Allen v. McWane, Inc.

• Decision Date: 08 January 2010
• Docket Number: No. 08-41037.,08-41037.
• Citation: 593 F.3d 449
• Parties: Corline ALLEN, Individually and on behalf of all others similarly situated; All Plaintiffs; Lorenzo Aguirre; Theotis Anderson; Gerardo Avalos; et al., Plaintiffs-Appellants, v. McWANE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

593 F.3d 449

Corline ALLEN, Individually and on behalf of all others similarly situated; All Plaintiffs; Lorenzo Aguirre; Theotis Anderson; Gerardo Avalos; et al., Plaintiffs-Appellants, v. McWANE, INC., Defendant-Appellee.

No. 08-41037.

United States Court of Appeals, Fifth Circuit.

January 8, 2010.

Daniel JT Sciano (argued), Tinsman & Sciano, Inc., Dawn Bruner Finlayson, Gardner Law Firm, San Antonio, TX, Jimmy Michael Negem, Negem, Bickham & Worthington, Tyler, TX, for Plaintiffs-Appellants.

Gregory Duane Smith (argued), Herschel Tracy Crawford, Deron Tay Dacus, Ramey & Flock, Tyler, TX, Mitchell G. Allen, Maynard, Cooper & Gale, Birmingham, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This collective action under the Fair Labor Standards Act ("FLSA"), on behalf of hourly employees of McWane, Inc. ("McWane"), sought payment for pre- and post-shift time spent donning and doffing protective gear. The district court granted summary judgment on the basis that at each plant there existed a custom or practice of not compensating pre- or post-shift time spent putting on and taking off protective gear. We AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

McWane operates plants that manufacture cast iron pipe and fittings. The hourly employees at McWane's plants wear protective gear while at work, including hard hats, steel-toed boots, safety glasses, and ear plugs. This appeal involves hourly workers at ten McWane plants that operate under collective bargaining agreements ("CBAs"). Different CBAs govern each of the plants, and workers are employed subject to the terms of their respective CBA. Three of the plants operate under CBAs that expressly exclude compensation for pre- and post-shift donning and doffing of protective gear; the other seven CBAs do not address pre- and post-shift time spent putting on and taking off protective gear.¹

The workers at the plants are paid by the hour, based on shift or line time. Line time refers to the practice of measuring the shift as starting when the first item hits the processing line and ending as the last item leaves the processing line. None of McWane's employees at these plants have ever received compensation for pre-and post-shift changing time. Union representatives and the employees attest that they were not aware that the pre- and post-shift changing time was potentially compensable under the FLSA. Compensation for such time was never discussed in union meetings or in meetings between union representatives and McWane, including the meetings where the CBAs were negotiated.

Plaintiffs-appellants (collectively, "Allen") filed their collective claim against McWane, on behalf of over 2,100 McWane employees, under 29 U.S.C. §§ 207 and 216(b) of the FLSA. They sought compensation for time spent putting on and taking off gear before and after their scheduled shifts. The district court conditionally certified the case as a collective action. McWane moved for summary judgment, and the motion was referred to the magistrate judge. Relying on Anderson v. Cagle's, Inc., 488 F.3d 945 (11th Cir.2007), the magistrate judge recommended that summary judgment should be granted because § 203(o) of the FLSA was applicable. Allen filed objections to the magistrate's recommendations. The district court considered and overruled Allen's objections, adopted the magistrate judge's recommendations, and granted summary judgment in favor of McWane. Allen timely appealed.

II. DISCUSSION

This court reviews a district court's grant of summary judgment de novo, applying the same standards as the district court. McGavock v. City of Water Valley, Miss., 452 F.3d 423, 424 (5th Cir.2006). Summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The moving party has the burden of demonstrating that there are no genuine issues of material fact in dispute. Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 433 (5th Cir.2005). "This Court resolves any doubts and draws all reasonable inferences in favor of the nonmoving party." United States ex rel. Longhi v. United States, 575 F.3d 458, 465 (5th Cir.2009). "Additionally, we construe the FLSA liberally in favor of employees...." McGavock, 452 F.3d at 424.

