Petition for Writ of Certiorari — Kraft Foods Global, Inc. v. Spoerle

Supreme Court brief2011

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

FILED

~ OFFICE OF THE CLERK

Dn The

Supreme Court of the Anited States

— é iti

KRAFT FOODS GLOBAL, INC.,

OSCAR MAYER FOODS DIVISION,

Petitioner,

JEFF SPOERLE, NICK LEE, KATHI SMITH,

JASON KNUDTSON, on behalf of themselves

and all others who consent to become plaintiffs

and similarly-situated employees,

Respondents

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

SS ee

DANIEL A. KAPLAN DAVID B. GOROFF

Counsel of Record FOLEY & LARDNER LLP

FOLEY & LARDNER LILP Suite 2800

Verex Plaza 312 North Clark Street

150 East Gilman Street Chicago, Illinois

Madison, Wisconsin 60654-5313

53703-1481 (312) 832-4500

(608) 257-5035 dyvoroff@foley.com

dkaplan@foley.com

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Through decades of labor legislation, including

the National Labor Relations Act, 29 U.S.C. §151 ef

seq. (“NLRA”), the Labor Management Relations Act,

29 U.S.C. §§$141-97 (““LMRA”), and the Fair Labor

Standards Act, 29 U.S.C. §201 et seq. (“FLSA”),

Congress has extolled the sanctity of the collective

bargaining process and made the promotion of collec-

tive bargaining a central legislative goal. To best

achieve this objective, Congress made management of

collective bargaining exclusively subject to federal

law. In that same spirit, Congress passed Section

203(0) of the FLSA, 29 U.S.C. §203(0) (‘Section

203(0)”), which specifically authomzes representa-

tives of labor and management, through collective

bargaining, to agree to forgo compensation for

clothes-changing time (“Clothes-Changing ‘Time’”)

that any law might otherwise require. Here, pursuant

to this statutory scheme, Petitioner Kraft Foods

Global, Inc., Oscar Mayer Foods Division (“Kraft”)

and its union, the United Food and Commercial

Workers Union, Local 538 (the “Union”) determined

more than 25 years ago that it was in their common

best interests to forgo such compensation in exchange

for higher employee wages and other perquisites. In

light of these facts, the question presented Is:

QUESTION PRESENTED — Continued

Where FLSA Section 203(0) specifically allows

unions and employers to resolve through their collec

tive bargaining agreements (“CBAs”) the issue of

whether Clothes-Changing Time must be compen

sated, can a state law or municipal ordinance inter-

fere with such agreements, or does federal law

preempt state laws and municipal ordinances that

would otherwise override such terms?

LIST OF PARTIES AND

RULE 29.6 STATEMENT

This is a petition (“Petition”) of a decision in a

suit brought as a class action by four named plaintiffs

(the “Named Plaintiffs”) on behalf of themselves and

a class of 782 members who have designated the

Named Plaintiffs and class counsel as their repre-

sentatives in this litigation. By this Petition, Kraft

challenges the order below as to the entire class.

The caption contains the names of all the

Named Plaintiffs as well as of the Petitioner.

Pursuant to Rule 29.6 of the Rules of this

Court, Petitioner states that Kraft Foods Global, Inc.

is a wholly-owned subsidiary of Kraft Foods, Inc.,

which is a publicly-held corporation.

TABLE OF CONTENTS

QUESTION PRESENTED.......0...0..0cc0ccc0ceeereeees

LIST OF PARTIES AND RULE 29.6 STATE-

MENT

TABLE OF CONTENTS .............4:

TABLE OF AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI .

OPINIONS BELOW

Petr Sy pt, ae eon eee

STATUTORY PROVISIONS INVOLVED

I. Facts Material To The Question Presented ...

A. To Comply With Kraft’s Standards

And Applicable Law, Facility Workers

Wear Certain Clothing To Promote

Safety And Hygiene

For More Than 25 Years, Kraft And

The Union Have Agreed Through Col-

lective Bargaining That It Serves

Their Common Best Interests To Forgo

Compensation For Clothes-Changing

: 5

Time

Respondents Sue, Claiming That Wis-

consin Law Overrides The CBA’s Treat-

ment Of Clothes-Changing Time

TABLE OF CONTENTS — Continued

Page

D. The Courts Below Rule That States

And Municipalities May Override CBA

Provisions Regarding Clothes-Changing

Compensation

II. The District Court Properly Exercised

Federal Jurisdiction

REASONS FOR GRANTING THE PETITION ...

I. Review Is Warranted Because This Case

Presents A Question Of Exceptional Na-

tional Importance

A. For Decades, Congress Has Extolled

The Sanctity Of Collective Bargain-

ing And Directed That It Be Regu-

lated Exclusively By Federal Law

1. The NLRA

2. The LMRA

A hy ©” REI neat een owner ane

Congress Passed Section 203(0) To Al-

low Labor And Management To Re-

solve A Contentious Issue Through

Collective Bargaining

lL. Section 203(0)’s Legislative History

Shows That Congress’ Primary In-

tent Was To Defer To Collective

Bargaining

Section 203(0)’s Text Requires Def-

erence To Collective Bargaining

II.

TABLE OF CONTENTS — Continued

Page

C. This Case Illustrates How Allowing

CBAs To Resolve The Issue Of

Clothes-Changing Compensation Fur-

thers All Parties’ Best Interests..........

Review Is Warranted Because The Deci-

sion Conflicts With This Court’s Prece-

dent And Misinterprets Federal Law.....

A. LMRA Section 301 Preempts State

Laws And Municipal Ordinances That

Override CBA Determinations Re-

garding Clothes-Changing Compen-

oe otc es aie eevdeanexduadoane

B. State Laws And Municipal Ordinances

That Override CBA Determinations

As To Clothes-Changing Time Are In

dependently Preempted Under The

Doctrine Of Conflict Preemption.........

C. The Garmon Doctrine Independently

Requires Preemption..............s.cecceeeeeee

D. The Seventh Circuit’s Reasons For

Avoiding Preemption Each Fail ..........

1. The Seventh Circuit Misinterpreted

Section 203(0)’s Relationship To

Other FLSA Sections ......................

2. The Seventh Circuit’s “Multiplier/

Multiplicand” Reasoning Cannot

Withstand Scrutiny ..........cccscscscceees

3. The Seventh Circuit’s Speed Limit

I NO a cs assccssusaxtesivsvacsacventes

—

TABLE OF CONTENTS — Continued

Page

This Court Should Grant This Peti-

tion To Reverse A Dangerous Prece-

dent And Provide Clear Direction On

This Vital Issue

l. If Left To Stand, The Decision Will

Nullify The Purpose Of Section

203(0)

If Left To Stand, The Decision Will

Undermine Workers’ Confidence

In Unions And The Collective Bar-

TONITE FIG vain ricnsesasscscuscsenccess

If Left To Stand, The Decision Will

Allow States And Municipalities

To Improperly Deprive Management

And Labor Representatives Of The

Benefit Of Their Bargains..............

If Left To Stand, The Decision Will

Open The Floodgates To Litigation

Tnat Congress Meant To Close.......

If Left To Stand, The Decision Will

Undermine The Portal-To-Portal

CEP UIE Gc bcnssccesciavesesersvexssans

APPENDICES

Spoerle v. Kraft Foods Global, Inc., 615 F.3d

427 (7th Cir. 2010)

TABLE OF CONTENTS

Continued

Page

Spoerle v. Kraft Foods Global, Inc., 626

F. Supp. 2d 713 (W.D. Wis. 2009) .... ..App. 9

Spoerle v. Kraft Foods Global, Inc., 527

F. Supp. 2d 860 (W.D. Wis. 2007) ... ..App. 2

29 U.S.C. §151 App. 59

29 U.S.C. §157 App. 61

29 U.S.C. §158(d) App. 61

29 U.S.C. $188 ..... .App. 63

29 U.S.C. §203(1) ..App. 64

29 U.S.C. §203(0)........ .App. 66

29 U.S.C. §206(a)(1).. .... App. 66

29 U.S.C. §207(a)(1), (2)... .. App. 67

29 U.S.C. §218(a)...... .. App. 68

Wis. Stat. $103.02............. .. App. 70

Wis. Stat. $108.08 q.csccoccesscevsscccces: ..App. 71

Wis. Admin. Code DWD §272.12........... .App. 73

Wis. Admin. Code DWD §274.03................::000. App. 74

Excerpts from House Debate on Amendments

to Fair Labor Standards Act dated April 10,

1979 (Statements of Reps. Herter, McConnell

a ira areas sat canananedsonenbeoteavenssadesins’ App. 75

Plaintiffs’ and Defendants’ Joint Proposed Stip-

App.

ulation of Facts and Conclusions of Law

TABLE OF AUTHORITIES

CASES

14 Penn Plaza LLC v. Pyett, 129 5. Ct. 1456

SND siesésesechasucnecentadeaneserae aE

Adames v. Executive Atrlines, Inc., 258 F.3d 7

eo £6 Be : : 5 ) ee

Allied Structural Steel Co. v. Spannaus, 438

Cee, Bee CE Pe Pe ckenccodectsccuns

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

ROO orescnveisstecescuecconsnsveeesienssannets aaennaennmn |

Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th

Ee, SPENT D ncaccccdcvaddesedsuncessaacantaaaaee |

Anderson v. Yungkau, 329 U.S. 482 (1947)..

Atchley v. Heritage Cable Vision Assocs., 101

F.3d 495 (7th Cir. 1996) ..................

Barrentine v. Arkansas-Best Freight Sys., 450

U.S. 728 (1981)......

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

PO ED vocesecsesccaceveccisensnett \oketcuseksiousecebele aaa |

Bloate v. United States, 130 S. Ct. 1345 (2010).

Bonito Boats v. Thunder Craft Boats, Inc., 489

U.S. 141 (1989)............. sbSdapcducuaanacucese ;

Building and Trades Council (San Diego) v.

Garmon, 359 U.S. 236 (1959)....... eee 10, 32, 3:

Cannon v. Edgar, 33 F.3d 880 (7th Cir. 1994)..

Carbon Fuel Co. v. United Mine Workers of

Am., 444 U.S. 212 (1979)............

Page

TABLE OF AUTHORITIES — Continued

Page

Douglas v. Am. Info Te h ( orp ae i/7 F.2d 565

(7th Cir. 1989) 7

Fed Energy Admin { Algonquin S Nr. Ire

426 U.S. 548 (1976)

Fibreboard Paper Products Corp. v. NLRB, 379

U.S. 203 (1964) )

Franklin v. Kellogg Co., 619 F.3d 604 (6th Ci

2010).

Freightliner Corp. v. Myrw k, 514 U.S. 2380

(1995) 36

Geier v. American Honda Motor Co., Inc., 529

U.S. 861 (2000) 1G

Gozlon-Peretz v. United States, 498 U.S. 395

(1991)... 5

Hawatian Airlines v. Norris, 512 U.S. 246

(1994).... 9

Hill v. Florida, 325 U.S. 538 (1945) 50)

IBP. Inc. v. Alvarez, 546 U.S. 21 (2005) S

La. Pub. Serv. Comm'n v. F-C.C., 476 U.S. 355

;. \_ a ()

Lingle v. Norge Division of Magic Chef, In

486 U.S. 399 (1988)... 38. 39

Livadas v. Bradshaw. 512 U.S. 107 (1994) 0

Metro. Life Ins. Co. v. Massachusetts, 471 U.S

724 (1985) ()

TABLE OF AUTHORITIES — Continued

Mowry v. United Parcel Seri 115 Fk

(10th Cir. 2005)

N Yy. Tel Co i N Y. Dept Of Labor | +H)

519 (1979)

Pirant v. U.S. Postal Service, 542 F.3d 202 (7th

Cir. 2008)

Sepulveda v. Allen Family Foods, Inc., 591 F.3d

209 (4th Cir. 2009). cert. dented. 2010 WL

2420333 (Oct. 4. 2010) pa:

pamsters v. Lucas Flour Co

(1962)

Textile Workers v. Lincoln Mull

(1957)

United States v. Locke, 529 U.S. 89 (2000)

Wisconsin Dept. of Industry Labor and Human

Relations v. Gould, 475 U.S. 282 (1988) 10

rf EDERAI

28 U.S

28 U.S.C

20 3.

Liii

THORITETIES (continued

Supreme Court Rule 10(

X11]

TABLE OF AUTHORITIES — Continued

Page

REGULATIONS

Wis. Admin. Code DWD §272.12.........000.... eee. 2, £0

Wis. Admin. Code DWD §274.03...............cc cece cece ee 2, 29

CONSTITUTIONAL PROVISIONS

US. Const, Art. Vi, Sh ...0.000csc0:. RY one eek 38

OTHER AUTHORITIES

96 Cong. Rec. 1143S (IDES) .......6.06cccccvecsceee, cons hb, Ae

See. TE. Tee 0 RUPEE Pos ck veccusscedesansucvevcocenscntenss 15

Be, BO, DOO, FM ee Ce Bink ccccccccavacccacascncesussscevevesvns 17

HLR. Rep. No. 81-1455 (1949)..........cccrsecsssncosvessesessvess 20

Joint Hearings on S. 2475 and H.R. 7200

Before The Comm. On Education And Labor,

United States Senate, And The Comm. On

Labor, H. of Rep., 75th Cong. 22 (1937)

(Statement of Robert H. Jackson).......... spa 15, 16

U.S. DOL, Wage & Hour Div., Adm. Interp. No.

DER Cents FG, FIN, esc dcns css vececsesevesvevievecssssssees 21

U.S. DOL, Wage & Hour Div., Adm. Op. Ltr.

No. FLSA2002-2 (June 6, 2002) ........0...0..0..... 20, 21

U.S. DOL, Wage & Hour Div., Adm. Op. Ltr.

No. FLSA2007-10 (May 14, 2007)....... Yl Fa. Si enee 21

PETITION FOR A WRIT OF CERTIORARI

Kraft respectfully petitions for a writ of certioran

to review the decision (“Decision”) of the United

States Court of Appeals for The Seventh Circuit

affirming the judgment by the United States District

Court for the Western District of Wisconsin (“District

Court”), which held that Kraft, pursuant to Wiscon-

sin’s minimum wage and overtime law, must pay

employees in Wisconsin for all Clothes-Changing

Time, despite having agreed with 1tts Union for more

than 25 years to forgo such compensation in exchange

for higher employee wages and other perquisites and

despite controlling federal law that preempts such

Wisconsin law.

OPINIONS BELOW

The Memorandum Opinion of the Seventh Cir-

cuit (Appendix (“A”) 1-8) is reported at 614 F2d 427

(7th Cir. 2010). The District Court Opinion and Order

dated June 17, 2009 is reported at 626 F. Supp. 2d

913 (W.D. Wis. 2009) (A9-28). The District Court's

Order denying Kraft’s motion for summary judgment

is published at 527 F. Supp. 2d 860 (W.D. Wis. 2007)

(A29-58).

JURISDICTION

The Seventh Circuit entered its Order on August

2, 2010. This Court has jurisdiction pursuant to 28

U.S.C. $1264.

STATUTORY PROVISIONS INVOLVED

(1) NLRA 87, 29 U.S.C. §151 (A59-60);

(2) 29 U.S.C. §157 (A61);

29 U.S.C. §158 (A61-63);

LMRA §301, 29 U.S.C. §185(a) (A63);

FLSA §$203(1), 29 U.S.C. §203() (A64-65);

FLSA §203(0), 29 U.S.C. §203(0) (A66);

FLSA §206(a)(1), 29 U.S.C. §206(a)(1)

(A66-67);

FLSA §207(a)(1), (2), 29 U.S.C. §207(a)(1),

2) (A67-68):

FLSA §218(a), 29 U.S.C. §218(a) (A68

69);

Wis. Stat. $103 (A70);

) Wis. Stat. §109.03 (A71-72

Wis. Admin. Code DWD $272.12 (A73);

and

(13) Wis. Admin. Code DWD §274.03 (A74).

- a _

STATEMENT OF THE CASE

Facts Material To The Question Presented.

Kraft operates a meat-processing plant in Madison,

Wisconsin (Kraft’s “Facility”). (Plaintiffs’ and Defen-

dants’ Joint Proposed Stipulation of Facts and Con

clusions of Law, A79-93, 41, A79). The Named

Plaintiffs represent a class of 782 of the Facility’s

hourly employees. (A82-83).

A. To Comply With Kraft’s Standards And

Applicable Law, Facility Workers Wear

Certain Clothing To Promote Safety

And Hygiene.

As a processor of food products, Kraft must

comply with certain U.S. federal regulations. In

addition, as an employer, Kraft must follow safety

and health regulations promulgated under the Occu

pational Safety & Health Act. Kraft has implemented

its own Sanitation Standard Operating Procedures

and uses Good Manufacturing Procedures to reduce

the likelihood of introducing contaminants to food

products and the manufacturing process. (A83). Kraft

additionally has its own safety policies which dictate

the articles that employees must wear in performing

their duties. (A83).

The only articles required by Kraft to be put on

before the work shift and taken off after that shift by

Respondents are captive footwear, such as_ shoe

rubbers; over-the-calf rubber boots or work boots; hair

nets; beard nets (if an employee has a_ beard);

hardhats or bump caps; and frocks or career clothing

(collectively, “Articles”). (A84-86).

B. For More Than 25 Years, Kraft And The

Union Have Agreed Through Collective

Bargaining That It Serves Their Com-

mon Best Interests To Forgo Compensa-

tion For Clothes-Changing Time.

In 1956, the Union and Kraft (or its predecessors)

began to expressly negotiate whether the Company

would compensate Respondents for time spent don-

ning and doffing Articles (“Clothes-Changing Com-

pensation”). The 1956 CBA added 12 minutes per day

for the time each employee spent changing clothes

incident to employment, which time would be added

to the employees’ daily work time (the “Clothes-

Changing Provision”). An_ essentially identical

Clothes-Changing Provision remained in each CBA

until 1985. (A90-91).

