Salazar v. Butterball Llc

• Decision Date: 05 July 2011
• Docket Number: No. 10–1154.,10–1154.
• Citation: 17 Wage & Hour Cas.2d (BNA) 1473,644 F.3d 1130
• Parties: Clara E. SALAZAR; Juanita Ybarra, (Proposed Collective and Class Action Representatives), on behalf of themselves and others similarly situated, Plaintiffs–Appellants,v.BUTTERBALL, LLC, Defendant–Appellee.National Employment Lawyers Association; United Food and Commercial Workers, Local Union No. 7R; United Food and Commercial Workers International Union, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

644 F.3d 1130

161 Lab.Cas. P 35,924

17 Wage & Hour Cas.2d (BNA) 1473

Clara E. SALAZAR; Juanita Ybarra, (Proposed Collective and Class Action Representatives), on behalf of themselves and others similarly situated, Plaintiffs–Appellants,

v.BUTTERBALL, LLC, Defendant–Appellee.National Employment Lawyers Association; United Food and Commercial Workers, Local Union No. 7R; United Food and Commercial Workers International Union, Amici Curiae.

No. 10–1154.

United States Court of Appeals, Tenth Circuit.

July 5, 2011.

T. Joseph Snodgrass, (Kelly Swanson and Troy F. Tatting of Larson King, LLP, St. Paul, MN; J. Gordon Rudd, Jr., Anne T. Regan and Patricia A. Bloodgood of Zimmerman Reed, PLLP, Minneapolis, MN; Stanley M. Gosch and Richard Rosenblatt of Richard Rosenblatt & Assoc., LLC, Greenwood Village, CO, with him on the briefs), of Larson King, LLP, St. Paul, MN, for Plaintiff–Appellants.Stephen X. Munger, (Eric R. Magnus of Jackson Lewis LLP, Atlanta, GA; Ryan P. Lessmann of Jackson Lewis LLP, Denver, CO, with him on the brief), of Jackson Lewis, LLP, Atlanta, GA, for Defendant–Appellee.Lin Chan and David Borgen of Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland, CA, and David Lichtenstein, Denver, CO, filed a brief for National Employment Lawyers Association as Amicus Curiae in support of Plaintiff–Appellants.Renee L. Bowser, Assistant General Counsel, United Food and Commercial Workers International Union, Washington, D.C., and John P. Bowen, UFCW Local 7R, Wheat Ridge, CO, filed a brief for United Food and Commercial Workers International Union and United Food and Commercial Workers Union Local 7R as Amici Curiae in support of Plaintiff–Appellants.Before BRISCOE, Chief Judge, SEYMOUR and LUCERO, Circuit Judges.BRISCOE, Chief Judge.

In this case we are asked to decide whether donning and doffing poultry processing workers' personal protective equipment is “changing clothes” under 29 U.S.C. § 203( o ) and whether a turkey processing plant is a food and beverage industry employer under 7 Colo.Code Regs. § 1103–1:2. Plaintiffs/appellants Clara Salazar and Juanita Ybarra (together, plaintiffs) brought claims on behalf of hourly production employees at defendant/appellee Butterball, LLC's (Butterball) Longmont, Colorado turkey processing plant. Plaintiffs claim that Butterball's failure to compensate donning and doffing time violates the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201–219 (FLSA), and Colorado Minimum Wage Order 27, 7 Colo.Code Regs. § 1103–1 et seq. (Wage Order 27).¹ The district court entered summary judgment in Butterball's favor based on determinations that donning and doffing time was excluded from FLSA hours worked pursuant to 29 U.S.C. § 203( o ) and that Wage Order 27 did not apply to Butterball. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

IFactual Background

Butterball's Longmont plant produces turkey products, including cooked ready-to-eat (RTE) turkey products. Butterball acquired the plant from ConAgra Foods in 2006. Butterball retained the same workforce, management, and pay practices that were in place during ConAgra's ownership.

The plaintiffs worked at various times in the plant's deboning, evisceration, packaging, and quality assurance departments. They were required to don various items of apparel and equipment prior to their shifts and to doff such items after their shifts. Generally, production employees wore frocks, aprons, plastic sleeves, gloves, cotton glove liners, boots or overshoes, hard hats, earplugs, and safety glasses. When working in the deboning and evisceration areas, plaintiffs also wore mesh gloves, knife holders, and arm guards. As the parties have done, we refer to these items collectively as personal protective equipment, or PPE. See Aplt. Br. at 3, Aple. Br. at 3–4.

Butterball, continuing ConAgra's practice, has never paid most production employees for donning and doffing time.² Aplt. Add. at 89. The plaintiffs are aware that they have never been paid for donning and doffing time. Aple. Add., Vol. I at 7, 213.

