Dekeyser v. Thyssenkrupp Waupaca, Inc., Case No. 08-C-488

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtWilliam C. Griesbach
PartiesRYAN DEKEYSER, THOMAS COOPER, HARLEY GRANIUS, and CARLOS LANTZ, on behalf of themselves and other similarly situated, Plaintiffs, v. THYSSENKRUPP WAUPACA, INC., d/b/a Waupaca Foundry, Inc., Defendant.
Decision Date19 July 2012
Docket NumberCase No. 08-C-488

and CARLOS LANTZ, on behalf of themselves
and other similarly situated, Plaintiffs,
d/b/a Waupaca Foundry, Inc., Defendant.

Case No. 08-C-488


Dated: July 19, 2012


This case is before me with a lengthy procedural history. To summarize briefly, Plaintiffs filed this lawsuit in June 2008 against their current or past employer, Defendant Thyssenkrupp Waupaca, Inc. d/b/a Waupaca Foundry, Inc. (Waupaca), claiming they had been denied wages for hours worked over the preceding three-year period. Plaintiffs brought one of their claims as a collective action for violations of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et seq., as amended by the Portal-to-Portal Act of 1947 (Portal Act), 29 U.S.C. § 251, et seq. Plaintiffs claim that under the FLSA they are owed compensation for time spent "donning and doffing gear and equipment, showering and walking to and from the production floor." (Compl. ¶ 1.) They claim that changing clothes and showering immediately after work are recommended precautions because of the toxic chemicals to which they are exposed and to minimize the risk of

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silica inhalation, which can cause severe and even fatal lung disease. The Court conditionally certified a collective class pursuant to Section 216(b) of the FLSA in December 2008.

In September 2009, Plaintiffs made an effort to obtain an early determination of the viability of its FLSA claim via summary judgment. (ECF No. 147.) Waupaca thereafter filed a cross-motion for summary judgment. (ECF No. 169.) Perhaps out of an abundance of caution, in September 2010 the Court denied both motions in part, stating that factual issues remained as to whether the nature of the work required compensation under the FLSA for time spent donning, doffing and showering. (ECF No. 266.) The parties thereafter embarked on a path of expensive and time-consuming discovery involving inquiry into the medical history of former and current Waupaca employees, as well as the various conditions existing in the different Waupaca foundries. From this, the parties attempted to narrow the inquiry to one or two plants for a bellwether trial of sorts, but discovery was nonetheless exhaustive and focused on the actual health problems, if any, workers had experienced as a result of exposure to cupola dust as a barometer of sorts of what the nature of the work required. The health risks alleged from failing to change and shower after work were not just limited to former and current employees but also included their families and others, yielding a potentially infinite amount of discovery. Discovery also presented many challenges in the form of endless variables in the individual health problems of employees and their causes. In other words, the case seemed to take on the appearance of the kind of expensive and time-consuming investigation and research program that would serve as a basis for adopting a regulatory response to the industry-wide question of whether foundry workers should be required to change their clothes and shower after work, as opposed to the kind of concrete and narrow determination that is more commonly the subject of litigation.

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Frustrated with the expense and delay involved in proceeding in this manner, Plaintiffs requested that the Court determine what the standard is for compensable "principal activities" under the FLSA. More specifically, Plaintiffs requested that this Court determine that employee activities that were in compliance with the instructions an employer was required to give workers under the Hazard Communication Standard, 29 C.F.R. § 1910.1200, promulgated by the Occupational Safety and Health Administration (OSHA) are compensable "principal activities" within the meaning of the FLSA as a matter of law. Hourly employees, Plaintiffs argue, should not be expected to establish the scientific validity of precautions recommended by government agencies and manufacturers of hazardous chemicals which OSHA requires their employer to convey to them.