During negotiations in 1984, Kraft sought to

delete the CBA’s Clothes-Changing Provision, but the

Union rejected this proposal. (A90-91). After exten-

sive but failed negotiations, Kraft declared an im-

passe and implemented a wage reduction from

$10.69/hour to $8.25/hour. All other CBA provisions

remained intact, including the Clothes-Changing

Provision. (A91).

In early 1985 — after additional negotiations

Kraft proposed a wage increase up to $10.00/hour in

a |

return for a reduction in benefits, including elimina-

tion of the Clothes-Changing Provision. On May 12,

1985, the Union’s members ratified the proposal.

(A91).

Twice since then — in 1986 and 1989 — the Union

sought unsuccessfully to reinstate the Clothes-

Changing Provision. (A91). The Union otherwise has

not subsequently sought any Clothes-Changing Com-

pensation. Since 1985, Kraft has not paid Clothes-

Changing Compensation to its employees. (A91-92).

C. Respondents Sue, Claiming That Wis-

consin Law Overrides The CBA’s Treat-

ment Of Clothes-Changing Time.

Plaintiffs sued in the District Court on May 30,

2007, alleging that Kraft violated federal and state

law by failing to compensate them for Clothes-Changing

Time. They contended that Clothes-Changing Time con-

stituted “hours worked” under Wisconsin’s Wage and

Overtime Statutes, Wis. Stat. §8103.02 & 109.03, and

implementing regulations and required compensation

notwithstanding any contrary CBA provision.

In September 2007, Kraft moved for summary

judgment on several theories, including that Section

203(0) applied because the CBA expressly excluded

compensation for Clothes-Changing Time. Kraft spe-

cifically argued that federal law preempted Plaintiffs’

state law claims under several distinct theories.

D. The Courts Below Rule That States

And Municipalities May Override CBA

Provisions Regarding Clothes-Changing

Compensation.

Although Plaintiffs stipulated to all of Kraft’s

proposed findings in support of its motion for sum-

mary judgment, the District Court denied that mo-

tion. The District Court held that it could not

determine as a matter of law whether the Articles

were “clothes” for purposes of Section 203(0). Since it

was not certain that the federal statute applied, the

District Court concurrently found it could not address

preemption.

Thereafter, the parties completed discovery. Kraft

requested leave to submit a renewed motion for

summary judgment, but the District Court denied the

request.

The District Court granted Respondents’ motion

for class certification on May 6, 2008, and the parties

prepared for trial.

In Summer 2008, shortly before trial was to be-

gin, the parties entered mediation. In a resulting set-

tlement, the parties agreed to submit joint findings of

fact and legal briefing upon which the District Court

would decide the case. In addition, Kraft agreed to

limit its arguments regarding Respondents’ FLSA

claim to whether Section 203(0) applied and, if so, to

limit its arguments whether Respondents’ state law

claims were preempted by federal law. Kraft agreed

not to proceed on its other defenses in exchange for

Respondents’ agreement to limit their claim.

The parties then submitted stipulated joint find-

ings of fact on September 8, 2008. The District Court

approved the settlement on February 12, 2009, and

Kraft and Respondents cross-moved for judgment

based on stipulated facts.

The District Court again ruled in favor of Re-

spondents on June 17, 2C09, but on different grounds.

While the District Court noted that, since its initial

decision, the law had evolved regarding whether the

Articles were “clothes” for purposes of Section 203(0),

it determined that it “need not resolve” the applic-

ability of Section 203(0) because it had no preemptive

effect. (A20).

The District Court concluded that states and

municipalities have authority to “give workers more

rights than they would be entitled to under federal

law,” even where Section 203(0) expressly provides

that the CBA “shall” control the question of Clothes-

Changing Compensation.

Kraft timely appealed to the Seventh Circuit.

After briefing and argument, on August 2, 2010, in a

seven-page opinion that did not address Kraft’s

theories of preemption, the Seventh Circuit affirmed

the District Court and rejected the contention that

state or local law was preempted. (A1-8).

II. The District Court Properly Exercised

Federal Jurisdiction.

The District Court exercised jurisdiction under

28 U.S.C. §§1331 and 1337 for claims arising under

the FLSA. The District Court exercised jurisdiction

under 28 U.S.C. §1367(a) for the ancillary state

claims.

REASONS FOR GRANTING THE PETITION

Review Is Warranted Because This Case

Presents A Question Of Exceptional Na-

tional Importance.

In IBP. Inc. v. Alvarez, 546 U.S. 21 (2005), this

Court explained the “continuous workday rule” re-

quired employers to pay workers for all time spent

following the first principal activity of the day and

until the final principal activity of the day. In Alvarez,

the first principal activity was the donning of “in-

tegral and indispensable” safety gear, and the final

principal activity was the doffing of such gear. The

\luarez parties had specifically agreed that the

donning and doffing involved were principal activi-

ties. This Court did not address whether Section

203(0) applied to the donning or doffing, as neither

party raised the issue. Nor did this Court address

whether Section 203(0) preempts efforts by states

or municipalities to require Clothes-Changing Com-

pensation when, pursuant to that Section, unions

and employers by CBA have agreed to forgo such

compensation. Alvarez has since spawned hundreds

of cases disputing the scope of Section 203(0).

Although a number of federal appellate courts

have addressed the applicability of Section 203(0), the

preemption issue had not been addressed previously

before the Seventh Circuit issued its Decision in this

case. The preemption issue remains vitally im-

portant to American labor and management.

For more than 75 years, Congress has made it a

pillar of American labor policy to promote collective

bargaining, having concluded that it promotes em-

ployees’ standard of living, is fairest to employers and

employees and best allows labor and management to

resolve issues particular to their industry. Congress

has directed that the interpretation and administra-

tion of CBAs be subject exclusively to federal law.

In Section 203(0), in particular, Congress deter-

mined that it was best to defer to the determination

of individual unions and employers through their

CBAs as to how to resolve the contentious issue of

Clothes-Changing Compensation. Now, however, the

Decision establishes a dangerous precedent that

threatens to undermine these key federal goals by

allowing local laws to override settled collective

bargaining decisions, in direct conflict to what federal

law intends. This Court should grant Kraft’s Petition

' The Seventh Circuit recognized that the preemption issue

is one of first impression. (A5)

to provide clear guidance that such state and munic!

pal intrusions are preempted. Indeed, preemption is

required under several independent doctrines, includ-

ing Section 301 of the LMRA, 29 U.S.C. §185, the

doctrine of conflict preemption and the doctrine of

preemption established by Building and Trades

Council (San Diego) v. Garmon, 359 U.S. 236 (1959)

(“Garmon”), including this Court’s decision applying

the Garmon doctrine under similar circumstances in

Wisconsin Dept. of Industry Labor and Human Rela

tions v. Gould, 475 U.S. 282 (1988) (“Gould”).

If left to stand, the Decision will undermine the

very collective bargaining process Congress intended

to protect and cause other harms that Congress

sought to avoid.’

For these reasons, this Petition amply satisfies

Supreme Court Rule 10(c), as it presents a matter

where a United States Court of Appeals has both

“decided an important question of federal law that

has not been, but should be settled by this Court,”

and “has decided an important federal question in a

* This Court’s denial of the petition for certiorari filed in

Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 217 (4th

Cir. 2009), cert. denied, 2010 WL 2420333 (Oct. 4, 2010) (“Sepul

veda”), does not detract from the merits of Kraft’s Petition

Sepulveda determined that donning and doffing protective or

safety gear constitutes “changing clothes” for purposes of Section

203(o), a question entirely distinct from the preemption issues

raised here

lL]

way that conflicts with relevant decisions of thi

Court.” S. Ct. Rule 10(c)

A. For Decades, Congress Has Extolled

The Sanctity Of Collective Bargaining

And Directed That It Be Regulated

¢xclusively By Federal Law.

1. The NLRA

In passing the NLRA, Congress determined that

collective bargaining “safeguards commerce from

injury” and declared it to be national policy to

“encouragle] the practice and procedure of collective

bargaining.” 29 U.S.C. §151. That section provides

Kxperience has proved that protection by law

of the right of employees to organize and

bargain collectively safeguards commerce

from injury, impairment, or interruption, and

promotes the flow of commerce by removing

certain recognized sources of industrial strife

and unrest, by encouraging practices funda

mental to the friendly adjustment of indus

trial disputes arising out of differences as to

wages, hours, or other working conditions

and by restoring equality of bargaining powe1

between employers and employee:

[It is hereby declared to be the policy of the

United States to eliminate the causes of cer

tain substantial obstructions to the free flow

of commerce and to mitigate and eliminate

these obstructions when they have occurred

by encouraging the practice and procedure of

collective bargaining and by protecting the

exercise of workers of full freedom of associa

tion, self-organization, and designation of

representatives of their own choosing, for the

purpose of negotiating the terms and cond

tions of their employment or other mutual!

aid or protection

‘Lo imple ment that policy, Congre mandated

that employees “shall” have the right to organize and

collectively bargain. NLRA Section 7 provide

mployees ‘hall have the

organization, to form, jo! or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and

to engage in other concerted activities fo

the purpo: Cc of collective bargain nyY OT othe T

mutual aid or protection

Q157/

In interpreting the NLRA thu

acknowledged Congress’ desire to allow matters of

vital concern to labor and management to be resolved

through collective bargaining. E.g., fibreboard Paper

Products Corp v. NLRB, 379 U.S. 203, 211 (1964)

(“To hold, as the Board has done, that contracting out

is a mandatory subject of collective bargaining would

promote the fundamental purpose of the Act by bring

ing a problem of vital concern to labor and manag

ment within the framework established by Congre

as most conducive to industrial peace.”). This Court

reatlirmed recently mn Jif frenn Pla. I LLC { Pvyeilt

129 S.Ct. 1456, 1464-65 (2009). that CBA term

should be honored unless they violate a federal stat

ute. That decision reaflirmed the deference piven te

(CBA

2. The LMRA

In 1947, Congre passed the haft-Llartley

Act, later codified as the LMRA. Convre therein

amended the NLRA to restrict certain union activiti

and to guarantee freedom of speech and conduct for

employers and individual employee Significantly

not only did Congre leave intact the NLRA’s com

mitment to collective bargaining, it provided a statu

tory framework for conducting collective bargaining

in Section &(d), now codified at 29 U.S.C. 8158. That

Droy ide ;

} ceriormancs

l'}o bargain col ectively 1 Live

of the mutual obligation of the employer and

the representative of the employe Lo meet

at reasonable times and confer in vood faith

with respect to wages, hours and other term

and condition of employment but uch

obligation does not compel either party to

agree lo a propo al or re quire the making of

a concession

ld Section lps al oO set lortn procedure thata it ity

Loa (CCBA must follow hefore it may modify mw vermi

nate the contract ld

This Court has recognized that the LMRA em-

bodies a policy of deferring to collective bargaining

decisions:

[o]ne policy of particular importance — if not

the overriding one — was the policy of free,

collective bargaining. And to make crystal

clear the intention to leave the parties en-

tirely free of any Government compulsion to

agree to a proposal, or even reach an agree-

ment, Congress added section 8(d) defining

‘to bargain collectively’ as ‘not [to] compel

either party to agree to a proposal or require

the making of a concession.’ 29 U.S.C.

§158(d). It follows that the parties’ agreement

primarily determines their relationship. If

the parties’ agreement specifically resolves a

particular issue, the courts cannot substitute

a different resolution.

Carbon Fuel Co. v. United Mine Workers of Am., 444

U.S. 212, 218 (1979) (citations omitted; emphasis

added).

3. The FLSA

The FLSA’s history is consistent with Congress’

commitment to collective bargaining. Congress

passed the FLSA against the backdrop of the Depres-

sion, with the intent of protecting workers who were

unable to organize. It sought to provide a minimum

standard of living for all workers by providing a floor

for hourly wages, qualification for overtime, and age

of employability (to avoid child labor). Beyond these

discrete issues, Congress did not intend to interfere

with collective bargaining, much less to permit state

or municipal interference.

In calling for the legislation that would eventual-

ly become the FLSA, President Roosevelt emphasized

his concern about the “exploitation of unorganized

labor.” His recommendation more fully provides:

All but the hopelessly reactionary will agree

that to preserve our primary resources of

man power, Government must have some con

trol over maximum hours, minimum wages,

the evil of child labor, and the explottation of

unorganized labor.

H.R. Doc. No. 75-255, at 2 (1937) (emphasis added).

That the FLSA was meant to support collective

bargaining was further evident from a debate be-

tween two future Supreme Court Justices, then-

United States Attorney General Robert H. Jackson

and then-Labor Committee Chairman Hugo L. Black.

Attorney General Jackson affirmed that the FLSA

“gives effect to collective bargaining, as I understand

it. I do not think you are in any danger of collective

bargaining reaching a wage below the minimum.”

Bills To Provide For The Establishment Of Fair Labor

Standards In Employments In And Affecting Inter-

state Commerce And For Other Purposes: Joint Hear-

ing on S. 2475 and H.R. 7200 Before The Comm. On

Education And Labor United States Senate And The

Comm. On Labor H. of Rep., 75th Cong. 22 (1937)

(Statement of Robert H. Jackson).

Other witnesses before Congress echoed that the

best way to ensure a minimum quality of life for all

workers was through collective bargaining, but

acknowledged that many workers lacked access to

this protection.

Some observers have mentioned that all this

could and should be done by organized labor

unions. ... It might be a very fine thing if all

of our 43,000,000 wage earners were mem-

bers of well organized and intelligently led

unions. No doubt at some very distant time

this or something near it may exist. But it

will take many years to organize into well-

administered unions the great body of wage

earners in the United States. We cannot de-

lay for that many years.

Id. at 97 (Statement of Robert Johnson).

As Congress debated the legislation, President

Roosevelt told both Houses that, once a floor of ac-

ceptable wages and hours was established, it was best

to leave the negotiation for better terms to the collec-

tive bargaining process:

No reasonable person seeks a complete uni-

formity in wages in every part of the United

States; nor does any reasonable person seek

an immediate and drastic change from the

lowest paid to the highest paid. We are seek-

ing, of course, only legislation to end starva-

tion wages and intolerable hours; more

desirable wages are and should continue to

be the product of collective bargaining.

H.R. Doc. No. 75-458 at 4 (1938) (emphasis added).

B. Congress Passed Section 203(0) To Al-

low Labor And Management To Re-

solve A Contentious Issue Through

Collective Bargaining.

1. Section 203(0)’s Legislative History

Shows That Congress’ Primary In-

tent Was To Defer To Collective

Bargaining.

Congress enacted Section 203(0) in 1949 as an

amendment to the 1947 Portal-to-Portal Act, 29

U.S.C. §254(a)(2) (“PPA”). Section 203(0)’s legislative

history leaves no doubt that Congress intended to

allow labor and management representatives to

resolve through collective bargaining what otherwise

could be a particularly contentious issue — Clothes-

Changing Compensation — and, where collective

bargaining resolved that issue, to protect that deter-

mination from governmental interference.

Section 203(0) arose in response to an ambiguity

in the PPA regarding whether Congress intended to

allow employers and employees to contract for

Clothes-Changing Compensation. Between 1947-49,

that ambiguity resulted in claims on behalf of indus-

trial employers that, by some reports, exceeded $1

billion. See Sepulveda, 591 F.3d at 217.

To resolve this ambiguity, Representative Chris-

tian Herter introduced the amendment that later

became Section 203(0). He explained that the

amendment was “offered for the purpose of avoiding

another series of incidents which led to the Portal-To-

Portal Legislation.” 95 Cong. Rec. 11433 (1949)

(statement of Rep. Herter) (included A75-78). He

further observed that unions and employers in differ-

ent industries had reached diverse outcomes as to

whether Clothes-Changing Time was compensable

and that the matter was best left to individual CBAs:

In some of those collective-bargaining agree-

ments the time taken to change clothes .. . is

considered part of the working day. In other

collective-bargaining agreements, it is not so

considered. But, in either case, the matter

has been carefully threshed out between the

employer and the employee and apparently

both are completely satisfied with respect to

their bargaining agreements.

Id. (A76).

Representative Herter specifically noted his de-

sire to prevent federal Department of Labor (“DOL”)

officials from overriding a CBA that had settled this

issue:

The difficulty, however, is that suddenly

some representative of the Department of

Labor may step into one of those industries

and say, “You have reached a _ collective-

bargaining agreement which we do not ap-

prove. Hence, the employer must pay for

back years the time which everybody had

considered was excluded as a part of the

working day.” That situation may arise at

any moment. This amendment is offered

merely to prevent such a situation arising

and to give sanctity once again to the collec-

tive-bargaining agreements as being a deter-

mining factor in finally adjudicating that

type of arrangement.

Id. (emphasis added) (A76). See Fed. Energy Admin v.

Algonquin SNG, Inc., 426 U.S. 548, 546 (1976) (hold-

ing that “a statement of one of |a statute’s) sponsors

deserves to be accorded substantial weight in

interpreting th[at] statute”).

Before proceeding to a vote and in responding to

another representative’s question, Representative

Herter confirmed his understanding that both labor

and management desired the amendment. 95 Cong.

Rec. 11433 (1949) (Statements of Reps. Lucas and

Herter) (A77). The House then approved the Amend-

ment.

A Conference Report reinforced that Section

203(0) was intended to amend the phrase “hours

worked” throughout the FLSA once Clothes-Changing

Compensation had been resolved by a CBA, stating:

for the purposes of mintmum wage and max-

imum hours provisions of the Act, there

would be excluded from “hours worked” any

time spent by the employee which was ex-

cluded from measured working time under a

bona fide collective bargaining agreement

applicable to him or custom or practice

thereunder. A conference agreement limits

this exclusion to time spent by the employee

in changing clothes and cleaning his person

at the beginning or at the end of each work

day.

H.R. Rep. No. 81-1453, at 16 (1949) (emphasis added).

As the Sepulveda court recognized, Section 203(0)

represents a judgment that leaving this issue to the

CBA process is in employees’ best interests: “Like the

Portal-To-Portal Act, Section 203(0) reflects Con-

gress’s intention to give private parties greater dis-

cretion to define the outer limits of the workday.” 591

F.3d at 218.