Production employees at the plant are represented by United Food and Commercial Workers Local 7 (UFCW 7 or the Union). ConAgra and UFCW 7 entered into a collective bargaining agreement (CBA) for the period of February 6, 2005 through February 2, 2008. Aplt.App., Vol. III at 7. Butterball and UFCW 7 entered into a new CBA for the period of February 3, 2008 through February 2, 2009. Id. at 62. As of April 1, 2009, the Union was working without a contract, and the current status of negotiations is not evident from the record presented. Aple. Add., Vol. I at 186. Neither CBA discusses donning and doffing pay or how hours worked are to be calculated.

On December 16, 2005, the Union filed a grievance claiming that employees should be paid for donning and doffing time. ConAgra denied the grievance and the Union demanded arbitration on November 13, 2006. Aplt.App., Vol. III at 115–17. However, arbitration did not occur. Butterball presented evidence that the grievance had been resolved by April 2008. Id., Vol. I at 463. On the other hand, the plaintiffs presented evidence that the Union considered the grievance to be pending, at least as of June 1, 2007. Aplt. Add. at 73 (affidavit dated June 1, 2007). It is undisputed that the issue of donning and doffing pay was not discussed during negotiations of either CBA.

The FLSA, Portal–to–Portal Act, and 29 U.S.C. § 203(o )

Congress enacted the FLSA in 1938 “to establish nationwide minimum wage and maximum hours standards.” Moreau v. Klevenhagen, 508 U.S. 22, 25, 113 S.Ct. 1905, 123 L.Ed.2d 584 (1993). Generally, the FLSA mandates that employees be paid a minimum wage and paid at an overtime rate for hours worked in excess of forty in a workweek. The statute does not define “work” or “workweek,” and the Supreme Court's early FLSA decisions interpreted those terms broadly. IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), the Supreme Court held that the “workweek” included “all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace....” Congress enacted the Portal–to–Portal Act, 29 U.S.C. §§ 251–62, in response to Mt. Clemens and other judicial decisions that, in Congress's view, interpreted the FLSA “in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities.” 29 U.S.C. § 251(a).

Among other things, the Portal–to–Portal Act provided that employers could not be liable under the FLSA for failure to compensate time an employee spent performing activities that were preliminary or postliminary to “the principal activity or activities which such employee is required to perform.” 29 U.S.C. § 254(a). The Supreme Court interpreted this provision to mean that activities performed prior or subsequent to a regular work shift are compensable if they are “an integral and indispensable part of the principal activities for which covered workmen are employed....” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). In 2005, the Supreme Court held that, assuming donning and doffing was an integral and indispensable activity, any post-donning and pre-doffing walking time (i.e., between locker rooms and production areas) would be compensable under the Portal–to–Portal Act. IBP, 546 U.S. at 36, 126 S.Ct. 514.

Congress amended the FLSA again in 1949 enacting, among other provisions, what is now 29 U.S.C. § 203( o ). Section 203( o ) defines hours worked:

Hours worked.—In determining for the purposes of sections 206 and 207 of this title [minimum wage and maximum hours] 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 collective-bargaining agreement applicable to the particular employee.

Colorado Wage Order 27

The Colorado Minimum Wage Act, Colo.Rev.Stat. §§ 8–6–101–8–6–119, prohibits employment of workers “for wages which are inadequate to supply the necessary cost of living and to maintain the health of workers so employed” or “under conditions of labor detrimental to [workers'] health or morals.” Colo.Rev.Stat. § 8–6–104. The Act also delegates to the Colorado Department of Labor the authority to set minimum wage and maximum hour standards. Colo.Rev.Stat. § 8–6–106. Pursuant to this authority, the Colorado Department of Labor issued Wage Order 27, which prescribes minimum wage and overtime requirements for employees in the retail and service, food and beverage, commercial support service, and health and medical industries. 7 Colo.Code Regs. § 1103–1:1.

Procedural History

Plaintiffs filed a complaint in the United States District Court for the District of Colorado, seeking to bring a collective action under the FLSA and a class action under Colorado law for compensation for time spent “donning, doffing, and sanitizing gear and equipment, and walking to and from the production floor.” Aplt.App., Vol. I at 12–13. Butterball moved for summary judgment on both claims. A magistrate judge issued a Report and Recommendation determining that plaintiffs' PPE was clothes under 29 U.S.C. § 203( o ) and there was a custom or practice of nonpayment, and that Butterball was not subject to Wage Order 27. The district court adopted the Report and Recommendation and entered summary judgment in Butterball's favor. Plaintiffs appeal.

II

This court reviews the grant of summary judgment de novo, applying the same standards as the district court. Gwinn v. Awmiller, 354 F.3d 1211, 1215 (10th Cir.2004). Summary judgment is appropriate if “there is no genuine dispute as to any...