)] uromary judgment 3 whether:

practice Of non-compensation exist n thi

| I) 1) Uma ry judgment recora

| | beht most lavorable to the p aintill

rt peda that ucn custom or practice

J i

the defendan first motion for imma! udgement

AES IUD) Dye rranted

acts and procedural posture

In this collective action brought under thi

Ml oA ae court previously issued an orde)

fitionally certilying a Cla oO] Opt-in plaintill:

mployed by the defendant Phe action presently

i! yive over Z2Z200 plaintill from twelve different

ia Lite 0] the defendant I he rele Vant time period

ercd by the certification order 1s September 11]

L003, to the present. Ten of the twelve facilities are

unionized plants, but one such unionized facility had

1} OpU-In plaintill who met the Cla definition

ae rid j j (| moyect oF The pr ni

| i the delendant uMmionized ftacilits

pol I rl or] i ind Operatl ubject’ te Liye

Crim: oO] CBA reat d between the compan nd

UI Inion represent the hour] yrkers at eucl

hit Phe declaration ibmit 1in support of thi

not mmal yuaymMel thdish that CBA

rent | (the toll ny facilities operated by th

le] lan Be il Ve (2 (ilo Wale) Co)

nned | | ( wet ( hron ripe

{ 1A { Hy] | t i 1]

j | ( { f ( )} |

Uy Oro)

; | , , | {| Ti lant !

)) ! ] | ral J | ! | i I i

f () | |

otat Cast iron ripe { OMmpany (7) ‘lyle 1 ape

‘The CBAs in effect in three of the defendant

plant pecifically addr Lhe issue whether

changing clothes 1s compensable. In each case, the

CBA which have been in ellect since (1) April |

ZO0]1 at the ‘Tyler Pipe—Pennsylvania Vlant (Z)

March 26, 2005, at the Pacific States Cast tron Pipe

Company; and (3) July Z, Z006, at the Atlantis

tates Cust Irom Pipe Company, specifically exclude

time spent changing clothes from the computation of

hours worked by an employee. Plaintiffs Response to

tuon for Summary Jdudyment GFLOO) at 4 4

in iil O] Iie other J biivie L fie (7) Al

lent Lyi pee Li j oT vhether time pent

hanging clothe compensabl it not disputed

I Cver, thal @a » uniIOnIzed facili 1) had a ©]

eligct sil it | ( 1997 (and in me casi even

} 1) if it disputed tha employes In

hor purpose of this motion 1o1 ummary

udyment, the court accept i true the tLatement

W ILné ( in thew

to the motion for summary

the plam ill have tendered

Ublon representative

declaration In response

irtrcudaay

qd by variou

ate that the respective union

{ hilt clothe

dotting Ol

declaration Feat

AW that pre and po

| i

Aris File (IVOIVING Lhe a BOSC Bese and

protective gear could be compensabe under certain

recumstanee Mores r the court ac Cpt: true

| i

alten ! mad ! L! decia tion that the

I i | { ports Ol

l ] Ll I i it i] tea Ii ( } I

l¢ I ] ! ! ! ] mie | pec il} {

Lil il i | ( I UL! 10 tT !

I | ] i { i I I ot petent |

I ni tha irred betor 1 I

| { i} i hese I LILO!

1S that tl 1m the pacit

| I I I I I Il

tt is UB

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issue Of donning and doltfing of protective pear wa

neve! discussed in union meeting with

management during the nevotvratlion Ql Lhe

respective (CBA Ld price these statement (he court

conclude that no genuine i Ol matertal fact

exist as to the application of § ZO3(6) and according),

recommends that the motion fos ummary judgment

e prante d

m' Summary judgment standard

summary judgment is proper, pursuant t

rule GC) when Lhe pleading deposition

nswers to interrogator ind admissiol on file

LQ ethe. NALne mat affidavit i] iy) 1G) there l I}

enurme msue as to any material fact and that the

moving pal is entitled to judgment t matter o

hav I | ) It ( }? wt (Clelote ( ry { _atreéetl

1 | 1 y (999256) I he if irit Deal Liye

Initial burde. L¢ demonstrate Ut) bsence I

enul Ol material fact. Celotex, 4% if

; 1] L} movant dischat tt burde)

Gey na On. &3 1 | LION OT tne 2 'D tive Durde!