Relying on a 2002 DOL opinion letter, the Sepul-

veda court held:

And Congress has concluded that employees

would be better off if this issue were subject

to collective bargaining. For, “[iJt would dis-

serve the workers the Fair Labor Standards

Act it meant to protect if employers who wish

to introduce ... more protective gear in the

workplace and knew that in doing so, they

would lose their ability to bargain with their

union over the compensability of donning

and doffing protective gear.” Fair Labor

Standards Act, U.S. Dept. of Labor, Wage &

Hour Div. Advisory Op. Ltr. No. FLSA2002-2

(June 6, 2002).° This sort of disincentive to

workplace safety is not one that courts

should casually introduce, especially in the

face of a clear and contrary congressional

mandate by section 203(0).

2. Section 203(0)’s Text Requires Def-

erence To Collective Bargaining.

Section 203(0)’s text reinforces Congress’ inten-

tion to defer to CBAs concerning Clothes-Changing

Compensation. Section 203(0) is set forth in the

FLSA’s definitions section and provides:

* In the 2002 opinion letter, the DOL noted that Congress

passed §203(0) to “give a measure of deference on [Clothes-

Changing Compensation] to the agreements and judgment

shared by companies and their employees’ designated represent-

atives.” U.S. DOL, Wage & Hour Div., Adm. Op. Ltr. No.

FLSA2002-2 at 3 (June 6, 2002). This was reaffirmed in 2007.

U.S. DOL, Wage & Hour Div. Adm. Op. Ltr. FLSA2007-10 (May

14, 2007). However, the DOL has changed its position a number

of times in recent years as to what “changing clothes” means for

purposes of Section 203(0), an issue not presented in this

Petition. On June 16, 2010, the DOL reverted to a position

articulated in 1997 and 2001 — that Section 203(0) does not

exempt protective gear that is required by law, the employer or

the nature of the job. U.S. DOL, Wage & Hour Div., Adm. Interp.

No. 2010-2 (June 16, 2010). This vacillation shows how volatile

and contentious Section 203(o0) is and highlights that a danger-

ous by-product of the Decision will be to spur a new generation

of litigation over whether state law or municipal ordinances

supplant Section 203(0).

a hd

As used in this Chapter —

(o) Hours Worked. — In determining for the

purposes of sections 206 and 207 of this title

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 of or by

custom or practice under a bona fide collec-

tive-bargaining agreement applicable to the

particular employee.

29 U.S.C. §203(0) (emphasis added) (A65). Section

203(0) admits of no exception for any law, whether

state or federal.

Congress’ use of the phrase “shall be excluded”

shows its specific intent that this issue not be subject

to limitation or override by courts or governmental

officials. E.g., Anderson v. Yungkau, 329 U.S. 482, 485

(1947) (“shall” is ordinarily “the language of com-

mand”) (citation omitted). In its Decision, however,

the Seventh Circuit did not address the import of

Congress’ use of this “language of command” in

Section 203(0). Yet, Congress’ forceful command that

CBA decisions as to Clothes-Changing Compensation

be protected from governmental interference is plain-

ly undermined if every state and municipal govern-

ment may freely override such CBA determinations —

the effect of the Decision here.

The language that introduces Section 203 — “As

used in this Chapter” — shows that each subsection of

Section 203 applies for purposes of construing all

other FLSA provisions. Therefore, Section 203(o)

modifies the definition of “hours worked” throughout

the FLSA when a CBA has addressed Clothes-

Changing Compensation by carving out Clothes-

Changing Time from what is counted in determining

“hours worked.” See Franklin v. Kellogg Co., 619 F.3d

604, 611 (6th Cir. 2010) (noting that the “majority of

our sister circuits” interpret Section 203(0) not as an

exemption from the FLSA,* “but as an exclusion from

the definition of work”).

Moreover, most other provisions of the FLSA set

forth federal minimum standards as to wages, over-

time or age of employability. See, e.g., 29 U.S.C. §206

(minimum wage) (A66); 29 U.S.C. §207(a) (“not longer

than” or “in excess of” as to overtime) (A67-68); 29

U.S.C. §203(1) (minimum age requirements) (A64-65).

Each such provision anticipates that higher state

minimums serve Congress’ intent of providing for a

better standard of living. By contrast, Section 203(o0)

does not attempt to set a federal floor that state and

local governments may exceed. Instead, it excludes an

issue from governmental regulation in its entirety.

This reflects Congress’ determination that employees

and employers alike best prosper if the issue of

Clothes-Changing Compensation is protected from

* Exemptions are set forth in FLSA Section 213, 29 U.S.C

§213.

governmental interference once it is resolved by

collective bargaining.

C. This Case Illustrates How Allowing

CBAs To Resolve The Issue Of Clothes-

Changing Compensation Furthers All

Parties’ Best Interests.

This case illustrates the wisdom of Congress’

belief that allowing issues to be resolved through

collective bargaining best promotes workers’ inter-

ests. Workers at Kraft’s Facility agreed to forgo 12

minutes per day of Clothes-Changing Compensation

in exchange for increased wages for every hour of

their workday, resulting in compensation that is well

above both the federal and Wisconsin’s minimum

wage. Kraft’s employees have repeatedly reaffirmed

the CBA’s treatment of Clothes-Changing Compensa

tion for more than 25 years.

A survey of the judicial landscape shows that one

of the most litigated issues in American labor law is

whether an article is “clothing” for purposes of Sec

tion 203(0). Hundreds of lower courts have faced this

question. As noted above, the DOL has vacillated on

this issue and failed to provide clear guidance.

Section 203(0)’s applicability was at issue in this

case as originally filed. However, because subsequent

Seventh Circuit precedent left no doubt that the

Articles were within Section 203(0), see Pirant v.

U.S. Postal Service, 542 F.3d 202, 208 (7th Cir. 2008),

this Petition does not present any question of what

constitutes “clothing” under Section 203(0). Like the

Seventh Circuit, other courts have taken an expan

sive view of clothing for this purpose. See, e.g., Ander

son v. Cagle’s, Inc., 488 F.3d 945 (11th Cir. 2007); Bejil

269 F.3d 477 (5th Cir. 2001) (each

deferring to CBA’s definition of what constituted

v. Ethicon, Inc.,

“clothing”). Many cases questioning the scope of

Section 203(0), however, continue to proceed. If Rep

resentative Herter was concerned about $1 billion in

claims at the time Section 203(0) was passed, the

amounts at issue in today’s lawsuits are truly stag

ver) cy

gering

Parties’ willingness to litigate this issue show

how important it 1s, and makes it especially im

portant to defer to Congress’ desire to allow union

and employers to agree on ways to resolve this issue

apart from costly lawsuits

Il. Review Is Warranted Because The Deci-

sion Conflicts With This Court’s Prece-

dent And Misinterprets Federal Law.

In enacting the major pieces of ‘Twentieth Century

labor legislation, Congress intended to protect collec

tive bargaining through a uniform body of federal!

law. Recognizing this history, this Court has repeat

edly held state laws that interfere with such national

uniformity are preempted. Here, the language and

history of Section 203(0) makes preemption of incon

sistent local laws particularly necessary. Neverthe

less, in what was merely a seven-page opinion, the

Decision below nevel adare ed any *) Kral

emption theone it improperly disregarded

independ nt ba for federal pre mption

LMRA Section 301 Preempts State

Laws And Municipal Ordinances That

Override CBA Determinations Regard

ing Clothes-Changing Compensation.

ection JO] state

Suits for violation of contracts between an

employer and labor organization represent

ing employees in the industry allecting

commerce may be brought in any district

court of the United States having jur! diction

of the partie

VAs, [) S.C ~185(a) (A63) In lextile Worke) Lanes

Mills, 353 U.S. 448 (1957) this Court ruled that the

Section 301 case =a

substantive law to apply in

federal law. which the courts must fashion from a

) ld al ADb A ) tn

policy of our national labor law

authorizes federal court

(Court stated, “|Section 301] |

to fashion a hody of federal law tor the enforcement ol

Id. at 451

(his body of federal law, consistent with the NLRB

uniform inter

these collective bargaining agreement

administration of labor policy, ensure

pretation of such labor contracts and promotes peac

labor di! puls ld

able resolution of legitimate

ihe dimensions ol ecto!

conclusion that substant

eral labor law must be

Vi principle | «*()

par mount f LI

area covered by the statute [so that] | ui‘

raised in suits of a kind ce

‘O] lare to he decided Act

( rt Qt 1¢ deral labor poli

Id. at 103. This Court conch

Section] 340) | ( {)T rf mn na

labor flaw uniformly to preval!

rules.” Id. at 104

In Vil ( hal) ey { a

1985). thi Court ruled “the u

uniformity and predictability

tion extended not merely to law

f collective bargaining but o

meaning of CIA terms. /d. at

Other court nave hneld that Lhe preempt f ri

*) federal law extends be yond

Lo any “impli d rivhts” created

the hop which Implement Hi)

}

of the avyreement.” Dougia

Sleelworker { Warrior A Citi

US »/4 »/9-B0 1Y60)) hve

ha held that if itt rece ary

or implied term f a CBA

vered Dy ect

ording to the

ded |

ead doctrine tf fed

i t) I { iL if

/ } 17)

Lerest Mn wlerpre

required that preen

affecting the pre

aL that npacted

xXpre CBA prov!

by the “common lav

qd turn he t hye conte

Vreri lrifo lec} (

14YRY quoting {/)

| Navipattor (

mn the Seventh ¢

completely preempted by [Section] 301.” Atchley v

Heritage Cable Vision Assocs., 101 F.3d 495, 499 (7th

Cir. 1996).

Here one must interpret the CBA to determine

whether the issue of Clothes-Changing Compensation

has been resolved “by express terms of or by custom

or similar practice under a bona fide collective bar-

gaining agreement.” 29 U.S.C. §203(0). Moreover, one

must consult that CBA to know what articles consti-

tute “clothes” as to that issue.

Further, application of Wisconsin law as _ to

Clothes-Changing Compensation leads to a different

result under state law than under federal law on a

key issue identified by Congress. Thus, in Wisconsin,

if the Decision below is correct, Kraft and its Union

may not agree to forgo Clothes-Changing Compensa-

tion through their CBA. In other states, however,

Section 203(0) will continue to govern. Thus, uni-

formity is impossible. The workers at the Wisconsin

‘acility may re-eive Clothes-Changing Compensa-

tion, while Oscar Mayer employees in a different

state, e.g., Iowa, with an identical CBA, may not

receive such compensation for donning and doffing

the same Articles.

Independent from the CBA’s treatment of

Clothes-Changing Compensation, a court would have

to consult the CBA to determine how properly to

apply Wisconsin law, making Section 301 preemption

still applicable. Wisconsin wage laws create a right to

overtime pay for “hours worked in excess of 40 hours

per week” at “time and one-half the regular rate of

pay.” Wis. Admin. Code DWD §274.03 (A74). Deter-

mining the number of “hours worked” under Wiscon-

sin law requires interpreting the CBA to address even

less controversial elements of what constitutes a

compensable hour. Wisconsin administrative regula-

tions define “hours worked,” Wis. Admin. Code DWD

§272.12 (A73), which is not always the same as the

time for which employees receive compensation under

a CBA. Indeed, the current CBA between Kraft and

the Union compensates employees for time that

would not necessarily constitute “hours worked”

under Wisconsin law, such as sick time, extra hours

for unscheduled call-in work, vacations and holidays.

Where, as here, a CBA’s terms govern an employee's

“hours worked” per week, courts have found that

Section 301 preempts state law claims. See Mowry v.

United Parcel Serv., 415 F.3d 1149, 1157 (10th Cir.

2005) (preempting state wage claim under Section

301 because determining whether plaintiff was

underpaid required review of CBA terms).

Numerous courts have reached the same _ conclusion

regarding preemption of state wage laws under the Railway

Labor Act, which is persuasive because the standard for preemp-

tion is virtually identical to Section 301’s. Hawaiian Airlines v

Norris, 512 U.S. 246 (1994). See, e.g., Adames v. Executive

Airlines, Inc., 258 F.3d 7, 13 (1st Cir. 2001) (overtime claim

preempted because determination of hours “worked” and

effective hourly wages requires interpretation of CBA).

State Laws And Municipal Ordinances

That Override CBA Determinations As

To Clothes-Changing Time Are Inde-

pendently Preempted Under The Doc-

trine Of Conflict Preemption.

As this Court has noted repeatedly (and the

Supremacy Clause of the United States Constitution

lemands), “[p]re-emption occurs when Congress, in

enacting a federal statute, expresses a clear intent to

preempt state law, ... where there is implicit in

federal !aw a barrier to state regulation, ... or where

the state law stands as an obstacle to the accom-

plishment and execution of the full objectives of

Congress.” La. Pub. Serv. Comm’n v. F-C.C., 476 U.S.

355, 368-69 (1986) (emphasis added).

‘“{[]n any pre-emption analysis, the purpose of

Congress is the ultimate touchstone.” Metro. Life Ins.

Co. v. Massachusetts, 471 U.S. 724, 738, 747 (1985)

(internal quotation and alteration omitted). In cases

involving preemption issues, a court’s duty is to

“decide if a state rule conflicts with or otherwise

stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of the

federal law.” Livadas v. Bradshaw, 512 U.S. 107, 120,

131-32 (1994) (internal quotation omitted). See also

Hill v. Florida, 325 U.S. 538, 543 (1945) (finding state

licensing provision conflicted with NLRA provision

allowing employees to select their own bargaining

agents and to pass upon their qualifications).

Moreover, when application of state law would

restrict the exercise of rights guaranteed by federal

law or undermine the purpose of such law, the conflict

is resolved in favor of federal law. N.Y. Tel. Co. v. NY.

Dept. of Labor, 440 U.S. 519, 529 (1979).

In passing Section 203(0), Congress indisputably

wanted to let the matter of Clothes-Changing Com-

pensation be “carefully threshed out between the

employer and the employee.” It wanted to “prevent

such a situation” where a CBA could be overridden

years later resulting in an employer having to pay

back wages for “time which everybody had considered

was excluded as a part of the working day.” It wanted

to give “sanctity once again to the _ collective-

bargaining agreements as being a determining factor

in finally adjudicating that type of arrangement.”

Implementing these areas, Congress mandated that

Clothes-Changing Time “shall be excluded” from

hours worked when a CBA so provides. 29 U.S.C.

§203(0).

Now, if the Decision stands, what “everybody had

considered to be excluded as a part of the working

day” instead will be deemed to be included. A gov-

ernmental official will be able to override a CBA. The

“sanctity” of the CBA will not be respected. Clothes-

Changing Time will not be excluded from hours

worked, despite Section 203(0)’s mandate. The direct

conflict is manifest.

‘

In this instance, Kraft and the Union “collective

ly bargained in good faith and agreed” in exchange for

y B Ss 5 5

other concessions — including a higher hourly wage

that the minimal time employees spent in changing

clothes would be excluded from “hours worked,” as

expressly authorized by Section §203(0). Respondents’

state law claims are preempted because they other-

wise deny this express right under federal law, result-

ing in direct and unlawful state interference with

Congress’ express purpose in passing Section 203(o).

The Garmon Doctrine Independently

Requires Preemption.

In Garmon, this Court established that “[wJhen it

is clear or may fairly be assumed that the activities

which a State purports to regulate are protected by

[NLRA §7], or constitute an unfair labor practice

under §8, due regard for the federal enactment re-

quires that state jurisdiction must yield.” 359 U.S. at

244. Garmon emphasized that potential rather than

actual, conflict is enough to require preemption. /d. at

246. If conduct “is arguably within the compass of $7

or $8 of the [NLRA], the State’s jurisdiction is dis-

placed.” /d.

As this Court later explained in N.Y. Telephone,

Congress’

overriding interest in a uniform, nationwide

interpretation of the federal statute by the

centralized expert agency created by Con-

gress [the National Labor Relations Board]

not only demands that the NLRB’s primary

jurisdiction be protected, it also forecloses

overlapping state enforcement of the pro-

hibitions in §8 of the Act, as well as state

interference with the exercise of mghts pro-

tected by §7 of the Act.

440 U.S. at 528 (internal citations omitted).

Both NLRA Sections 7 and 8 concern collective

bargaining between employers and union representa-

tives. See 29 U.S.C. §§157, 158. States may not in-

vade this bargaining process. Cannon v. Edgar, 33

F.3d &80, 884 (7th Cir. 1994) (noting that the NLRA

does not permit “direct intrusion by the state into the

collective bargaining process’).

In Gould, this Court held that Garmon pre-

empted a Wisconsin statute that provided an addi-

tional remedy to that authorized by the NLRB. 475

U.S. 282. The Wisconsin statute had proscribed state

procurement of products manufactured or sold by

repeated violators of the NLRA even though the

NLRB authorized no such remedy. Thus, Wisconsin

suspended respondent from future state procurement

opportunities after its various divisions were named

in four NLRB enforcement orders, all outside of

Wisconsin. The same District Court judge as here found

the Wisconsin law to be preempted, and the Seventh

Circuit agreed. The Supreme Court affirmed, stating:

The Garmon rule prevents States not only

from setting forth standards of conduct in-

consistent with the substantive require-

ments of the NLRA, but also from providing

their own regulatory or judicial remedies for

conduct prohibited or arguably prohibited by

the Act. See 359 U.S., at 247. The rule is de-

signed to prevent ‘conflict in its broadest

sense’ with the ‘complex and interrelated

federai scheme of law, remedy and admin-

istration,’ id., at 243, and this Court has rec-

ognized that ‘{clonflict in technique can be

fully as disruptive to the system Congress

erected as conflict in overt policy.’ Motor

Coach Employees v. Lockridge, 403 U.S. 274

(1971).

Id. at 276. Similarly, Wisconsin law here may be

viewed as adding a remedy ~— the inclusion of Clothes-

Changing Time as part of a compensable hour — under

circumstances where federal law has authorized

parties to a CBA to exclude that remedy.

