Bouaphakeo v. Tyson Foods, Inc., No. C 07-4009-MWB.

• Court: U.S. District Court — Northern District of Iowa
• Writing for the Court: Mark W. Bennett
• Citation: 564 F.Supp.2d 870
• Parties: Peg BOUAPHAKEO, Javier Frayre, Jose A. Garcia, Mario Martinez, Jesus A. Montes, and Heribento Renteria,<SMALL><SUP>1</SUP></SMALL> Plaintiffs, v. TYSON FOODS, INC., Defendant.
• Decision Date: 03 July 2008
• Docket Number: No. C 07-4009-MWB.

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564 F.Supp.2d 870 Peg BOUAPHAKEO, Javier Frayre, Jose A. Garcia, Mario Martinez, Jesus A. Montes, and Heribento Renteria,¹ Plaintiffs,
v.
TYSON FOODS, INC., Defendant. No. C 07-4009-MWB. United States District Court, N.D. Iowa, Western Division. July 3, 2008.

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Brian P. McCafferty, Kenney, Eagan, McCafferty & Young, Plymouth Meeting, PA, MacDonald Smith, Smith & McElwain, Sioux City, IA for Plaintiffs.

Allison Dana Balus, Baird Holm, LLP, Heidi Ann Guttau-Fox, Steven D. Davidson, Baird, Holm, Mceachen, Pedersen, Hamann & Strasheim, Omaha, NE, Joel M. Cohn, Michael J. Mueller, Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS' MOTIONS FOR CONDITIONAL CERTIFICATION AS A COLLECTIVE ACTION UNDER THE FSLA AND CERTIFICATION AS A CLASS ACTION UNDER FEDERAL RULE OF CIVIL PROCEDURE 23

[TO BE FILED UNDER SEAL]

MARK W. BENNETT, District Judge.

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TABLE OF CONTENTS

 I. INTRODUCTION .......................................................... 877
                 II. FACTUAL BACKGROUND ................................................... 878
                III. COMPATIBILITY OF FLSA AND IWPCL CLAIMS ............................... 879
                 A. Preemption ........................................................ 880
                 B. Dual Certification ................................................ 886
                 C. Rules Enabling Act ................................................ 889
                 IV. FLSA COLLECTIVE ACTION ............................................... 890
                 A. Legal Standards ................................................... 890
                 B. Legal Analysis .................................................... 894
                 1. First or second step? .......................................... 894
                 2. Conditional certification ...................................... 895
                 a. Substantive analysis under the first step ................... 896
                 b. Substantive analysis under the second step .................. 897
                 i. Employment and factual settings of plaintiffs .......... 897
                 ii. Defenses available to Tyson ............................ 899
                 iii. Fairness, manageability, and procedural considerations.. 900
                 C. Conditionally Certified Collective Action Class ................... 900
                 V. IWPCL CLASS ACTION ................................................... 901
                 A. Rule 23(a) Legal Standards And Analysis ........................... 903
                 1. Commonality .................................................... 903
                 2. Typicality ..................................................... 904
                 3. Adequacy of representation ..................................... 905
                 4. Merged result .................................................. 906
                 B. Rule 23(b) Legal Standards And Analysis ........................... 907
                 1. Rule 23(b)(1) .................................................. 907
                 2. Rule 23(b)(3) .................................................. 908
                 C. Certificated Class Action ......................................... 909
                 VI. CONCLUSION AND ORDER ................................................. 909
                

Plaintiff employees request the court to allow them to proceed as representatives of a group of employees against Defendant for its allegedly illegal wage payment practices. Several issues must be addressed in considering Plaintiffs' request, but one question stands out: Does Defendant's "gang time" compensation system allow Plaintiff employees to gang up on Defendants?

I. INTRODUCTION

Plaintiffs Dale Sharp, et al., filed a "Class Action and Representative Action Complaint" against Defendant Tyson Foods, Inc., on February 6, 2007. Dkt. # 2. Plaintiffs bring two claims against Tyson: (1) a class action under Federal Rule of Civil Procedure 23 for Tyson's alleged violations of the Iowa Wage Payment Collection Law (IWPCL), and (2) a collective action under 29 U.S.C. § 216(b) for Tyson's alleged violations under the Fair Labor Standards Act (FLSA). Plaintiffs state the court has subject matter jurisdiction over their IWPCL claim under 28 U.S.C. § 1332(d) (diversity jurisdiction for class actions), and subject matter jurisdiction over their FLSA claim under 28 U.S.C. § 1331 (federal question jurisdiction). Tyson filed its answer, raising many affirmative defenses, on March 28, 2007. Dkt. # 15.

