# Petition for Writ of Certiorari — Kraft Foods Global, Inc. v. Spoerle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2682%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1137 ## 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 5 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. VI 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 24 . — 26 30 34 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) 43 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 2Q 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. 28 29 pa 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 _ 3 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. 6 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) 10 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 14 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 15 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). 16 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 17 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. 18 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 19 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 20 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 21 (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). y 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 23 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. 24 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 © ai 2d N65 YW A (7th (i 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 l} xXpre CBA prov! by the “common lav qd turn he t hye conte Vreri lrifo lec} ( 14YRY quoting {/) | Navipattor ( mn the Seventh ¢ Dd 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 29 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). 30 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). 31 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 32 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 33 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 34 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 36 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 37 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. 38 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! [ ] i " COMnSIN iV I) [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 7T . 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 42 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 +4 activities. 29 U.S.C. Or 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 it 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 be federal law DroV\ ides pre uld viewed an le pursuant ‘ lo 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 f } 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, V. 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 cS 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2682%3A1. Public record. Not legal advice.