D. The Seventh Circuit’s Reasons For

Avoiding Preemption Each Fail.

By misapplying Section 203(0) and other FLSA

Sections, the Seventh Circuit improperly avoided the

preemption issue and — on an issue of first impression

- established a precedent that is directly contrary to

what Congress intended and public policy requires,

showing that Supreme Court Rule 10(c)’s criteria are

satisfied here.

1. The Seventh Circuit Misinterpreted

Section 203(0)’s Relationship To

Other FLSA Sections.

The Seventh Circuit read the reference to FLSA

Sections 206 and 207 in the opening clause of Section

203(0) to suggest that Section 203(0) is limited to “rules

of federal law.” It concluded from this that “[s|tates

are free to set higher hourly wages or shorter periods

before overtime pay comes due.” (A5).° Yet, that

freedom does not permit states to override CBA

provisions entered into pursuant to Section 203(0).

Where a CBA addresses Clothes-Changing Time,

Section 203(0) excludes this from what states may

consider as an hour for purposes of wage or overtime

laws.

The Seventh Circuit also based its Decision on

Section 218(a), which allows States to set higher

hourly wages or shorter periods before overtime pay

becomes due. In Section 218(a), Congress specifically

authorized states to implement higher minimum

wages than federal minimums and to set lower max-

imum hours worked than federal law set before

overtime pay was required. It concluded from this

that “[nJothing in Section 203(0) limits the operation

of §218(a),” (A5), but this reasoning has it backwards.

Section 218 makes no reference to clothes changing

nor limits Section 203(0) in any way. The specific

statute — here Section 203(0) — controls over the more

yeneral provisions of Section 218(a). See Gozlon-

Peretz v. United States, 498 U.S. 395, 407 (1991). As

this Court recently reiterated, “general language of a

statutory provision, although broad enough to include

it, will not be held to apply to a matter specifically

dealt with in another part of the same enactment.”

* Nothing in Wisconsin law specifically addresses Clothes-

Changing Time or expressly requires an employer to compensate

for it. The Seventh Circuit just read the absence of any state

analogy to Section 203(0) to require this result

Bloate v. United States, 130 S. Ct. 1345, 1354 (2010)

(quoting D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S.

204, 208 (1932>).

If Clothes-Changing Time is carved out from

”

“hours worked” (as it would be elsewhere in the

FLSA), Section 218(a) remains viable as a savings

clause. States may still set lower hours for overtime

but cannot include in these hours the discrete subject

areas that federal law has withdrawn. So, for

instance, if federal law has a 35-hour minimum

overtime requirement, Wisconsin may set a 30-hour

requirement. But for purposes of both laws, Clothes-

Changing Time must be excluded if a CBA so pro-

vides.

A savings clause such as Section 218(a) should

not be read so that it undermines the legislative

purpose of a substantive statutory provision. This

Court has repeatedly “decline[d] to give broad effect

to savings clauses where doing so would upset the

careful regulatory scheme established by federal law.”

United States v. Locke, 529 U.S. 89, 106 (2000).

Nor will the presence of a savings clause preclude

the application of conflict preemption to preempt

state law that conflicts with a federal statute. See

Geier v. American Honda Motor Co., Inc., 529 U.S.

861, 886 (2000); Freightliner Corp. v. Myrick, 514

U.S. 280, 288 (1995) (District of Columbia tort law

that conflicted with federal statute preempted, de-

spite savings clause). Section 218 does not provide a

license for states to override a CBA where a federal

regulator may not.

2. The Seventh Circuit’s “Multiplier/

Multiplicand” Reasoning Cannot

Withstand Scrutiny.

The Seventh Circuit also reasoned, in error, that

because unions and employers may not contract

around state and local wage minimums in their

CBAs, they likewise cannot contract around state

requirements as to hour limits. Thus, the Seventh

Circuit held “[iJt would be senseless to say that a

state may control the multiplicand but not the multi-

plier, or the reverse, because control of either one

permits the state to determine the bottom line (pro-

vided that the state’s number exceeds the federal

minimum ... ).” (A5). But this reasoning fails. The

FLSA provided for no carve-out from what constitutes

a minimum hourly wage — the “multiplicand,” to use

the Seventh Circuit’s term. Section 203(0) does not

address the amount of wages. But Section 203(0) does

carve out what may be counted as an “hour worked”

when a CBA addresses Clothes-Changing Compensa-

tion. As noted above, a state may establish a lower

minimum number of hours to qualify for overtime

than does federal law, but it is still required to ex-

clude Clothes-Changing Time in calculating such

hours.

3. The Seventh Circuit’s Speed Limit

Analogy Fails.

Similarly, the Seventh Circuit analogized that

unions and employers may not agree by CBA to flout

state speed limits. (A7). This analogy is strained for

at least three reasons. First, Congress does not au

thorize unions and employers to contract around

speed limits in their CBAs. Yet Congress has autho

rized unions and employers to contract as to Clothes

Changing Compensation. Second, if Congress wanted

to, under the Supremacy Clause, Art. VI, §1, it could

allow unions and employers to contract around state

speed limits. Third, speed limits, of course, represent

a legislative judgment of what best promotes the

common interest in public safety. Here, as noted

above, Congress has determined that it is in workers’

and employers’ best interests to allow the issue of

Clothes-Changing Compensation to be resolved

through collective bargaining, and this case demon

strates why that is a prudent and just decision.

The Seventh Circuit cited Lingle v. Norge Divi

sion of Magic Chef, Inc., 486 U.S. 399 (1988), to

suggest that a CBA may be “ignored, to the extent

that it sets lower wages or hours than state law

specifies.” (A6) (emphasis in original). Again, Wiscon

sin is not merely setting lower hours, it is including

within its calculation of hours a subject that Congress

mandated be excluded in Section 203(0). Lingle, is

otherwise inapposite. It concerned whether an em

ployee could bring a state retaliatory discharge claim

and held that Section 301 did not preempt that claim

In so deciding, this Court looked at the two element

necessary to establish a prima facie retaliatory dl

charge claim: (1) discharge or a threat thereof; and

(2) a motive to deter the employee from exercising het

rights. This Court concluded that these element

were purely “factual questions pertain|ing] to the

conduct of the employee and the conduct and motiva

tion of the employer” and that “[nJeither of the ele

ments requires a court to interpret any term of a

collective-bargaining agreement.” /d. at 407

E. This Court Should Grant This Petition

To Reverse A Dangerous Precedent

And Provide Clear Direction On This

Vital Issue.

1. If Left To Stand, The Decision Will

Nullify The Purpose Of Section

203(0).

The Decision allows state laws and municipal!

ordinances to interfere with the intended reach of

CBAs on an issue that is plainly otherwise governed

by federal law. A: authorized by Section 203(0), the

Union and Kraft agreed in their CBA to forgo

Clothes Changing Compen ation in} exchange

higher wages

The Decision below directly conflicts with Con

gress’ general intent to leave the regulation of CBA

provisions solely to federal law. Instead, the Decision

creates a precedent pursuant to which each of the 5O

tates, every territory, and every municipality acro

iddre

oat j

ing thi

| | ii rice y

eats) ) iderin

( { | {

a vt Ii ritiaclt

Herter wa ri

ea}!

ePNntLative ol ¢ oy

Lne count! [ ]

" COMnSIN iV

[Th pst i )

The D

inilormit ind pre 1}

mit Late regulation

(Circul reading, tea

ind municipalitie

Lion j LO Clothe

result will be an unpre

that will di courave be

’ ’ ’ f {

’ ’ |

ibilit Lnat } 4 re l

' ie ‘ | , + } 4 .

j va' ‘ ‘ P

it crTie ‘ ' | |

ist. deter ft (‘HRA deter! .

rity , ‘ ”

nant ‘ pel l

raft Boats, Inc., 489 | reat

+} rospe { ; Ctio?l } » |

eemptl I lf Repre Lal

d boul federal DOL emy

ective barvaini ' that

thou d-{ a ) ! repi

Late wal ! i! palit

ine eventn Wl! iim thal

ippiled here | ré re

nt pret ‘

, n Key

}

mote the inctit

iInions and employer

tions for Clothes-C

muon ind employe!

((nanying Compe

ci | f Lag ‘t) |

hiect f Dal il! (

thre i 1] rye t) |

nneg lime tor themst {)

lear 1 nal " ( it he

16 ( non Au ' |

for ire | | ’

targvain

pudlil Uric irp 1

episiat policy ft ned |

Rarrenting Arbounsas-Best Frei

{Z {40 9 | ollectur tnorit nd

D! nti li! Lion [ve

. If Left To Stand, The Decision Will

Undermine Workers’ Confidence In

Unions And The Collective

ing Process

kOL Gell ! pro

(clothe (Lnanging ¢ ripe iL Vor}

mac it ¢ nm del ! mn other pro ‘ '

Late or unicipalll i Ove! (15

that ha if edn re tl I ) eal

Clothe (ha in ( mpc

worke! have n conhdence that i tert '

Lruly ettled il 1 entiorce rif | ir vy a ('¢

! inctilied orke! " rus aaY

bargaining proce in / Klour. tl (

hat Congpre ougnt | void interpret

(CBA tern to have different mean lor |

Lat ind federal ta rt deter

iim: oj ic] COr iste

Lhe palit na

term might have ditlerent meanin

tate and federal law would inevital

disruptive influence upon both the 1

ition and administra yf t collect (

ment because neither part |

ertall L the ht hich it had

or conceded, the process of negotiating an

agreement would be made immeasurably

more difficult by the necessity of trying to

formulate contract provisions in such a way

as to contain the same meaning under two or

more systems of law which might someday

be invoked in enforcing the contract. Once

the collective bargain was made, the possibil

ity of conflicting substantive interpretation

under competing legal systems would tend

to stimulate and prolong disputes as to its

interpretation. Indeed, the existence of pos

sibly conflicting legal concepts might sub

stantially impede the parties’ willingness t

agree to contract terms providing for final

arbitral or judicial resolution of disputes

Id. at 103-104. Yet. these fears may well be realized if

this Court lets the Decision remain precedent

If Left To Stand, The Decision Will

Allow States And Municipalities To

Improperly Deprive Management

And Labor Representatives Of The

Benefit Of Their Bargains.

Kraft and its Union reached a bargain more

than 25 years ago as to how to best resolve the

contentious issue of Clothes-Changing Compensation.

See Allied Structural Steel Co. v. Spannaus, 438 U.S.

234. 245 (1978) (“jclontracts enable individuals [and

organizations] to order their personal and business

affairs according to their particular needs and inter-

ests”). Now. however, the Decision allows states and

municipalities to essentially rewrite that CBA, r

quiring Kraft to still pay 1ts workers the higher wages

it promised in exchange for their concession to forgo

Clothes-Changing Compensation, but depriving Kraft

of the benefit of that concession. If the Decision

stands, therefore, workers will receive an unfair

windfall

4. If Left To Stand, The Decision Will

Open The Floodgates To Litigation

That Congress Meant To Close.

As noted above, Congress passed Section 203(0

to close a loophole in the PPA that led to a torrent of

litigation over Clothes-Changing Time. Now, there

likely will be a new flood of litigation raising the issue

of whether a state or local law in fact applies to a

particular Clothes-Changing Compensation provision

5. If Left To Stand, The Decision Will

Undermine The Portal-To-Portal Act.

As Sepulveda notes, Section 203(0) rests on the

same principle as the PPA itself — to allow certain

activities to be defined as outside the scope of hours

worked under certain circumstances for purposes of

compensation. Thus, if one follows the Decision to its

logical endpoint, it places equally at risk the un.-

formity and_ predictability sought by Congress

through the PPA. The PPA requires that only princi-

pal activities that are compulsory be compensated

and that workers should not receive compensation

activities. 29 U.S.C.

But

would prevent a local law from defining an

post-liminary

§254(a)(2). under the Decision’s logic, nothing

“hour

that

Decision

activities are

the

post-liminary.

worked” so that encompasses

pre- or Kor example,

appears to leave no recourse to employers or unions if

a state or municipality decides to compensate work

ers for time spent driving from home to work or from

LO home, eve

W OT k

LO he

deemed

federal law DroV\ ides

pre

uld viewed an

pursuant

‘

provi

Res}

DANIEL A. KAPLAN

Counsel of Record

FOLEY & LARDNER LLI

Verex Plaza

150 East Gilman Street

Madison, Wisconsin

53703-1481]

(608) 257-5035

dkaplan@foley.com

)

[}

this is

After

though traditionally

all. this

than

post-liminary

Oo Supreme |

}

vectfully submitted,

DAVID B. GOROF!

FOLEY & LARDNER LLP

Suite 2800

312 North Clark Street

Chicago, Illinois

60654-5313

(312) 832-4500

dgoroff@foley.com

App

In the United States Court of Appeals

For the Seventh Circuit

No. 09-2691

JEFF SPOERLE, et al

Appeal from the United States Distmet C

for the Western District of Wisconsin

No. 07-cv-300-bbc — Barbara B. Crabb, Ju

ARGUED DECEMBER 38. 2009

DECIDED AucusT 2. 2010

Before EASTERBROOK. Chief Judg

and Evans, Circuit Judges

KASTERBROOK, Chief Judge. The Fair Labor Stan

dards Act requires employers to pay workers for time

spent donning and doffing “integral and _indis-.

pensable” safety gear. See IBP, Inc. v. Alvarez, 546

U.S. 21 (2005); 29 U.S.C. $254. It aiso allows labor

and management to vary this rule through collective

bargaining:

App. 2

Hours Worked. — In determining for the pur

poses of sections 206 and 207 of this title 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 of or by

custom or practice under a bona fide collec:

tive-bargaining agreement applicable to the

particular employee

29 U.S.C. §203(0). This appeal presents the question

whether §203(0) preempts state law that lacks an

equivalent exception

Kraft Foods requires the employees who prepare

meat products at its Oscar Mayer plant in Madison,

Wisconsin, to wear safety gear, such as steel-toed

boots and hard hats, plus a smock that keeps other

garments clean. Workers must wear hair nets and

beard nets to protect the food from dandruff and

other contaminants. It takes each worker a few

minutes at the start of every day to put these items

on, and a few more at day’s end to take them off.

Kraft Foods and Local 538 of the United Food and

Commercial Workers Union have agreed that this

time is not compensable. Section 203(0) permits

unions and management to trade off the number of

compensable hours against the wage rate; the work-

ers get more, per hour, in exchange for agreeing to

exclude some time from the base.

App. 3

The plaintiffs in this suit disagree with the

tradeoff struck in the collective bargaining agreement

and want the time included and at the higher

hourly rate that the union obtained by agreeing to

exclude these few minutes a day. They have two

principal arguments: first that protective gear is not

“clothing” under §203(0), and second that Wisconsin's

own wage-and-hour legislation lacks any equivalent

to §203(0). The first of these arguments Is a loser, for

reasons given in Sepulveda v. Allen Family Foods,

Inc., 591 F.3d 209 (4th Cir. 2009). We agree with

Sepulveda and need not repeat its analysis. But the

second prevailed in the district court. The Fair Labor

Standards Act has a saving clause

No provision of this chapter shall excuss

noncompliance with any Federal or State law

or municipal ordinance establishing a mini

mum wage higher than the minimum wage

established under this chapter or a maxi

mum work week lower than the maximum

workweek established under this chapter.

No provision of this chapter shall justify any

employer in reducing a wage paid by him

which is 1n excess of the applicable minimum

wage under this chapter, or justify any em-

ployer in increasing hours of employment

maintained by him which are shorter than

the maximum hours applicable under this

chapter.

29 U.S.C. §218(a). This means, the district court

concluded, that donning and doffing time counts

toward the workweek (and overtime rates) if state

App. 4

law so provides. Kraft Foods concedes that Wisconsin

requires time spent donning and doffing safety gear

to be compensated at the minimum wage or higher,

and that this time counts toward the limit after

which the overtime rate kicks in. See Wis. Stat

§§ 109.03, 103.02; Wis. Admin. Code § DWD

272.12(2\(e). (This makes it unnecessary to decide

whether federal law would require payment for this

time, in the absence of a §203(0) agreement. See

Pirant v. United States Postal Service, 542 F.3d 202,

208-09 (7th Cir. 2008) (discussing which kinds ol

required safety gear are “integral and indispensable”

for purposes of the analysis in /BP).) Kraft Foods

contends, however, that §203(0) preempts Wisconsin's

law. The district judge rejected that argument and

entered judgment in plaintiffs’ favor as a matter of

Wisconsin rather than federal law, see 626 F. Supp

2d 913 (W.D. Wis. 2009), a step supported by the

supplemental jurisdiction of 28 U.S.C. §1367

Kraft Foods contends that §$203(0) embodies a

federal decision to permit a collectively bargained

resolution to supersede the rules otherwise applicable

to determining the number of hours worked. That’s

an accurate statement, as far as it goes. But “as far as

it goes” means “as far as §203(0) itself goes.” And the

statute tells us exactly how far it goes. The first

words of §203(0) are: “In determining for the purposes

of sections 206 and 207 of this title the hours for

which an employee is employed .. .”. Section 206 sets

the federal minimum wage per hour worked. Section

207 specifies how many hours a person may work in a

App. 95

given period before overtime pay commences. These

are rules of federal law. States are free to set higher

hourly wages or shorter periods before overtime pay

comes due. That’s what §218(a) says. Nothing in

$203(0) limits the operation of §218(a)

As far as we can tell, this is the first time an

employer’s argument that §203(0) preempts state law

has reached a court of appeals. All three district

judges who have considered this argument have

rejected it. In addition to the decision under review,

see In re Cargill Meat Solutions Wage & Hour Litiga

tion, 632 F. Supp. 2d 368, 392-94 (M.D. Pa. 2008);

Chavez v. IBP. Inc., 2005 U.S. Dist. LEXIS 29714 at

*112-22 (E.D. Wash. May 16, 2005). If Wisconsin had

provided for a minimum hourly wage exceeding the

rate in the collective bargaining agreement between

Kraft Foods and Local 538, the state law would

trump the CBA. And if this is so for the hourly rate, it

must be equally so for the number of hours, because

how much pay a worker receives depends on the

number of hours multiplied by the hourly rate. It

would be senseless to say that a state may control the

multiplicand but not the multiplier, or the reverse,

because control of either one permits the state to

determine the bottom line (provided that the state's

number exceeds the federal minimum; §218(a) does

not allow a state to authorize employers to pay less

than the federal floor).