To a large extent, Plaintiffs' request amounted to having the Court revisit the central issue raised in the earlier motion for summary judgment. Over Waupaca's objection, the Court agreed with Plaintiffs that the issue they had raised was one of law that would either determine liability or lend itself to certification for determination by the Court of Appeals. Either way, the Court concluded that resolution of the issue would advance the ultimate disposition of the case and rescue the parties from the "bottomless pit" into which they had fallen, been pushed or leaped (depending on one's view of the procedural history of the case). Although the Court suggested that the parties simply supplement their previous summary judgment motions, they reasonably suggested that they submit new briefs that would present their full arguments. The parties have each done so and the case is before me now for resolution. (ECF Nos. 386, 394.)

For the reasons discussed herein, the Court now concludes that employee activities that are in compliance with the hazard communication instructions that OSHA requires employers to give its employees are not for that reason alone compensable principal activities within the meaning of

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the FLSA. The Court further concludes that the legal standard applicable to the disposition of this case is whether the donning, doffing and showering activities are required by (1) the law; (2) the employer; or (3) the nature of the work. The undisputed facts of the case reveal that the activities at issue do not meet this standard and thus are not "work" under the FLSA. They therefore are not compensable. As a consequence, Waupaca is entitled to summary judgment on Plaintiffs' FLSA claim.


Defendant Waupaca employs approximately 3,500 people and operates six foundries in Waupaca and Marinette, Wisconsin; Tell City, Indiana; and Etowah, Tennessee. (ECF No. 219 at 2.) It manufactures a variety of ductile and gray iron cast parts for use in the automotive and other industries. (Id.) The parties agree that the work done at Waupaca's plants generates dust containing silica. (ECF No. 234 at 2.) The parties also agree that silica can be extremely hazardous to human health if ingested or inhaled in sufficient amounts.

Waupaca, like all employers whose employees can be exposed to hazardous chemicals or substances in the workplace, is governed by the Hazard Communication Standard (HSC) promulgated by OSHA. The HSC regulation imposes various requirements on employers aimed at ensuring that their employees are informed of the potential hazards posed by chemicals found at their workplace. Specifically, the standard required chemical manufacturers to label containers of hazardous chemicals with appropriate warnings. "Downstream" manufacturers — commercial purchasers who use the chemicals in their manufacturing plants — are obliged to keep the original labels intact or else transfer the information onto any substitute containers. The standard also

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requires chemical manufacturers to provide material safety data sheets (MSDS) to downstream manufacturers. The MSDSs are required to list the physical characteristics and hazards of each chemical, the symptoms caused by overexposure and any pre-existing medical conditions aggravated by exposure. In addition, the data sheets must recommend safety precautions and first aid and emergency procedures in case of overexposure, and provide a source for additional information. Both chemical manufacturers and downstream manufacturers are required to make the data sheets available to their employees and to provide training on the dangers of the particular hazardous chemicals found at each workplace. Dole v. United Steelworkers of America, 494 U.S. 26, 28-29 (1990). Covered employers are required by OSHA to have a written hazard communication program (HAZCOM) which is intended to convey the required information to the employees. 29 C.F.R. § 1910.1200(e).

Although Plaintiffs have previously focused primarily on exposure to silica dust as the primary risk warranting on-site changing and showering, in their more recent motion they have submitted many of the large number of MSDSs Waupaca produced in the course of discovery. Many concern chemicals that Waupaca does not use anymore. Others are used only in certain defined areas by specialized personnel who take other precautions to avoid the kind of exposure for which remedies are described. The showering, clothes handling/changing and laundering practices that are referenced in a number of the MSDSs relate to exposure circumstances that do not typically occur at the Waupaca plants. The showers, eye wash and fountains referenced in several MSDSs are safety showers, emergency eye wash stations and water fountains that are on the production floor and are used by employees in situations - often emergencies - where there can be an acute exposure to a particular chemical that requires immediate flushing of the area with water.

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These are not the same showers as those that are found in the locker rooms at the Waupaca plants, and the types of emergency washing recommended in these MSDSs are performed on the clock and are not at issue here.


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