This appeal requires construction of § 203(o) of the FLSA, which allows for the exclusion from the computation of hours worked, under certain circumstances, of time spent changing clothes at the beginning or end of each workday. The controlling issue is whether a § 203(o) "custom or practice" of non-compensation for such time existed. In addition, the parties dispute who has the burden of proof under § 203(o) and whether material issues of fact exist.

A. Custom or Practice of Non-Compensation under § 203(o)

"The Fair Labor Standards Act of [1938] establishes the general rule that employees must receive overtime compensation at one and one-half times the regular rate for hours worked in excess of 40 hours during a seven-day workweek." McGavock, 452 F.3d at 423-24; 29 U.S.C. § 207(a). Section 207(a) states:

Employees engaged in interstate commerce; additional applicability to employees pursuant to subsequent amendatory provisions

(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

"Under 29 U.S.C. § 203(o), the time spent changing clothes is to be excluded from the measured working time [for purposes of § 207] if it has been excluded by custom or practice under a bona fide collective-bargaining agreement." Bejil v. Ethicon, Inc., 269 F.3d 477, 479 (5th Cir.2001); § 203(o). Section 203(o) states:

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 collective-bargaining agreement applicable to the particular employee.²

Allen argues that here the facts do not establish a "custom or practice under a bona fide collective-bargaining agreement" that would make changing time non-compensable.³ Allen claims that compensation for the pre- and post-shift changing time is a pre-existing right under the FLSA, subject to exclusion only if it has been affirmatively bargained away in CBA negotiations; i.e., negotiation of whether to pay for pre- and post-shift changing time must be shown before the court may conclude that there was a custom or practice as provided in § 203(o). According to Allen, there has been no acquiescence or waiver here because the union representatives did not have knowledge of the right to compensation for this pre- and post-shift changing time, nor any knowledge of or acquiescence to a policy of nonpayment for that time.

This court addressed a related issue in Bejil: whether employees had a right to compensation for changing time where the union and the employer had discussed that very question during CBA negotiations, but the CBA ultimately remained silent on the matter. 269 F.3d at 480. We concluded that such silence in the CBA, after the parties negotiated over the matter, resulted in a "custom or practice" of not compensating the employees for the changing time, and therefore § 203(o) barred claims for back wages for such time. Id. Here, unlike in Bejil, there was no discussion of whether McWane should compensate the Allen plaintiffs for such clothes changing time.

The Third and Eleventh Circuits have considered the specific question of whether § 203(o) requires the employees and employer to have discussed the issue of compensation for pre- and post-shift changing time, where the CBA is silent on the issue, in order to find that a custom or practice of nonpayment existed pursuant to a CBA. The Third and Eleventh Circuits concluded that it was not necessary for the issue to have been raised in negotiations. Anderson v. Cagle's, Inc., 488 F.3d 945, 958-59 (11th Cir.2007); Turner v. City of Philadelphia, 262 F.3d 222, 226 (3d Cir. 2001).

Turner presented the following uncontested facts: (1) Philadelphia had not compensated corrections officers for uniform change time for over 30 years; (2) every CBA between Philadelphia and the officers had been silent as to compensation for change time; (3) the union president proposed at labor management meetings with Philadelphia's Labor Relations Administrator that change time be made compensable, but the union did not make this request in formal CBA negotiations; (4) the union did, however, ask for and receive a uniform maintenance allowance; and (5) the union never filed a grievance or demanded arbitration based on the non-compensability of change time. Turner, 262 F.3d at 225.

The Turner plaintiffs made an argument similar to the one articulated by Allen, that "a `custom or practice' of non-compensability cannot come into being unless (1) the issue of compensability is specifically raised in formal collective bargaining negotiations, and then (2) dropped by the negotiators." Id. at 226. Rejecting this approach, the Third Circuit held that the plaintiffs and their union had acquiesced to the municipal government's...