As Kraft Foods sees things, Wisconsin is med-

dling with collective bargaining, so that federal labor

law preempts state law if §203(0) does not do the

App. 6

trick. Yet nothing in the Wisconsin statutes gives a

state court, or other state official, any role in inter

preting or enforcing a collective bargaining agree

ment. What Wisconsin requires is that the collective

bargaining agreement be ignored, to the extent that it

ets lower wages or hours than state law specifies. Cf

Lingle I Norge Dit LSLOML OF Magic Chef, Ine : 186 |

399 (1988) (state rules that disregard, rather than

interpret, collective bargaining agreements are not

preempted by federal labor policy). Suppose the CBA

et a wage of $8 per hour, higher than the current

federal minimum wage of $7.25, while Wisconsin law

et a minimum wage of $8.25. (Wisconsin’s actual

minimum wage is $7.25, but some states, including

Illinois, use $8 25.) No one would contend that the

employer could pay the workers $7.25 an hour, even

though that is allowed by federal law if labor and

management agree (this is the same sense that

excluding donning and doffing time is allowed by

§203(0)). Which rate would prevail: $8 from the CBA

or $8.25 from state law? According to §218(a), the

employer must pay $8.25 an hour; state law super-

sedes the collective bargaining agreement. And if this

is so about the wage per hour, it is equally true about

the number of hours

Nothing that labor and management put in a

collective bargaining agreement exempts them from

state laws of general application. If a CBA were to

say: “the workers will receive the minimum wage

under FLSA, and not one cent more no matter what

state law provides,” that would be ineffectual. So too

App. 7

would an agreement along the lines of: “Because our

base hourly rate is more than 150% of the minimum

wage, we need not pay overtime rates under state

law.” States can set substantive rules that determine

the effective net wage, even when a CBA plays a role

as it does when a law requires overtime pay at some

multiple of the base pay set in a collective bargaining

agreement). Every state’s overtime-compensation rule

could affect collective bargaining — knowing that state

law requires pay at time-and-a-half, labor and man

agement might agree to a lower base rate per hour

but that effect would not prevent application of the

tate’s wage-and-hour statutes

Management and labor acting jointly (through a

CBA) have no more power to override state substan

tive law than they have when acting individually

Imagine a CBA saying: “Our drivers can travel at 85

mph, without regard to posted speed limits, so that

they can deliver our goods in fewer compensable

hours of work time.” That clause would be ineffectual

And a CBA reading instead that “our drivers can

travel at a reasonable rate of speed, no matter what

state law provides” would be equally pointless. Mak

ing a given CBA hard to interpret and apply (as the

word “reasonable” would be) would not preempt state

law on the theory that states must leave the interpre

tation of CBAs to the National Labor Relations Board

and the federal judiciary; states would remain free to

enforce laws that disregarded CBAs altogether. That

is what Wisconsin does when determining which

donning aiid doffing time is compensable.

A Ppp re

The district court therefore did not « in con

cluding that plaintiffs are entitled to be paid for all

time required by Wisconsin law, and the judgment 1

NE} ray

IN THE UNITED STATES DISTRICT COUR)

FOR THE WESTERN DISTRICT OF WISCON

JEFF SPOERLE, NICK LE!

KATHI SMITH, JASON

KNUDTSON, on behalf of

themselves and all other

who consent to become

Plaintiffs and similarly

ituated emp!

IN¢ () r Mave

Divisi

be] l

riaintil hell l } ar '

ind Jason Knudtson brought t! ( bined colle

iction under the federal Fan iber Standard

ind cla action inde! Lal law ontendlnyg Ul!

hourly emp! ver at the Oscar Maver p mt n Nia

on, Wisconsin should be paid tor the time spen

lonning and dotting a number ol afety and init

tion article and walking to ind from their worl

tations at the bepinning and end of their shift

its original motion for summary judgment, defend:

Kraft Foods Global, Inc. argued that federal law d

not require compen ation because these activitie

within several exceptions to the FLSA definition

‘work” involving “preliminary nd postliimina

(jt

fall

App. 12

boots, or work boots), hairnets, beard nets (if an

employee has a beard), hard hats or bump caps,

frocks or career clothing (shirt, pants and jacket). The

footwear and career clothing generally are worn in

place of plaintiffs’ own clothes; the frocks are worn

over those clothes.

Plaintiffs are not permitted to remove any of the

articles from the plant. The articles are stored in or

near the locker room. Plaintiffs may don the articles

there or on their way to the production area, where

the time clock is. The process is reversed at the end of

the shift; after plaintiffs clock out, they may remove

the articles and return them to the area they are

stored. Depending on each plaintiff’s department, it

takes between five and twelve minutes to don and

doff these articles and walk to and from the locker

room and production area.

Since 1985, defendant has not paid its employees

for donning and doffing these articles, pursuant to

the coliective bargaining agreement between defen-

dant and plaintiffs’ union.

OPINION

The focus of the parties’ remaining disputes is

the proper scope of 29 U.S.C. § 203(0):

Hours Worked. — In determining for the pur-

poses of sections 206 and 207 of this title the

hours for which an employee is employed,

there shall be excluded any time spent in

changing clothes or washing at the beginning

App. 13

or end of each workday which was excluded

from measured working time during the

week involved by the express terms of or by

custom or practice under a bona fide collec-

tive-bargaining agreement applicable to the

particular employee.

As now constituted, the case raises two questions:

(1) are the articles that plaintiffs are required to don

and doff exempt from the requirements of the FLSA

because they are “clothes” within the meaning of 29

U.S.C. § 203(0); and (2) if -~hey are exempt, does

§ 203(0) preempt Wisconsin law that does not contain

an exception for “changing clothes”? (I do not address

the issue that some courts have, e.g., Figas v. Horse-

head Corp., 2008 WL 4170043, *6 (W.D. Pa. Sept. 3,

2008), which is whether the donning and doffing of

the articles qualifies as “changing” within the mean-

ing of § 203(0), because the parties do not raise it.)

With respect to the question under § 203(0), in

the December 31, 2007 order, I rejected the “I know it

when I see it” approach to defining the term “clothes”

advanced by defendant. In the cases defendant relied

on at summary judgment, courts had concluded that

certain articles used for safety and sanitation were

“clothes” without explaining why or providing a

definition of the term. E.g., Anderson v. Cagle’s, Inc.,

488 F.3d 945, 955-56 (11th Cir. 2007); Beyil v. Ethicon,

Inc., 269 F.3d 477, 480 n. 3 (5th Cir. 2001); Kassa uv.

Kerry, Inc., 487 F. Supp. 2d 1063, 1067 (D. Minn.

2007). Instead, I followed the lead of the court in Fox

v. Tyson Foods, Inc., No. CV-99-BE-1612-M, 2002 WL

App. 14

32987224, *11 (N.D. Ala. Feb.4, 2002), in which the

court had noted that “changing clothes” is “e1 every-

day, plain-language term that describes what most

people do every day — taking off pajamas to put on

work clothes in the morning, or taking off dress

clothes to put on casual wear in the evening.” Under

“(tlhis view, the relevant questions [are] straight

forward: Is the article something the employee would

normally wear anyway (or does it replace such cloth-

ing)? Or is it something the employee wears in addi-

tion to those clothes and is required to do so for a job-

related reason?” Spoerle, 527 F. Supp. 2d at 867. See

also Hoyt v. Ellsworth Co-op. Creamery, 579 F. Supp.

2d 1132, 1137 (W.D. Wis. 2008) (Shabaz, J.) (adopting

same definition); Perez v. Mountatre Farms, Inc., No.

CIV. AMD 06-121, 2008 WL 2389798, *3 (D. Md. June

10, 2008) (same). Because the parties had adduced

little evidence regarding the nature and purpose of

the articles at issue, I concluded that defendant had

failed to show as a matter of law that the articles met

this standard.

Without saying so explicitly, defendant is seeking

reconsideration of the summary judgment order by

asking for a new interpretation of § 203(0). In particu-

lar, defendant argues that the meaning of “changing

clothes” should be governed by the collective bar-

gaining agreement so long as that agreement is

“bona fide.” Not surprisingly, defendant believes that

the standard is met in this case and that the court

should give “deference” to the collective bargaining

App. 15

agreement, which does not require compensation for

donning and doffing the articles in dispute.

Defendant’s position has some surface appeal.

From the courts’ perspective, it could eliminate the

task of construing an ambiguous statutory term.

From the employers’ and employees’ perspectives, it

é : } I

could provide greater certainty over the scope of their

respective rights and obligations because one need

only consult the collective bargaini.:g agreement to

determine whether donning and doffing particular

items is a compensable activity.

A closer view of defendant’s proposal reveals

serious flaws. For one thing, it collapses a two-part

question under the statute into a single inquiry.

Under § 203(0), donning and doffing particular arti-

cles may he excluded from an employee’s “hours

worked” if two conditions are met: (1) the activity is

excluded from compensation “by the express terms of

or by custom or practice under a bona fide collective-

bargaining agreement”; and (2) the activity consti-

tutes “changing clothes.” Figas, 2008 WL 4170048, at

*6§ (“Inherent in this defense [under § 203(0)] are two

separate elements”). Under defendant’s view, once it

is determined that the act of donning and doffing

particular articles is not protected by the collective

bargaining agreement, the analysis is complete. In

other words, if the collective bargaining agreement

does not require compensation for donning and doffing,

it necessarily means that the articles are “clothes”

within the meaning of § 203(o).

App. 16

The problem with this view is that Congress gave

no hint in the statute that the task of interpreting

§ 203(0) should be relegated to employers or unions.

Ordinarily, questions of statutory construction are the

province of the judiciary. United States v. American

Trucking Ass’ns, 310 U.S. 534, 544 (1940) (“The

interpretation of the meaning of statutes, as applied

to justiciable controversies, is exclusively a judicial

function.”). Defendant fails to point to even one other

example in which private parties have binding au-

thority to constrie a statute, or, as defendant sug-

gests even more boldly, in which the meaning of a

word in a statute can vary from case to case, depend-

ing on the individualized interpretavion in a collective

bargaining agreement. By their nature, statutes are

meant to create rules of conduct that govern everyone

the same. I would not depart from this basic principle

of law without strong evidence of congressiona.

intent, evidence that defendant has failed to provide.

Perhaps realizing the problems its approach

poses, defendant puts a qualifier on it, saying that

courts may provide their own definition when the one

in the collective bargaining agreement is “patently

unreasonable” or otherwise unfair. Dft.’s Br., at 2,

dkt. #277. This qualifier seems to be an attempt by

defendant to align itself with those courts that have

distinguished “specialized protective gear” from “non-

unique protective gear,” concluding that the latter

qualifies as “clothes” under § 203(0) but the former

does not. E.g., Anderson, 488 F.3d at 955-56; Alvarez

v. IPB, Inc., 339 F.3d 894 (9th Cir. 2003); Kassa, 487

App. 17

F. Supp. 2d at 1067. Defendant says that the ap-

proach in these cases is consistent with its own

because items that are “extensive, unique and bur-

densome to don and doff ... are far less likely to fit

into any good faith, shared definition of ‘clothes.’”

Dft.’s Br. at 21, dkt. #277.

Once defendant qualifies its position in this way,

any practical benefits it might have disappear. De-

fendant argues that a problem with this court’s

interpretation of § 203(0) is that it “leaves so many

open questions only resolvable on a case-by-case

basis.” Dft.’s Br., at 17, dkt. #277. To the extent this is

true, defendant’s approach does not solve that prob-

lem. Instead of arguing over whether an article is

something an employee would wear anyway, parties

employing defendant’s proposed standard would

argue over whether articles are sufficiently “exten-

sive, unique and burdensome,” which are far from self

defining terms. Thus, adopting defendant’s view

would not eliminate the need for the difficult line

drawing that defendant criticizes; it would simply

move the line in a direction that favors the employer.

More important, the distinction defendant would

make between “burdensome” or “unique” articles and

any other safety or sanitation equipment has no basis

in the statute or in the ordinary meaning of clothes.

Thus, defendant’s view would return courts to the

“IT know it when I see it” approach I rejected in the

summary judgment order.

Although I do not find defendant’s view of

§ 203(0) persuasive, I agree that the law in this

App. 18

circuit is not the blank slate it was at the time of the

summary judgment order. In Pirant v. United States

Postal Service, 542 F.3d 202, 208-09 (7th Cir. 2008),

the court considered whether, under the Family

Medical Leave Act, the time spent by a postal service

employee donnin and doffing “gloves, shoes and [a]

work shirt” was werk time that could be counted

toward qualifying under the Act. After noting that the

FMLA is governed by the same standards as the

FLSA, the court cited Steiner v. Mitchell, 350 U.S.

247, 256 (1956), for the proposition that “changing

clothes” is a noncompensable “preliminary” or “post-

liminary” act under 29 U.S.C. § 254(a) of the FLSA

unless “those activities are an integral and indispen-

sable part of the principal activities for wnich covered

workmen are employed.” Finally, the court concluded

that the plaintiff’s donning and doffing was not

compensable because she “was not required to wear

extensive and unique protective equipment.” Pirant,

542 F.3d at 209.

I agree with plaintiffs that Pirant is distinguish-

able from this case in a number of ways. Most nota-

ble, the court was not applying § 203(0), but rather

the FLSA exception under § 254(a) regarding “prelim-

inary” and “postliminary” activities, which is no

longer at issue in this case. (Originally, defendant

raised a defense under § 254(a), but withdrew it as

part of the settlement.) In addition, the articles at

issue in this case are different from the articles in

Pirant, which were simply a uniform and thus would

fall under any definition of “clothes.” Spoerle, 527

ees

App. 19

F. Supp. 2d at 867 (“Under this [court’s] understand-

ing of ‘changing clothes,’ putting on a uniform would

not be covered under the FLSA under ordinary cir-

cumstances, but donning and doffing equipment used

to protect against hazards particular to the workplace

would be covered.”)

Although Pirant is not on all fours with this case,

it cannot be set aside as easily as plaintiffs suggest.

The analysis under § 254(a) is closely related to the

one under § 203(0) in the context of donning and

doffing, particularly in light of this court’s summary

judgment order. Both require a court to examine the

nature and purpose of the article. If an article is not

“integral and indispensable” under Steiner for safety

or other job-related reasons, this makes it more

difficult to argue that the article is protective equip

ment rather than clothes under § 203(0). E.g., Figas,

2008 WL 4170043, at *18 (discussing interaction of

§ 203(0) and § 254(a)). Further, even though the

articles at issue in Pirant were different from those in

this case, the standard suggested by the court goes

beyond the particular facts of the case. In concluding

that the donning and doffing was not compensable,

the court noted that the articles were not “extensive

and unique protective equipment.” Prrant, 542 F.3d at

209. Although the court did not cite any cases for this

approach, it is evocative of the approach I rejected

from cases like Anderson and Kassa. lf that standard

were applied to the articles in this case, it is unlikely

that plaintiffs could meet it

App. 20

Pirant is not the only potential problem for

plaintiffs. In the summary judgment order, I rejected

defendant’s argument under § 203(0) in part because

defendant had proposed so few facts about the arti-

cles that it was impossible to tell whether or not they

were “clothes” under this court’s interpretation of

that term. Now, however, the facts show that some of

the articles at issue are worn as replacemen 3 for

clothes that plaintiffs would wear anyway, which is a

key part of this court’s definition.

Although Pirant may leave the state of federal

law in this circuit unclear and the facts in this case

may cast some doubt on plaintiffs’ ability to meet the

standard under § 203(0) set forth in the summary

judgment order, I need not resolve these questions.

The parties agree that plaintiffs are entitled to full

relief under the terms of the settlement if they suc-

ceed on their federal law claims under the FLSA or

their state law claims under Wis. Stat. §§ 109.03 and

103.02. Under their settlement, the parties agree that

Wisconsin law requires compensation for donning and

doffing the items at issue because it does not include

a counterpart to § 203(0). Defendant raises no defens

es related to the scope of state law. The only defense

it raises is that the state laws are unenforceable

because they are preempted by federal law. Thus,

unless defendant is right about preemption, plaintiffs

win. Because I conclude that defendant is wrong on

this issue, I will enter judgment in favor of plaintiffs.