Ol prool. Ii the 1 i@ 1S one Ol nicl non-H rit

| Uh burdel [| ol then t! in pat

may aischary il burden b | it) | Lf) il )

evidence iIpportin in lemes r the n

movant claim r deien t} :

hich th m Deal t] burden 1 prool hen

(ti ri) int ha i} ifirn l pdentlal oe i|

den trate the bsence of enuine [Ol

trial I { i (nee [ I iil I

wschal | { “Umma judy I it raen Uf)

burde hiits to the non-t! ins % iemonstra {|

Huating the evidence the court view all of the

evidence mh OL de hight most Pa rable LO the MOd)

moving part Celolex Corp hfe 4A at S2Z2-24

|W Ih re the record taken as a whole could not lead

l tmer of fact to find for the non moving

party, there is no venuine issue for trial. Matsushita

ful Mri (io. v. Zentth Rado ¢ O'rp., iD UU. ol4

()9086) Qnternal citation Omitted) Bbearme thi

tandard 11) mind thie COUrl NOW turn to the 4 Lit

j Discu On

I] gdelendant ask LO) ummal Ud) nt

thi po L hie haim O] ull plaintiff working 1!

LLIOM ‘4% phida OL thre defendant pursuant

eCctr c | Lhe ! Labo tandard

mendment OF 1049. PUD. } } (cl),

Lal ILO yi | 14) adailied as (

} ha itu I 1a

I \ rr] qaeterm) I if

pul (10! UO and 20 it!

title U! lO} hcl rie

| 1, tne) heal huded

pent heal i!

I U] eevee Ol

1c] haded |

rK 1 ti) i)

I it ee | I I i |

y | 4 8 FAD MACON The Department of J Vwoor | 10) ]

recently issued an opinion confirming that “changing

lothe mclude Lr putting Or) and bakiny Ol! oO]

Pprolvective ifety equipni hit Lypical \ Worl

employes 1h) Ly he meat packing madaustry

Defendants Motion for Summary Judgment, f \

i thie Ly pr Ol protective Vey quipment

misidered by the DO, imechuded mesh pron

leeve and lo 1 LI 1 I ra | boil

pnd enn wa Fa |

it i Co [? 1 wJ4

ee 6 ay ()() rt. der t_[ WIL | IOS)

t | urt app 1 § ZOG(0) to th laims of plaintiff

I Wed to) ertis compensation for time spent

lonning and dolling protective re odie Int held

that (°3(0) changing clotl proviso red

[| don I) md doltlin Ol pl { { ( ! nd tt |

Lor r poli bed t U1 riprial

nied compen { IVil ull I

1 I I eeeuee iit | i

pute in tl | hethe: |

I cl t} {

bact t fh I that

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rKe! il

mipen (i0n 10) I Lin j)t il l

Litt I } Lol) rote | I I

( [) : 4 it) |

LoVe Jie } | | { iJ i 1} rict

Poet

166, slip op

venth Circuit

the employes

Opinion tectle

lolhing (

orn by

t tae

pl yntitt

tine Of

plaiatill Were

Clothe unde

turned to thi

barred

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IN THE ONITED STATES DISTRICT COURT

FOR THis KLASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

Yo HAHIBIT 2 TO PLAINTIE

NH IN OPPOSTTION ‘TO DickicE NDA

MOTION FOR SUMMARY JUDGMI

CORLINE ALLEILN, IT A

PLAINTIFES

ICWANE, ING

Dhobbl

CIVIL A

JURY DIEMAND

DECLARATION OF DENNIS W. JACKSON I

SUPPORT OF PLAINTIFFS RESPONSE TO

DiEkKENDANTS MOTION FOR SUMMARS

JSUDGMEN'I

bail 1Lity

int time

Lt my facility Cry loyet lon and dolt

quired pel onal protective equipment

Which can include: hard hi Carplug

hicld

1th 1d

iY, paper

lL toed

WIUN

fame

bach bri

Mon

either of thes thingy at the time

irlicipatle din negotiating the collects

iIrgaining apreement 10 my facilites

did 10) P , ul’ Ol

nd dottin

{fie rite

true mnd