On July 6, 2007, the court approved a scheduling order and discovery plan. Dkt.

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# 23. The court limited discovery to class certification issues, and set deadlines for the parties' briefs related to class action and collective action certification. On November 27, 2007, the court approved the parties' protective order to keep certain information confidential during the parties' discovery and litigation of this lawsuit. Dkt. # 29. On February 4, 2008, Plaintiffs filed a renewed sealed motion for the court to conditionally certify its FLSA claim as a collective action under the FLSA. Dkt. #34. On the same date, Plaintiffs also filed a renewed sealed motion for the court to certify its IWPCL claim as a class action under Rule 23. Dkt. #35. Tyson responded with its resistance to Plaintiffs' motion for class certification on March 4, 2008, Dkt. # 45, and with its resistance to Plaintiffs' motion for conditional certification on March 5, 2008, Dkt. # 49. Plaintiffs then filed their replies on March 26, 2008. Dkt. # 59. No party has requested oral arguments on the class certification and conditional collective action certification issues. As a result, the matter is fully submitted. The trial date has not yet been set, but a telephonic status conference is set for July 9, 2008, before Chief Magistrate Judge Paul A. Zoss. Dkt. # 61.

II. FACTUAL BACKGROUND

There were originally ten named plaintiffs in this action, but only six remain due to the dismissal of all claims involving Tyson's Denison, Iowa, facility. Dkt. #40. The six remaining plaintiffs are current or former production employees who work or who have worked for Tyson's Storm Lake, Iowa, pork processing facility. Tyson's facility in Storm Lake receives, slaughters, and processes hogs into various cuts of pork that are then packaged and shipped to other Tyson facilities or directly to customers. The Storm Lake facility has approximately 1,600 hourly production and support employees that work on three shifts. These employees work in six main departments: the Kill, Cut, Retrim, Materials Handling/Load Out, Rendering, and Maintenance departments. Most of the hourly employees work in the Kill, Cut, and Retrim departments. None of the six remaining named plaintiffs have worked in the Rendering, Load Out, or Maintenance departments at Tyson.

All hourly production employees are required to clock in and out before and after their shift. Clocking in and out is generally only for attendance purposes. Clocking in and out only affects an employee's paid time if the employee clocks in late (in which case the employee's pay is reduced) or comes in early or stays late to perform set up and clean up work (in which case the employee's pay is increased). The employees in the Kill, Cut, and Retrim departments are paid by "gang time,"² or the length of production in their department, which is generally the time it takes for hogs to travel on mechanized belts through the department. More specifically, gang time begins when the first hog or piece of pork "hits the floor" of the specific department, and gang time ends when the last hog or piece of pork "hits the floor" in that department. As a result, gang time represents the amount of work each employee performs while on the production line, and those employees at the beginning of the production line start and end a few minutes earlier than those employees at the end of the production line. The employees

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in the Rendering, Materials Handling/Load Out, and Maintenance departments are not paid by gang time. Instead, these employees are paid based on a preset start time until a pre-set end time.

In addition, most hourly employees at Tyson are given a "K code" value to compensate them for the work they perform donning and doffing their Personal Protective Equipment (PPE) before and after their shift begins. PPE is the clothing Tyson provides their employees and requires them to wear to perform their jobs. Prior to 2007, Tyson paid every employee within certain departments an extra four minutes to compensate them for the extra time they needed to don and doff their PPE. In 2007, and as a result of the United States Supreme Court decision in IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), Tyson changed its K code policy. Now, all Tyson employees are given a K code value specific to their positions to represent the extra time they need to be compensated for donning and doffing their PPE. Some are not given any K code value, but those that don and doff PPE are given a K code value somewhere between four and seven minutes.

All hourly production employees are required to wear certain PPE, but not all wear the same PPE. Employees often wear PPE such as hard hats, hairnets, beard nets (if applicable), rubber soled or steel-toed boots, hearing protection, rubber or cotton or kevlar or mesh gloves, company issued shirts and pants ("whites"), frocks, belly guards, aprons, and arm guards. In addition, most employees throughout the plant use knives, and these employees are required to wear additional clothing as added protection. Most employees who use knives are required to dip their knife and related equipment³ in a sanitizing solution before beginning production work. Likewise, when leaving the department, the employee must perform the same sanitation procedure. In addition, at the end of their shift, these employees are required to rinse their knives and related equipment at one of several wash nozzles either in the production...