Defendant’s theory of preemption is that § 203(0)

conflicts with any claims under state law that would

App. 21

require it to compensate plaintiffs for donning and

doffing the articles at issue in this case. (I will as

sume for the purpose of considering defendant's

preemption arguments that the articles are “clothes”

within the meaning of § 203(0).) Under a theory of

conflict preemption like the one defendant asserts,

the standard is a relatively general one, which is

“whether state law differs from federal law in such a

way that achievement of the congressional objective

is frustrated.” Aux Sable Liquid Products v. Murphy

526 F.3d 1028, 1034 (7th Cir. 2008) (internal quota

tions and alterations omitted)

Defendant identifies three other types of preemp

tion under § 301 of the Labor Relations Management

Act and under the theories set forth in San Diego

Building Trades Council v. Garmon, 359 U.S. 236

(1959), and Lodge 76, International Associationn of

Machinists and Aerospace Workers, AFL-CIO v. Wi

consin Employment Relations Commission, 427 U.S

132 (1976), but 1t does not develop any argument wit!

respect to these theories. Although defendant says it

does not intend to waive those argument hat 1

exactly what it has done by failing to d » them

E.g., General Auto Service Station v. City « hicago,

596 F.3d 991, 1006 (7th Cir. 2008); Pruitt

Chicago, Illinois, 472 F.3d 925, 930 (7th Cir. 2006)

In attempting to show that § 203(0) preempt

more generous state laws, defendant faces an uphill

battle. Any preemption analysis begins with two basic

principles: the intent of Congress always controls and

the presumption is that Congress does not wish to

App. 22

interfere with the state’s power to provide for the

welfare of its people. Wyeth v. Levine, 129 5. Ct. 1187

1194-95 (2009). “That assumption applies with par

ticular force when Congress has legislated in a field

traditionally occupied by the States,” Altria Group,

Inc. v. Good, 129 S. Ct. 538, 543 (2008), such as labor

law. Anderson v. Sara Lee Corp., 508 F.3d 181, 193

(4th Cir. 2007) (“There is a strong presumption that

Congress, in enacting the FLSA for the benefit of

workers, did not intend to override the States’ trad:

tional role in protecting the health and safety of thei

citizens.”). A party arguing that federal law preempts

a state law must show that was “the clear and man)

fest purpose of Congress.” Wyeth, 129 5. Ct. at 1195

Defendant’s burden becomes even heavier when

one considers that the general purpose of the FLSA 1:

to prevent “labor conditions detrimental to the

maintenance of the minimum standard of living

necessary for health, efficiency, and general well

being of workers.” 29 U.S.C. § 202(a). Defendant

could not argue successfully that such a purpose i:

frustrated by a statute that seeks to insure full

compensation to employees for all of the work that

they do

Perhaps defendant's biggest obstacle | the

express savings clause that Congress included in the

FLSA. Under 29 U.S.C. § 218(a), “No provision of thi

chapter ... shall excuse noncompliance with any

Federal or State law or municipal ordinance estab

lishing a minimum wage higher than the minimum

wage established under this chapter or a maximum

work week lowe! than tne rAAIINU WOTKWeECH {

tablished under thi: chapter

Defendant attempts to avoid the effect of 9 213(a

with a single sentence in its opening brief in which 11

tate that “ tihe right to remove compensation fo!

clothes changing from the collective bargaining tabl

is noticeably absent from this clause.” Dit.’s Br., at 3:

dkt. #277. This is reading § 218(a) and § 203(0) t

narrowly. The question under § 218(a) is not whether!

a particular activity is expressly enumerated unde!

the statute, but whether the state law can be di

cribed as setting a higher minimum wage

maximum work week than federal! law

The tats law provision Al Lit nm wl

Wi Stat. $$ 103.02 and 109.03 (and the implement

ing regulations in Wi Admin ode Ch 272 and

2/4) are Wape and nou! law Section 103.0 ,wovertl

the maximum number of hour employer may be

required to work without being paid overtime ect

109.03 govern mat payment ol wow pection 206

imply a method for calculating “jou worked

the context of 68 206 and 207 of the FI \ which are

the federal analogs to §§ 103.02 and 109.03. Muell

Thompson 133 F.3d 1063, 1064 lth Cn 1YY

noting substantial ove rlap between FLSA and Wi)

‘tat. $88 109.03 and 103.02). In particular ecti

203(0) define ih jou w lorked for the purpose

if sections 206 and 20% o that “time pent in char

ing clothe ‘excluded” from the calculation if th

vue has been addressed by a collective bargain

}

hud

calculation

under pDown

clothe De Ke,

Ipp

App. 26

Apr. 10, 2008), the courts reviewed the legislative

history behind § 203(o) and concluded that it did not

support a finding of preemption. Rather, the history

showed that Congress was interested in limiting the

requirements of federal law; there was no evidence to

suggest that it was seeking to override § 218(a). Car-

gill, 2008 U.S. Dist. Lexis 31824, at *72-74; Chavez,

2005 U.S. Dist. Lexis 29714, at *118-20. Defendant

cites no cases in which a court has come to a contrary

conclusion.

The federal bias toward collective bargaining

may lead to the preemption of some state laws or

causes of action, but generally this has been when

state laws create a risk of taking away employee

rights provided by collective bargaining or becoming

entangled in the collective bargaining process, not

when state laws add a right that is independent from

the agreement. Livadas v. Bradshaw, 512 U.S. 107,

118 (1994) (preemption appropriate when law im-

poses “penalty on those who complete the collective-

bargaining process” or “those who participate in the

process”); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985) (state law cause of action preempted when it

would require interpretation of collective bargaining

agreement). In Livadas, 512 U.S. at 130, the Court

could not have stated it more clearly: “[W]e have

never suggested that labor law’s bias toward bargain-

ing is to be served by forcing employees or employers

to bargain for what they would otherwise be entitled

to as a matter of course.” See also Lingle v. Norge

Division of Magic Chef, Inc., 486 U.S. 399, 409-10

App. 27

(1988) (no preemption when adjudication of “substan-

tive mghts a State may provide to workers ... does

not depend upon the interpretation of [collective

bargaining] agreements”); Douglas v. American

Information Technologies Corp., 877 F.2d 565, 569

(7th Cir. 1989) (“[Fjederal labor policy does not pre-

vent states from providing workers with substantive

rights independent of the collective bargaining rela-

tionship.”) Defendant fails to cite even a single exam-

ple in which a court found a state law preempted

because it provided more rights than would otherwise

be provided in a collective bargaining agreement.

Defendant includes a short discussion ir its

opening brief regarding “field preemption,” but it is

nothing more than a restatement of its position that

§ 203(0) conflicts with more generous state laws.

Accordingly, it is unnecessary to consider that argu-

ment separately.

ORDER

IT IS ORDERED that the motion for summary

judgment filed by plaintiffs Jeff Spoerle, Nick Lee,

Kathi Smith, and Jason Knudtson, dkt. #279, is

GRANTED, and defendant Kraft Foods Global, Inc.’s

motion for final judgment, dkt. #276, is DENIED. The

clerk of court is directed to enter judgment in favor of

plaintiffs. The parties shall determine damages in

accordance with the settlement agreement.

App. 28

Entered this 16th day of June, 2009.

BY THE COURT

BARBARA B. CRABB

District Judge

App. 29

0927 F.Supp 2d 560

United States District Court,

W.D. Wisconsin.

Jeff SPOERLE, Nick Lee, Kathi Smith,

Jason Knudtson, on behalf of themselves and

all others who consent to become Plaintiffs

and similarly situated employees, Plaintiffs,

KRAFT FOODS GLOBAL, INC.,

Oscar Mayer Foods Division, Defendant

No. 3:07-cv-00300-bbc.

Dec. 31, 2007.

Kurt C. Kobelt, Lawton & Cates, S.C., Madison, WI.

for Plaintiffs.

Daniel A. Kaplan, Foley & Lardner, Madison, WI, for

Defendant.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

This case presents a straightforward quest‘on:

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

219, require defendant Kraft Foods Global, Inc., to

pay its employees for time they spend putting on and

taking off items of safety and sanitation equipment

that defendant's policies and federal law require the

employees to wear?

Plaintiffs contend that they are entitled to com-

pensation because donning and doffing the equip-

ment constitutes “work” under the FLSA. Although

App. 30

defendant does not dispute plaintiffs’ basic character-

ization, it argues that the work is not compensable

under several of the statute’s exceptions involving

“preliminary” and “postliminary” activities, “changing

clothes” and “de minimis” acts.

In addition to their claim under the FLSA, plain-

tiffs assert state law wage and hour claims under

Wis. Stat. §§ 109.03 and 103.02, as well as a claim for

violations of Wis. Admin. Code §§ DWD 272.10 and

274.06, which impose requirements for employer

record keeping. Defendant contends that plaintiffs’

state law claims are barred under several theories of

preemption and that Wisconsin law does not recog-

nize a private right of action for plaintiffs’ record

keeping claim.

Plaintiffs filed this suit as a purported class

action but they have not yet moved for class certifica-

tion. They have stipulated with defendant to refrain

from seeking class certification until the court re-

solves the defendant’s motion for summary judgment.

Having reviewed the parties’ submissions, I conclude

that defendant’s motion for summary judgment must

be denied in most respects. On the current record,

I cannot conclude as a matter of law that the donning

and doffing of the equipment at issue in this case is

excluded from the protections of the FLSA. With

respect to plaintiffs’ state law claims, none of defen-

dant’s preemption arguments is persuasive. However,

because plaintiffs have failed to show that they have

a right to sue for enforcement of the record keeping

App. 31

requirements, I will grant defendant’s motion for

summary judgment with respect to that claim.

From the parties’ proposed findings of fact and

the record, I find the following facts to be undisputed.

UNDISPUTED FACTS

Defendant Kraft Foods Global, Inc. operates a

meat processing plant in Madison, Wisconsin through

its Oscar Mayer Foods Division. Plaintiffs Jeff

Spoerle, Nick Lee, Kathi Smith and Jason Knudtson

are employees at the plant.

Defendant tracks its employees’ hours of work

using time clocks, which are located throughout the

plant, typically might outside the “production area.”

Using a credit card-like badge, employees clock in

just before entering the production area and clock out

for meals and at the end of their shift when they

leave the production area.

er federal law and company policy, employees

who work in the production area must wear various

items of “personal protective equipment.” This

equipment includes a hard hat or bump cap, steel-

toed shoes or sanitation boots, ear plugs, hairnet and

beard net, safety glasses, a freezer coat (if necessary),

gloves, plastic gloves, paper frock or plastic apron,

sleeves, slickers (for einployees that work in wet

areas) or a cotton frock (employees may choose to

wear «cotton pants and a shirt instead, which the

App. 32

parties refer to as “career clothes”). Employees may

be disciplined for failing to wear this equipment.

Employees must put on some of these items

before clocking in. Employees retrieve and put on

cotton frocks or career clothes and steel-toed shoes or

sanitation boots in a locker room at the plant. On

their way to clocking in, employees put on ear plugs,

hairnets and beard nets, which are kept in bins near

the locker room. (The parties do not identify where

employees put on hard hats, bump caps, safety

glasses and freezer coats, but they agree that em-

ployees must put on these items before clocking in.)

All of these items are owned by defendant and stored

at the plant. After walking to the time clock and

swiping their time cards, employees put on plastic

gloves, aprons and slickers. (Neither side proposes

any facts regarding what happens at the end of the

shift, but it is reasonable to infer that it is the same

as the beginning of the shift, that is, employees are

paid for taking off gloves, aprons and slickers, but not

for doffing the other items or for walking back to the

locker room. )

The current collective bargaining agreement

between plaintiffs and defendant does not guarantee

compensation for the time spent donning and doffing

personal protective equipment.

“on “ot

dio)

App. ;

OPINION

A. Fair Labor Standards Act

Although the Fair Labor Standards Act includes

many different provisions, its core requirement can

be reduced to a simple and now uncontroversial

proposition: employers must pay their employees a

wage for all of the “work” *hat they do. 29 U.S.C.

§§ 206 and 207; Smith v. Aztec Well Servicing Co., 462

F.3d 1274, 1285 (10th Cir.2006); Alvarez v. IBP, Inc.,

339 F.3d 894, 902 (9th Cir.2003). There are two

related exceptions to this rule that are relevant to

this case. Work may not be compensable under the

FLSA if it (1) is “preliminary to or postliminary to”

the employee’s “principal” activities and if it occurs

“prior to” or “subsequent to” the “workday,” 29 U.S.C.

§ 254(a)(2); or (2) consists of “changing clothes,”

29 U.S.C. § 203(0). A third non-statutory exception

has been carved out by the courts, which is whether a

particular activity is “de minimis.”

The FLSA does not define “work,” but the Su-

preme Court has construed it broadly. One commonly

cited definition comes from Tennessee Coal, [ron &

Rail Co. v. Muscoda Local No. 123, 321 U.S. 590, 598,

64 S.Ct. 698, 88 L.Ed. 949 (1944): “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.” But even this view may sound more re-

strictive than it actua: 7 is. The reference to “physical

or mental exertion” does not mean that only heavy

App. 34

labor and solving equations are covered. The Court

has placed much greater emphasis on “[wJhether time

is spent predominantly for the employer’s benefit or

for the employee’s,” Armour & Co. v. Wantock, 323

U.S. 126, 133-34, 65 S.Ct. 165, 89 L.Ed. 118 (1944), on

njothing in the statute or in reason

the ground that “

demands that every moment of an employee's time

devoted to the service of his employer shall be directly

productive.” Tennessee Coal, Iron & Rail Co., 321 U.S.

at 599, 64 S.Ct. 698; see also Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 691, 66 S.Ct. 1187, 90 L.Ed.

1515(1946) (concluding that nonproductive activity

was “work” because it “was under the complete con-

trol of the employer”). Thus, the Court has concluded

that “work” encompasses activities such as traveling

on a railcar through a mine shaft, watching and

guarding a building, Tennessee Coal, Iron & Rail Co.,

321 U.S. at 599, 64 S.Ct. 698, and even standing and

waiting, Armour & Co., 323 U.S. at 133-34, 65 5.Ct.

165.

Defendant does not refute plaintiffs’ assertion

that donning and doffing the personal protective

equipment is “work” under the Supreme Court's

definition. Rather, it argues that plaintiffs’ conduct

falls within the exceptions listed above. I will con

sider each of those in turn.

1. Preliminary and postliminary activities

Under the Portal-to-Portal Act, certain activities

are withdrawn from the pay mandates of the FLSA,

App. 35

including “activities which are preliminary to or post

liminary to [a] principal activity or 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.”

29 U.S.C. § 254(a). Defendant believes that the don-

ning and doffing of protective equipment constitutes

noncompensable “preliminary” and “postliminary”

activities.

Defendant’s view might be plausible looking at

the language of the statute in isolation, but it is

completely untenable in light of the Supreme Court’s

interpretations of the statute. The question in Steiner

v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267

(1956), was whether chemical plant employees were

engaging in “preliminary”

ties under § 254(a) when they showered and changed

their clothes immediately before and after working

with toxic chemicals. After reviewing the statute’s

legislative history, the Court concluded that Congress

“did not intend to deprive employees of the benefits of

the Fair Labor Standards Act where they are an

integral part of and indispensable to their principal

activities.” Jd. at 256, 76 S.Ct. 330. Applying this stan-

dard, the Court quickly rejected the employer’s argu-

ment that the Portal-to-Portal Act relieved it of the

obligation to pay its employees for the activities in

and “postliminary” activi-

dispute, stating that “it would be difficult to conjure

up an instance where changing clothes and showering

are more clearly an integral and indispensable part of

App. 36

the principal activity of the employment than in the

case of these employees.” /d

In light of Steiner, it is difficult to credit any

argument that the Portal-to-Portal Act applies in this

case. Like the clothes changing in Steiner, plaintiffs’

donning of equipment is performed for the purpose of

protecting the employee from work-related hazards

and occurs immediately before entering the produc

tion area. Because plaintiffs need to put on the

equipment in order to perform their job safely, their

doing so is “an integral and indispensable part” of a

“principal activity.”

It is indispensable and integral in another sense

as well because plaintiffs are required by both com

pany policy and federal law to don and doff the equip

ment. Ballaris v. Wacker Siltronic Corp., 370 F.3d

901, 911 (9th Cir.2004) (whether activity is required

by employer is relevant to question whether activity

is integral and indispensable part of principal activi

ties); Davis v. Charoen Pokphand (USA), Inc., 302

F.Supp.2d 1314, 1322 (M.D.Ala.2004) (same). In fact,

employees at defendant’s plant who fail to don the

equipment may be subject to discipline. Thus, plain

tiffs may not perform their jobs without the equip

ment.

Further, plaintiffs must don and doff the equip

ment at the plant, immediately before and after their

productive activities. Employees do not have the

option of keeping the equipment at home. Lemmon v

City of San Leandro, No. C 06-07107 MHP, 2007 WL

1326743, *5 (N.D.Cal. Dec.7, 2007) (noting that court

have found donning and doffing to be principal a

tivity under Steiner when occurring at work plac

Abbe v. City of San Diego, No O5cevl629 DM!

(JMA). 06cev0538 DMS (JMA), 2007 WL 4146696

(S.D.Cal.2007) (same)

Defendant contends that these tacts are insult

cient to establish a “pring ipal activity,” citing Gormar

v. Consolidated Idison Corp., 488 F.3d 586. 593 (2d

Cir.2007). which read Steiner as being Iimited to

workplace dangers that transcend ordinary ri

‘he court reasoned as follow

At issue in Sleiner was exposure to corr

and toxic substances that permeated

tery plant; at issue here 1s the security

nuclear power plant. The analogy is, how

ever, unsustainable Without the taking

of the measures required, the environment

of the battery plant could not sustain hfe

given the toxic substances in liquid, solid

powder and vapor form (and in the dust ol

the air) that “permeate|d] the entire [bat

tery] plant and everything and everyone in

it.” Steiner therefore supports the view that

when work is done in a lethal atmosphere

the measures that allow entry and immer!

sion into the destructive element may be in

tegral to all work done there, just as a dive!

donning of wetsuit, oxygen tank and mouth

piece may be integral ¢ the work eve!

though it is not the Cund 1 ti

aal employer vist aon

fa citacil oOrmitllved

his interpretation ol D

ihe court appeal LO tbe iving Ul tne HiT |

Siemmer doe not apply unis th ork |! gone

lethal atmo phe re In other word if Liye cl

nec ary Lo pre vent the employer Iron Lua

lying, itis not “integral” to a principal a ity. Fro

! public policy pe! pective aan reading 1 obviou

troubling hecause it reat mu mmifortable d Lil

tion between hazards that k) d hazards th

naim (or pose ol iva? rk of death ma ( | |

in employe entitled to omy r) ! '

ne herself from the former o

Fortunately, ¢ aor ppol

tinction. Although it is true that the fact

nvolved life-threatening msi LI (Court did |}

imit its holding to that Luatliol bul qa on L}

the facts before it presented or of the eal

example of an activity that w inteyral and « pe

able to the principal activity. Sfeiner, do0 | if

Anis ib &s.Ct 330 Further Line legislative histor

ted by the Court distingul hed between a job that

Lne « mployt e “could not pee rform ithout puthil

on certain clothe and an activity that wa mere

convenience to the employee and not directly related

Lo the pecitn work.” /d. at 258. 76 S.Ct. 330. Because

the e juUIpment in this case 1s donned for! alely pul

posi and required by la nd compal poll

App. 40

room (where the protective gear is donned and doffed)

and the production area. Id. at 34, 126 S.Ct. 514.

