339 F.3d 894 (9th Cir. 2003), 02-35042, Alvarez v. IBP, Inc.

Docket Nº:02-35042
Citation:339 F.3d 894
Party Name:Alvarez v. IBP, Inc.
Case Date:August 05, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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339 F.3d 894 (9th Cir. 2003)

Gabriel ALVAREZ, individually and as class representative; Ranulfo Gutierrez, individually and as class representative; Pedro Hernandez, individually and as class representative; Maria Martinez; Ramon Moreno; Ismael Rodriquez, Plaintiffs-Appellees,


IBP, INC., a Delaware corporation, Defendant-Appellant.

Gabriel Alvarez, individually and as class representative; Ranulfo Gutierrez, individually and as class representative; Pedro Hernandez, individually and as class representative; Maria Martinez; Ramon Moreno; Ismael Rodriquez, Plaintiffs-Appellants,


IBP, Inc., a Delaware corporation, Defendant Appellee.

Nos. 02-35042, 02-35110.

United States Court of Appeals, Ninth Circuit

August 5, 2003.


Argued and Submitted April 8, 2003.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Michael B. King, Barbara J. Duffy, Douglas E. Smith, Nancy W. Anderson; Lane Powell Spears Lubersky LLP; Seattle, WA; and William A. Norris, Joel M. Cohn and Alison L. Gray; Akin Gump Strauss Hauer & Feld LLP; Los Angeles CA; for the appellant.

William Rutzick and Kathryn Goater; Schroeder, Goldmark & Bender; and David Mark; Seattle, WA; for the appellees.

Ellen R. Edmond, United States Department of Labor; Washington, DC, for amicus U.S. Department of Labor.

Suchi Sharma; Assistant Attorney General, State of Washington; Olympia, WA; for amicus Washington Department of Labor and Industries.

Appeal from the United States District Court for the Eastern District of Washington; Robert H. Whaley, United States District Judge, Presiding. D.C. No. CV-98-05005-RHW.

Before D.W. NELSON, THOMAS, Circuit Judges, and ILLSTON, District Judge. 1

THOMAS, Circuit Judge.

Perhaps the packing plant employees in Pasco, Washington, should have heeded Henry David Thoreau's warning to "beware of all enterprises that require new clothes." The central dispute in this class action lawsuit is whether IBP, Inc. ("IBP") should be required to compensate its employees for the time it takes to change into required specialized protective clothing and safety gear. Under the circumstances presented by this case, we conclude that it must. We affirm in part and reverse in part.


From the time that publication of Upton Sinclair's novel The Jungle provoked President

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Theodore Roosevelt to secure passage of the Meat Inspection Act of 1906, the meat packing industry has been one of the most regulated businesses in the United States. This is not only a product of concerns over food purity. According to the United States Department of Labor's Bureau of Labor Statistics, employment at a packing plant is still one of the most dangerous jobs in America, with multiple thousands of workers injured on the job every year. See U.S. Dep't of Labor, Bureau of Labor Statistics, Industry Injury and Illness Data (2002), at http://www.bls.gov/iif/oshsum.htm.

IBP, Inc. is the world's largest producer of fresh beef, pork, and related products. Headquartered in Dakota Dunes, South Dakota, IBP operates a number of meat processing plants throughout the American West and Midwest. Through meat-related innovation and gradual corporate acquisition, IBP has built a substantial food empire, reaping over $13 billion in sales in 1999 alone.

Among IBP's many meat processing facilities is a "kill and processing plant" in Pasco, Washington ("the Pasco plant"). As the moniker suggests, the Pasco plant includes slaughter and processing work sections, both of which play a direct role in the carcass "disassembly process." The disassembly of a beef carcass takes two-to-three days. After the animal is killed, the carcass moves along a series of chains in the slaughter division, eventually coming to rest in a cooled storage facility. After remaining in storage for at least twenty-four but no more than forty-eight hours, the carcass is transported across a group of chains and belts in the processing division, where processing employees cut, trim, and divide the carcass into a variety of pieces.