After Alvarez, there can be little doubt that

donning and doffing protective gear at the beginning

and end of the workday are “principal activities”

under the Portal-to-Portal Act. The Court could not

have reached its conclusion regarding the walking

time without concluding that donning and doffing

protective gear are compensable activities. Bishop uv.

United States, 72 Fed.Cl. 766, 780 (Fed.Cl.2006)

(concluding that in Alvarez Supreme Court “endorsed”

the court of appeals’ conclusion that donning and

doffing of protective gear are “principal activities”).

Further, the Court did not suggest that donning and

doffing time was compensable only if the relevant

gear was necessary to protect the employee from “a

lethal atmosphere.”

Defendant points to one sentence in Alvarez, 546

U.S. at 40, 126 S.Ct. 514, in which the Court stated

that preshift activities may be “necessary” but still

not “integral and indispensable” to a “principal activ-

ity.” However, the Court made that observation in the

context of discussing the time employees may wait

before donning their equipment and after doffing it,

an activity that is not at issue in this case. Further, in

concluding that such waiting time was “preliminary”

and “postliminary,” the Court emphasized that it was

“two steps removed from the productive activity on

the assembly line,” id. at 42, 126 S.Ct. 514, and that,

“unlike the donning of certain types of protective

gear, which is always essential if the worker is to do

App. 41

his job, the waiting may or may not be necessary in

particular situations or for every employee,” /d. at 40,

126 S.Ct. 514 (emphasis in original). Thus, although

the sentence defendant cites may suggest that the

line between “preliminary” and “principal” activities

will not always be a clear one, there is no room left to

argue after Alvarez that donning and doffing of pro-

tective gear are not “principal activities” within the

meaning of the Portal-to-Portal Act.

Defendant cites Reich v. Oscar Mayer Foods

Corp., No. 4:93CV204, 1995 WL 1765643, *2 (E.D.Tex.

Mar.2, 1995), which concluded that donning and

doffing safety equipment were “preliminary” and

“postliminary” to a “principal activity” under the

Portalto-Portal Act. However, the reasoning of Reich

is conclusory and it was decided before the Supreme

Court decided Alvarez. I do not find Reich to be

persuasive.

2. Changing clothes

Defendant’s second line of defense is 29 U.S.C.

§ 203(0), which states:

In determining for the purposes of sections

206 and 207 of this title the hours for which

an employee is employed, there shall be ex-

cluded 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 of or by custom or practice

under a_ bona fide collective-bargaining

App. 42

agreement applicable to the particular em-

ployee.

For the purpose of this case, § 203(0) applies if two

conditions are met: (1) the activity at issue consti-

tutes “changing clothes”; and (2) the collective bar-

gaining agreement excludes “changing clothes” from

compensation. There is no dispute that the parties’

collective bargaining agreement excludes from com-

pensation any time spent changing clothes. The

question is whether donning and doffing protective

equipment constitute “changing clothes” under the

statute.

The FLSA does not provide a definition for clothes,

leaving the courts to struggle to come up with their

own. But even the most liberal construction would

not encompass some of the items at issue, such as

earplugs and safety goggles, a point that defendant

does not deny. Dft.’s Br., dkt. #13, at 11 (acknowledg-

ing that earplugs and hair nets may not be “clothes”).

Although defendant argues that the remaining arti-

cles are “clothes” under § 203(o0), it fails to provide its

own definition. Instead, it simply cites a few cases

that have found similar articles to fall under the

exclusion. None of these cases is persuasive. Like

defendant, the court in one case concluded that the

items at issue fell within § 203(0) but it failed to

provide any definition of clothes. Kassa v. Kerry, Inc.,

487 F.Supp.2d 1063, 1067 (D.Minn.2007). The others

simply adopt a definition of “clothes” as anything

that covers the body, with little or no explanation.

Anderson v. Cagle’s, Inc., 488 F.3d 945, 955-56 (11th

App. 43

Cir.2007); Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3

(5th Cir.2001).

The view of the courts in Anderson and Beyil is

inherently problematic because even those courts

(and defendant) acknowledge that some articles used

to cover the body may not be properly included within

the meaning of “clothes” under § 203(0), such as

armor or a space suit. Dft.’s Br. at 10; Anderson, 488

F.3d at 955 (“We recognize that there may be limits to

the application of § 203(0) based on the nature or

purpose of the garments at issue.”); see a/so Kassa,

487 F.Supp.2d at 1067 (“whether a particular item of

protective gear should be considered ‘clothes’ under

§ 203(0) depends on the exact nature of the item and

the exact circumstances under which it is used”).

Neither defendant nor these courts have provided a

rationale for this distinction or a principle for deter-

mining when articles of protective gear are “clothes”

under § 203 and when they are not. The logic appears

to be httle more than “I Know it when I see it.”

Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676,

12 L.Ed.2d 793 (1964) (Stewart, J., concurring).

The argument may be that any equipment worn

is a piece of “clothes” under § 203(0) unless it is

difficult to put on and take off. Cf Reich, 38 F.3d at

1125 (concluding that time to don and doff items of

protective equipment was “work” because it was

“heavy and cumbersome, and it requires physical

exertion, time, and a modicum of concentration to put

them on securely and properly”). Alternatively, the

view may be similar to the one in Garmon, that. only

App. 44

articles designed to prevent lie-threatening hazards

are deemed worthy of FLSA protection. But neither of

these rationales is supported by any particular defini-

tion of “clothes,” the purpose of the FLSA or the

meaning of “work” as defined by the Supreme Court,

which has consistently rejected a view of work that is

limited to physically demanding activities.

Ratner, | agree with the court in Fox, 2002 WL

32987224, at *6-7, that “changing clothes” is “an

everyday, plain-language term that describes what

most people do every day — taking off pajamas to put

on work clothes in the morning, or taking off dress

clothes to put on casual wear in the evening.” This

view makes the relevant questions straight forward:

Is the article something the employee would normally

wear anyway (or does it replace such clothing)? Or is

it something the employee wears in addition to those

clothes and is required to do so for a job-related

reason? Under this understanding of “changing

clothes,” putting on a uniform would not be covered

under the FLSA under ordinary circumstances, e.g.,

Turner v. City of Philadelphia, 262 F.3d 222 (3d

Cir.2001), but donning and doffing equipment used to

protect against hazards particular to the workplace

would be covered.

As the court explained in Fox, 2002 WL

32987224, at *6-7:

The donning of {sanitation and safety] equip-

ment is much different than the time spent

by a police officer putting on a uniform and

App. 45

strapping on a holster. The uniform is

“clothes” because it takes the place of the

clothing the officer was wearing before work.

Furthermore, ...a police officer may drive to

work in his uniform.... The equipment at

issue here cannot be regarded as mere ana-

logs to everyday clothing, like a uniform

might be; the equipment is necessary not for

the convenience or modesty of the employee,

but required for the very specific needs of the

employer for sanitation and safety.

This construction of the statute is consistent with

both the purpose of § 203(0) and sound policy. As

noted by the court in Anderson, 488 F.3d at 958, the

purpose of § 203(0) was similar to that of the Portal-

to-Portal Act, which was to prevent overly expansive

interpretations of the FLSA that would impose liabil-

ity for activities that employers could not have rea-

sonably anticipated and were largely outside the

employer’s control, such as traveling between home

and work. Alvarez, 546 U.S. at 26, 126 S.Ct. 514. Like

commuting, employers have no control over an em-

ployee’s dressing habits at home. Further, because

dressing is something that everyone must do anyway,

it is inconsistent with the meaning of “work.” Simi-

larly, “washing” (also excluded by § 203(0)), is an

activity that employees perform regardless of their

particular job responsibilities.

The same cannot be said for donning and doffing

safety and sanitation equipment on the work site.

Those are activities performed for the employer, for a

uniquely job-related purpose and are under the

App. 46

employer’s control. Also important is the safety-

related purpose of this equipment. Without an ex-

plicit mandate, one would not expect that Congress

intended to allow employee safety and sanitation to

become a bargaining chip in contract negotiations.

Alvarez, 339 F.3d at 905 (“[I]t would not be in the in-

terest of public policy to allow disincentives for em-

ployers and employees to use government-mandated

personal protective equipment.”) Accordingly, I cannot

conclude that defendant has shown as a matter of law

that the items of personal protective equipment at

issue in this case are “clothes” within the meaning of

§ 203(0).

3. De minimis

Defendant’s final argument under the FLSA is

that the amount of time it takes employees to don

and doff their equipment and walk between the

locker room and the production area is “de minimis”

and is therefore not compensable. I must reject de-

fendant’s argument for two reasons.

First, defendant has adduced no evidence regard-

ing the amount of time it takes to perform the activ-

ities at issue. Because defendant seeks to rely on an

exception to the rule, it is defendant’s burden to prove

that the exception applies. Walling v. General Indus-

tries Co., 330 U.S. 545, 547-48, 67 S.Ct. 883, 91 L.Ed.

1088 (1947); Yi v. Sterling Collision Centers, Inc., 480

F.3d 505, 507 (7th Cir.2007) (“[T|he burden of proving

entitlement to an exemption is on the defendant.”).

App. 47

Thus, defendant’s failure to adduce evidence on this

point is fatal to its argument.

Defendant suggests that the court could take

judicial notice of the fact that the time in question is

de minimis, but it cites no cases in which a court has

done so. In fact, the Supreme Court expressly de-

clined to rule on the question in Anderson, 328 U.S.

at 692, 66 S.Ct. 1187, so that “the trier of facts [could]

mak[e] more definite findings as to the amount of

walking time in issue.” As in Anderson, the greatest

variable in this case involves walking time. The

diagrams submitted by defendant suggest that the

plant is a large one, making it plausible that walking

time alone is several minutes.

Second, even if the total time at issue is only a

few minutes, this would not necessarily mean that

the time was not compensable. The “de minimis”

exception has no statutory basis and Anderson is the

only case in which the Supreme Court considered the

exception’s application. (Apparently, in Alvarez the

parties did not raise the issue before the Supreme

Court and the Court ignored it.) Although a number

of courts have concluded that any task or group of

tasks is not compensable if it takes less than 10

minutes, e.g., Reich, 38 F.3d at 1126, no court has

explained why 10 minutes of work is worthy of com-

pensation but 9 minutes and 59 seconds is not. In

Anderson, the Court did not suggest that the excep-

tion was meant to be a judgment that an employee’s

work is free for the employer once it falls below some

arbitrary amount of time. Rather, the Court stated

App. 48

that in some instances compensating employees for “a

few seconds or minutes of work” will not be feasible

“in light of the realities of the industrial world.” /d.

This suggests a standard that considers not just

the time involved, but also the difficulty of measuring

that time. In other words, the need to compensate an

employee for her work must be weighed against the

cost or difficulty of providing compensation. As the

amount of time decreases for an employee to perform

tasks, so does the employer’s duty to provide compen-

sation for those tasks when doing so would impose an

administrative cost. Cf. Tennessee Coal, Iron & Rail

Co., 321 U.S. at 603, 64 S.Ct. 698 (“This does not

foreclose, of course, reasonable provisions of contract

or custom governing the computation of work hours

where precisely accurate computation is difficult or

impossible.”) However, when providing compensation

for a task imposes no additional burden on the em-

ployer, there is no justification for denying the em-

ployee compensation for that task, regardless how

fast the task was performed. Any other rule would

deny employees “the just remuneration guaranteed

them by the Act for contributing their time, liberty

and strength primarily for the benefit of others.” Jd.

After all, many jobs could be divided up into tasks

that take only a few minutes a piece. Taken to its

logical conclusion, a “de minimis” rule that focuses

only on time could swallow up an entire shift.

This understanding is consistent with the recent

holding of the Court of Appeals for the Third Circuit,

App. 49

which stated in a similar case that the “de minimis”

exception

applies only where there are uncertain and

indefinite periods of time involved of a few

seconds or minutes duration, and where the

failure to count such time is due to consider-

ations justified by industrial realities. An

employer may not arbitrarily fail to count as

hours worked any part, however small, of the

employee's fixed or regular working time or

practically ascertainable period of time he is

regularly required to spend on duties as-

signed to him.

De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 374-75

(3d Cir.2007). Other courts have reached a similar

conclusion that they must consider the administra-

tive burden on the employer when determining

whether the “de minimis” exception applies. E.g.,

Lindow v. United States, 738 F.2d 1057, 1063 (9th

Cir.1984) (courts should consider “the practical ad-

ministrative difficulty of recording the additional

time”). Because defendant has not adduced any

evidence that it would be difficult to compensate

plaintiffs for donning and doffing the personal protec-

tive equipment, I cannot conclude that those activ-

ities are “de minimis” as a matter of law.

Defendant makes a number of new arguments in

its reply brief, none of which is persuasive and in any

event may not be considered because plaintiffs had no

opportunity to respond to them. Nelson v. LaCrosse

County District Attorney, 301 F.3d 820, 836 (7th

App. 50

Cir.2002). Accordingly, I must deny defendant’s

motion for summary judgment with respect to plain-

tiff’s claims under the FLSA.

B. State Law Claims

Plaintiffs bring three state law claims: (1) failure

to pay wages, as required by Wis. Stat. § 109.03;

(2) failure to pay over time, as required by Wis. Stat.

§ 103.02; and (3) failure to keep adequate records, as

required by Wis. Admin. Code §§ DWD 272.10 and

274.05. Defendant has moved for summary judgment

on all three claims, primarily on grounds unrelated to

the merits. Defendant says that all of plaintiffs’ state

law claims are preempted by federal law and that

there is no right of action under Wisconsin law for

failing to keep records.

1. Preemption

Defendant identifies four different theories of

preemption that it believes apply in this case:

(1) “complete dominance”; (2) “Garmon preemption”;

(3) “Machinists preemption”; and (4) preemption un-

der § 301 of the Labor Relations Management Act (29

U.S.C. § 185(a)). Each of defendant’s theories fails.

What defendan: calls in its brief in chief “com-

plete dominance” preemption (a term that is not used

in the case law to describe any theory of preemption)

becomes a theory of conflict preemption in defen-

dant’s reply brief. Defendant says that any state law

App. 51

requiring compensation for the activities at issue in

this case would conflict with § 203(0), which defen-

dant says “authorizes parties to negotiate over don-

ning and doffing activities and exclude them from

compensable hours worked.” Dft.’s Reply Br., dkt

#24, at 18. But this argument is contingent on a

conclusion that the donning and doffing of personal

protective equipment falls within the meaning of

“changing clothes” under § 203(o0). Because I have re-

jected that conclusion, I must similarly reject defen-

dant’s argument of conflict preemption. If § 203(0)

permits federal law claims under the FLSA for don-

ning and doffing personal protective equipment, there

is no conflict between § 203(0) and a state law that

permits such a claim.

Defendant’s reliance on San Diego Building

Trades Council v. Garmon, 359 U.S. 236, 244-45, 79

S.Ct. 773, 3 L.Ed.2d 775 (1959), and Lodge 76, Inter-

national Association of Machinists and Aerospace

Workers, AFL-CIO v. Wisconsin Employment Rela-

tions Commission, 427 U.S. 132, 96 S.Ct. 2548, 49

L.Ed.2d 396 (1976), fares no better. Garmon “forbids

state and local regulation of activities that the [Na-

tional Labor Relations Act] protects or prohibits or

arguably protects or prohibits,” Cannon v. Edgar, 33

F.3d 880, 884 (7th Cir.1994), and Machinists “pro-

hibits state and municipal regulations of areas that

Congress left to the free play of economic forces,” /d.

at 885.

Neither Garmon nor Machinists applies. Defen-

dant’s argument under Machinists again relies on an

App 52

assumption that Congress has expressed its intent to

make the collective bargaining process the sole meth

od of obtaining compensation for donning and doffing

of personal protective equipment. However, as I dis

cussed above, the FLSA supports a view that Con

gress intended to take those activities away from the

vagaries of collective bargaining

With respect to its argument under Garmon,

defendant fails to identify any provision of the NLRA

that bars plaintiffs’ state law claims. It cites 29

U.S.C. § 158(d), which it says preempts plaintiffs’

state law claims because § 158&(d) requires umployer:

to engage in collective bargaining with respect to

“wages” and “hours.” Defendant appears to hold the

view that if Congress requires employers to engage in

collective bargaining on a particular matter, states

are powerless to impose any requirements that touch

on any aspect of that matter. If such a state law is

allowed to survive, defendant reasons, employers will

be “forced” to choose between following federal law

(which requires bargaining) and state law (which

imposes a non-negotiable requirement).

Defendant’s alleged dilemma is illusory. If de

fendant’s view of the law were correct, it would mean

that defendant was being forced to violate the law

continually. Of course, federal law imposes numerous

requirements that limit defendant’s ability to engage

in collective bargaining on issues related to “wages”

and “hours,” but this does not mean that defendant is

violating its duties under § 158(d) by complying with

those other laws. Section 158(d) simply imposes a

Ap] deo

duly to bargain “in good faith.” Obviously, if state or

federal law has removed a particular issue from the

bargaining table, there is no bad faith in failing to

engage in negotiating on that issue. Livadas v. Brad

shaw, 512 U.S. 107, 130, 114 S.Ct. 2068, 129 L.Ed.2d

93 (1994) (“|[Wle have never suyyested that lab:

law's bias toward bargaining 1s to be served by forcing

employees or employers to bargain for what they

would otherwise be entitled to as a matter of course.”)

Further, adopting defendant’s view would mean

that states are barred from enacting almost any labor

legislation. Section 158(d) requires employer: {9 en

gage in bargaining not only with respect to “hour

and “wages” but also “terms and conditions of em

ployment” in general. Thus, defendant’s view is that

federal law preempts any state law claim involving a

matter that is subject to collective bargaining. Thi

argument simply has no support in the law, under

any theory of preemption. “|FJederal labor policy doe

not prevent’ states from providing worker: with

substantive rights independent of the collective

bargaining relationship.” Douglas v. American Infor

mation Technolopties Corp., 877 F.2d 565, 569 (7th

Cir.1989). Thus, it is not surprising that defendant

has failed to cite any cases adopting its view of

preemption under Garmon

Finally, defendant relies on 29 U.S.C. § 185(a)

($301 of the Labor Relations Management Act)

which preempts state law claims that require inter

pretation of a collective bargaining agreement. Chi

cago District Council of Carpenters Pension Fund °

App. 54

Reinke Insulation Co., 464 F.3d 651, 657 (7th

Cir.2006). That section has no application in this case

because plaintiffs’ claims have nothing to do with

enforcing or interpreting a collective bargaining

agreement. Defendant did not even attempt to ex-

plain how plaintiffs’ claims required an interpretation

of the collective bargaining agreement until its reply

brief, in which it argued weakly that plaintiffs’ state

law claims will require interpretation of the agree-

ment terms “hours worked” and “regular rate of pay.”

Dft.’s Reply Br., dkt, # 24, at 26.

Defendant fails to explain why construction of

those terms is necessary. Neither side suggests that

there is any dispute over the “regular rate of pay.”

Although the “hours worked” are in dispute, this is a

dispute over the meaning of state and federal law, not

the collective bargaining agreement. Defendant may

have to calculate the hours and rate of pay to deter-

mine damages, but that is not enough te trigger

preemption. Livadas, 512 U.S. at 124-25, 114 S.Ct.

2068; In re Bentz Metal Products Co., Inc., 253 F.3d

283, 285 (7th Cir.2001) (“[A] state law claim is not

preempted if it does not require interpretation of the

[collective bargaining agreement] even if it may

require reference to the |agreement].”)

Defendant cites numerous cases of the court of

appeals but none is instructive. In each case, it was

impossible to decide the state law claim without

construing a disputed provision in the collective

bargaining agreement. Baker v. Kingsley, 387 F.3d

649, 659 (7th Cir.2004) (finding preemption under

App. 55

§ 185(a) because success on state law claim required

determination under collective bargaining agreement

whether employees were “terminated or ... are

permanently laid off, pursuant to Section 8(I)(b) of

this Agreement”); Kimbro v. Pepsico, Inc., 215 F.3d

723, 725 (7th Cir.2000) (tortious interference with

contract claim preempted because claim was really

one for violation of collective bargaining agreement);

Atchley v. Heritage Cable Viston Associates, 101 F.3d

495, 500 (7th Cir.1996) (state law wage claim

preempted because it turned on “whether there was

an obligation under the [collective bargaining agree-

ment] to provide the payments at a certain time and,

if so, whether the employer breached that implied

contract provision”); Douglas, 877 F.2d at 571 (claim

for intentional infliction of emotional distress pre-

empted because determination whether conduct was

“extreme and outrageous” would turn on rights

granted under collective bargaining agreement).

The only case addressing a similar ‘ssue was

cited by plaintiffs (and ignored by defendant until its

reply brief). In United Food & Commercial Workers

Union, Local 1473 v. Nestle USA, Inc., No. 06-C-

595-S, 2006 WL 3474198, *2 (W.D.Wis. Nov.29, 2006)

(Shabaz, J.), the court considered whether § 185(a)

preempted state law claims for donning and doffing

“work clothes.” The court rejected the defendant’s

arguments that it did, concluding that all of the

factual and legal determinations in the case were

“irrelevant” to the collective bargaining agreement.

Defendant criticizes plaintiffs for relying on this case

”

App. 56

because it is nonprecedential (calling plaintiffs’

discussion of the case “inappropriate” and a “cheap

shot”), but the same could be said of any district court

opinion. In any event, | agree with plaintiff that

§ 185(a) does not preempt plaintiffs’ state law claims

because defendant has failed to show that it is neces-

sary to interpret any provision of the collective bar-

gaining agreement in order to decide those claims.

2. Record keeping claim

Plaintiffs devote one sentence of their brief to

their argument that Wisconsin law recognizes a

private cause of action for an employer’s failure to

keep adequate records: “It is settled Wisconsin law

that employees can enforce [the regulations requiring

record keeping, Wis. Admin. Code §§ DWD 272.10

and 274.06] under § 109.03(5). German v. Wisconsin

Dept. of Transportation, {2000 WI 62,] 235 Wis.2d

576, 586-87, 612 N.W.2d 50 (2000).” Pits.’ Br., dkt.

#21, at 36. That is incorrect. Section 109.03(5)

authorizes a cause of action “for the full amount of

the employee’s wages.” It has nothing to do with

record keeping. The question in German, 2000 WI 62,

at | 2, 235 Wis.2d 576, 612 N.W.2d 50, was whether

employees could sue under § 109.03(5) for wages they

believed they were due for meal breaks. The supreme

court did not hold that the record keeping regulations

could be enforced under § 109.03(5) or any other

statute. In fact, the court did not even discuss those

regulations.

App.

Plaintiffs provide no other authority for a private

right to enforce the record keeping regulations.

Without a showing that the legislature intended to

create a private civil remedy, plaintiffs cannot seek

rehef in this court. Antwaun A. v. Heritage Mutual

Insurance Co., 228 Wis.2d 44, 66, 596 N.W.2d 456

(1999). Defendant’s motion for summary judgment

will be granted with respect to this claim.

3. Merits

Defendant does not develop a separate argument

related to the merits of plaintiffs’ state law claims,

but says only that the standards are the same under

state and federal law regarding whether an activity is

“de minimis” or “preliminary” or “postliminary.”

Because I have rejected defendant’s arguments on

these issues on plaintiffs’ federal claim, it is unneces-

sary to consider them again with respect to plaintiffs’

state law claims.

ORDER

[T IS ORDERED that the motion for summary

judgment filed by defendant Kraft Foods Global, Inc.

is GRANTED with respect to plaintiffs’ claim under

Wis. Admin. Code §§ DWD 272.10 and 274.06. Plain-

tiffs’ complaint is DISMISSED with respect to that

claim. Defendant’s motion for summary judgment is

DENIED in all other respects. The clerk of court

is directed to set a date for a scheduling confer-

ence before Magistrate Judge Stephen Crocker to

App. 58

determine a new deadline for filing a motion for

class certification and to make any other necessary

adjustments to the schedule.

App. 59

29 U.S.C. § 151 Findings and declaration of

policy

The denial by some employers of the right of employ-

ees to organize and the refusal by some employers to

accept the procedure of collective bargaining lead to

strikes and other forms of industrial strife or unrest.

which have the intent or the necessary effect of

burdening or obstructing commerce by (a) impairing

the efficiency, safety, or operation of the instrumental-

ities of commerce; (b) occurring in the current of

commerce; (c) materially affecting, restraining, or

controlling the flow of raw materials or manufactured

or processed goods from or into the channels of com-

merce, or the prices of such materials or goods in

commerce; or (d) causing diminution of employment

and wages in such volume as substantially to impair

or disrupt the market for goods flowing from or into

the channels of commerce.

The inequality of bargaining power between em-

ployees who do not possess full freedom of association

or actual liberty of contract, and employers who are

organized in the corporate or other forms of owner-

ship association substantially burdens and affects the

flow of commerce, and tends to aggravate recurrent

business depressions, by depressing wage rates and

the purchasing power of wage earners in industry

and by preventing the stabilization of competitive

wage rates and working conditions within and be-

tween industries.

Experience has proved that protection by law of

the right of employees to organize and bargain

App. 60

collectively safeguards commerce from injury, impair-

ment, or interruption, and promotes the flow of

commerce by removing certain recognized sources of

industrial strife and unrest, by encouraging practices

fundamental to the friendly adjustment of industrial

disputes arising out of differences as to wages, hours,

or other working conditions, and by restoring equality

of bargaining power between employers and employ-

ees.

Experience has further demonstrated that certain

practices by some labor organizations, their officers,

and members have the intent or the necessary effect

of burdening or obstructing commerce by preventing

the free flow of goods in such commerce through

strikes and other forms of industrial unrest or

through concerted activities which impair the interest

of the public in the free flow of such commerce. The

elimination of such practices is a necessary condition

to the assurance of the rights herein guaranteed.

It is hereby declared to be the policy of the United

States to eliminate the causes of certain substantial

obstructions to the free flow of commerce and to

mitigate and eliminate these obstructions when they

have occurred by encouraging the practice and proce-

dure of collective bargaining and by protecting the

exercise by workers of full freedom of association,

self-organization, and designation of representatives

of their own choosing, for the purpose of negotiating

the terms and conditions of their employment or

other mutual aid or protection.

App. 61

29 U.S.C. § 157 Right of employees as to or-

ganization, collective bargaining, etc.

Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain

collectively through representatives of their own

choosing, and to engage in other concerted activities

for the purpose of collective bargaining or other

mutual aid or protection, and shall also have the

right to refrain from any or all of such activities

except to the extent that such right may be affected

by an agreement requiring membership in a labor

organization as a condition of employment as author-

ized in section 158(a)(3) of this title.

29 U.S.C. § 158 Unfair labor practices

4 * *

(d) Obligation to bargain collectively

For the purposes of this section, to bargain collec-

tively is the performance of the mutual obligation of

the employer and the representative of the employees

to meet at reasonable times and confer in good

faith with respect to wages, hours, and other terms

and conditions of employment, or the negotiation of

an agreement, or any question arising thereunder,

and the execution of a written contract incorporat-

ing any agreement reached if requested by either

party, but such obligation does not compel either

party to agree to a proposal or require the making of

a concession: Provided, That where there is in effect

App. 62

a collective-bargaining contract covering employees in

an industry affecting commerce, the duty to bargain

collectively shall also mean that no party to such

contract shall terminate or modify such contract,

unless the party desiring such termination or modifi-

cation —

(1) serves a written notice upon the other party

to the contract of the proposed termination or

modification sixty days prior to the expiration

date thereof, or in the event such contract con-

tains no expiration date, sixty days prior to the

time it is proposed to make such termination or

modification;

(2) offers to meet and confer with the other

party for the purpose of negotiating a new

contract or a contract containing the proposed

modifications;

(3) notifies the Federal Mediation and Concilia-

tion Service within thirty days after such notice

of the existence of a dispute, and simultaneously

therewith notifies any State or Territorial agency

established to mediate and conciliate disputes

within the State or Territory where the dispute

occurred, provided no agreement has_ been

reached by that time; and

(4) continues in full force and effect, without re-

sorting to strike or lock-out, all the terms and

conditions of the existing contract for a period of

sixty days after such notice is given or until the

App. 63

expiration date of such contract, whichever

occurs later:

29 U.S.C. §185 Suits by and against labor

organizations

(a) Venue, amount, and citizenship

Suits for violation of contracts between an employer

and a labor organization representing employees in

an industry affecting commerce as defined in this

chapter, or between any such labor organizations,

may be brought in any district court of the United

States having jurisdiction of the parties, without

respect to the amount in controversy or without

regard to the citizenship of the parties.

‘ : .

For the purposes of actions and proceedings by or

against labor organizations in the district courts of

the United States, district courts shall be deemed to

have jurisdiction of a labor organization (1) in the

district in which such organization maintains its

principal office, or (2) in any district in which its duly

authorized officers or agents are engaged in repre-

senting or acting for employee members.

* * *

App. 64

29 U.S.C. § 203 Definitions

As used in this chapter —

of *

(1) “Oppressive child labor” means a condition of

employment under which (1) any employee under the

age of sixteen years is employed by an employer

(other than a parent or a person standing in place of a

parent employing his own child or a child in his

custody under the age of sixteen years in an occupa-

tion other than manufacturing or mining or an occu-

pation found by the Secretary of Labor to be

particularly hazardous for the employment of chil-

dren between the ages of sixteen and eighteen years

or detrimental to their health or well-being) in any

occupation, or (2) any employee between the ages of

sixteen and eighteen years is employed by an employ-

er in any occupation which the Secretary of Labor

shall find and by order declare to be particularly

hazardous for the employment of children between

such ages or detrimental to their health or well-being;

but oppressive child labor shall not be deemed to

exist by virtue of the employment in any occupation

of any person with respect to whom the employer

shall have on file an unexpired certificate issued and

held pursuant to regulations of the Secretary of Labor

certifying that such person is above the oppressive

child-labor age. The Secretary of Labor shall provide

by regulation or by order that the employment of

employees between the ages of fourteen and sixteen

years in occupations other than manufacturing and

App DD

mining shall not be deemed to constitute oppressive

child labor if and to the extent that the Secretary of

Labor determines that such employment is confined

to periods which will not interfere with their school

ing and to conditions which will not interfere with

their health and well-being

29 U.S.C. 8 203 Definitions

As used in thi chapter

(o) Hours Worked In determining for the pu

poses of sections 206 and 207 of this title the hour

for which an employee is employed, there shal) be

excluded any time spent in changing clothes or wash

ing at the beginning or end of each workday which

was excluded from measured working time during the

week involved by the express terms of or by custom o1

practice under a bona fide collective-bargainin

agreement appli able to the parti ular employs f

29 U.S.C. § 206 Minimum wage

(a) Kmployees engaged In commerce; home worke

in Puerto Rico and Virgin Island employees in

American Samoa: eamen on Amercan vess

agricultural employee

very employer shall pay to each of his employes

who in any workweek is engaged in commerce or in

the production of goods for commerce, or is employed

in an enterprise engaged in commerce or in the pro

duction of goods for commerce, wages at the following

rate!

(1) ( xcept as otherwise rovided in th

not less than

il f

la Vi AV Zi) AGLEW

(i) DH.OD } hour I

iter that 60th da ma

(q) YD / At i} ) ’ )

ae is 7. rytile in)

29 U.S.C. 8 207 Maximum hours

i lum ployer envavred Le]

additional applicability employe

if ‘ puue ry! mend 1 ’ pro ‘>

(I) except ’ oLnerwi ] ged

employe! hall employ ny i fh

my work we k | (*T) raged if) ¢ I

pl Muction ay rood hor { mre rce 7

in enterpri { enyvuved iT) OITI ITV (

Lio’ a) good ior commer! (>? yi wWV

than lort nou! mle } Cry

ompen ation tor hi emproyment

nou! above pecified il i ral rot le

me-hnall tin the re We i [

Joved

(2 ) CiMy Cy | Cl yi

VIO if) «athy workwee} j rita } if

Try production of mood iT

nm an enterprise engaved

roduction of vood te)

App. 68

workweek is brought within the purview of this

subsection by the amendments made to this chapter

by the Fair Labor Standards Amendments of 1966 —

* . 7

after the expiration of the second year from

such date,

unless such employee receives compensation for his

employment in excess of the hours above specified at

a rate not less than one and one-half times the regu-

lar rate at which he is employed.

2: * *

29 U.S.C. § 218 Relation to other laws

(a) No provision of this chapter or of any order

thereunder shal! excuse noncompliance with any

Federal or State law or municipal ordinance estab-

lishing a minimum wage higher than the minimum

wage established under this chapter or a maximum

work week lower than the maximum workweek

established under this chapter, and no provision of

this chapter relating to the employment of child labor

shall justify noncompliance with any Federal or State

law or municipal ordinance establishing a higher

standard than the standard established under this

chapter. No provision of this chapter shall justify any

employer in reducing a wage paid by him which is in

excess of the applicable minimum wage under this

chapter, or justify any employer in increasing hours of

App. &9

employment maintained by him which are shorter

than the maximum hours applicable under this

chapter.

App. 70

Wis. Stat. § 103.02 Hours of labor

No person may be employed or be permitted to work

in any place of employment or at any employment for

such period of time during any day, night or week, as

is dangerous or prejudicial to the person’s life, health,

safety or welfare. The department shall investigate,

ascertain, determine and fix such reasonable classifi-

cation, and promulgate rules fixing a period of time,

or hours of beginning and ending work during any

day, night or week, which shall be necessary to pro-

tect the life, health, safety or welfare of any person,

or to carry out the purposes of ss. 103.01 to 103.03.

The department shall, by rule, classify such periods of

time into periods to be paid for at regular rates and

periods to be paid for at the rate of at least one and

one-half times the regular rates. Such investigations,

classifications and orders shall be made as provided

in s. 103.005 and the penalties under s. 103.005(12)

shall apply to and be imposed for any violation of

ss. 103.01 to 103.03. Such orders shall be subject to

review in the manner provided in ch. 227. Section

111.322(2m) applies to discharge or other discrimina-

tory acts arising in connection with any proceeding

under this section.

App. 71

Wis. Stat. § 109.03 When wages payable; pay

orders

The required frequency of wage payments provided in

this subsection does not apply to any of the following:

(a) Employees covered under a valid collective bar-

gaining agreement establishing a different frequency

for wage payments, including deferred payments

exercised at the option of employees.

(b) School district and private school employees who

voluntarily request payment over a 12-month period

for personal services performed during the school

year, unless such employees are covered under a valid

collective bargaining agreement which precludes this

method of payment.

consin system.

(d) Employees who receive compensatory time off

under s. 103.025 in lieu of overtime compensation.

(e) A part-time fire fighter or a part-time emergency

medical technician who is a member of a volunteer

fire department or emergency medical services pro-

gram maintained by a county, city, village, or town or

of a volunteer fire company organized under ch. 181

or ch. 213 and who, by agreement between the fire

fighter or emergency medical technician and the

entity employing the fire fighter or emergency medi-

cal technician, is paid at regular intervals, but no less

often than annually.

App. 72

(2) Payment to discharged or resigned employ-

ees. Any employee, except a sales agent employed on

a commission basis, not having a written contract for

a definite period, who quits employment or who is

discharged from employment shall be paid in full by

no later than the date on which the employee regu-

larly would have been paid under the employer’s

established payroll schedule or the date of payment

required under sub. (1), whichever is earlier.

App. 73

Wis. Admin. Code DWD § 272.12 Interpretation

of hours worked.

(1) Principles for determination of hours worked.

(a) General requirements of sections. 1. Employees

subject to the statutes must be paid for all time spent

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’s business.” The workweek ordinar

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.