The Pasco plant divides its slaughter and processing staffs into separate work crews, assigning these crews to work shifts. Pasco plant production line employees, who are represented by Teamsters Local Union No. 556 and who are covered by a collective bargaining agreement, are required to be at their work stations and prepared to work as the first piece of meat comes across the production line. However, before they are able to assume their work stations all Pasco plant employees must complete a number of preliminary tasks, and before employees may leave the Pasco plant at the end of a shift, most of these preliminary tasks must be completed in inverse form. Each Pasco plant job classification has specific tool, supply, walk-time, and gear requirements, so each employee's preliminary and postliminary duties are somewhat distinct; still, for all Pasco plant production line employees, a general pattern obtains: At the start of a shift, Pasco plant employees must gather their assigned equipment, don that equipment in one of the Pasco plant's four locker rooms, and prepare work-related tools before venturing to the slaughter or processing floors. At the end of every shift, employees must clean, restore, and replace their tools and equipment, storing all of it at the Pasco plant itself. 2

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Until July of 1998, the Pasco plant's shifts ran eight hours, the first four-hour block of which was split by a paid fifteen-minute rest-break, and the two four-hour spans of which were divided by a thirty-minute unpaid meal break. 3 In July of 1998, IBP restructured its shift time to include four minutes of so-called "clothes" time, thereby reducing the overall work time to seven hours and fifty-six minutes. In the fall of 1999, the Pasco plant reduced its shift time to seven hours and fifty-one minutes. Long-running litigation between IBP and the United States Department of Labor (hereinafter "USDOL") in the 1990s spurred much of IBP's shift-time reduction. In the course of that litigation, damage and wage issues comparable to those raised in this case were decided, but the litigation focused singularly on IBP's non-unionized plants. See Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir. 1994) (holding IBP liable for unpaid pre-shift and post-shift donning, doffing, and cleaning of special packinghouse industry safety equipment and for time spent between waiting to pick up and return knives). 4

Once a shift begins, the Pasco plant employees' time is strictly regulated and monitored. As a rule, employee rest or meal-break time begins as soon as the last piece of meat passes on the production line, and, as a rule, employees must be completely prepared to resume work as soon as the break period ends. When departing the processing and slaughter floors--whether to go to the cafeteria or to the restroom 5--employees are permitted to leave only hats, hairnets, goggles, earplugs, and boots in place; outer garments, protective gear, gloves, scabbards, and chains must be removed. For many Pasco plant employees, the operation of IBP's mandatory donning and doffing rules necessarily impinges--if not more--their unpaid thirty-minute meal break time.

To help monitor employee arrival and departure times, IBP instituted a mandatory, computerized "swipe card" system at the Pasco plant. IBP does not use the data its swipe card system gathers in calculating employee pay. Instead, IBP pays its Pasco plant employees according to a "gang time pay" model, which bases employee

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remuneration entirely on the times during which employees are actually cutting and bagging meat. Under this "gang time" framework, the period in which IBP considers its employees to be performing compensable work commences with the processing of the first piece of meat and ends with the processing of the last, notably excluding any time spent abiding the Pasco plant's required pre or post-shift routines.

In 1999, believing parts of IBP's compensation practices to be unlawful, the Pasco plant's slaughter and processing employees brought this class action suit under § 16(b) of the Fair Labor Standards Act ("FLSA"), see 29 U.S.C. § 216(b) (1999), and related provisions of Washington's Minimum Wage Act ("WMWA") in United States District Court for the Eastern District of Washington. Three aspects of their work-day animated plaintiffs' claim: (1) the pre-shift donning of protective gear and the preparation of work-related tools, including the attendant waiting and walking; (2) the requisite donning and doffing of protective gear during the thirty-minute unpaid meal-break; and (3) the post-shift doffing, cleaning, and storing of protective gear and tools.

In response to plaintiffs' complaint, IBP promptly filed a motion for summary judgment with the district court, raising a series of interrelated state and federal defenses to plaintiffs' claims. Rejecting IBP's Labor Management Relations Act preemption theory, the district court granted in part and denied in part IBP's first summary judgment motion.

Just over a year later, the district court denied another of IBP's motions for summary judgment, concluding that Washington state courts were "likely" to adopt a per-hour standard of minimum wage compliance under the WMWA because (1) the Washington legislature refused to incorporate correlative FLSA language, thereby refusing to adopt FLSA's uniform application of the workweek standard, and (2) the Washington Supreme Court had condoned the use of a per-hour method in Seattle Professional Engineering Employees Association v. Boeing Co., 139 Wash.2d 824, 991 P.2d 1126 (2000), placing that court's imprimatur on a non-workweek approach in certain contexts.

A month later, the district court issued a multi-part order, excluding plaintiffs from the ambit of the Revised...

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