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Harvey v. AB Electrolux

United States District Court, N.D. Iowa, Central Division

March 28, 2014

NICK HARVEY, CINDY STURTZ and DAVID AUSBORN, Individually and on behalf of all others similarly situated, Plaintiffs,
v.
AB ELECTROLUX, ELECTROLUX HOME PRODUCTS, INC., ELECTROLUX HOME PRODUCTS OF NORTH AMERICA n/k/a ELECTROLUX MAJOR APPLIANCES NORTH AMERICA, and ELECTROLUX HOME CARE PRODUCTS, INC., Defendants

Page 951

For Nick Harvey, Individually and on Behalf of All Others Similarly Situated, David Ausborn, Individually and on Behalf of All Others Similarly Situated, Cindy Sturtz, Individually and on Behalf of All Others Similarly Situated, Plaintiffs: Andrew C Ficzko, LEAD ATTORNEY, PRO HAC VICE, Stephan Zouras, LLP, Chicago, IL; James B Zouras, Ryan F Stephan, LEAD ATTORNEYS, PRO HAC VICE, StephanZouras, Chicago, IL; Jon A Tostrud, PRO HAC VICE, Tostrud Law Group, P.C., Los Angeles, CA; J Barton Goplerud, Hudson Mallaney Shindler & Anderson, PC, West Des Moines, IA.

For AB Electrolux, Inc, Electrolux Home Products North America, Electrolux Home Products Inc, Electrolux Home Care Products, Inc, Defendants: James R Swanger, LEAD ATTORNEY, Kelsey J Knowles, Michael R Reck, Belin McCormick, P.C., Des Moines, IA; Kristina A Yost, LEAD ATTORNEY, PRO HAC VICE, Matthew W Lampe, PRO HAC VICE, Jones Day, New York, NY.

OPINION

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MARK W. BENNETT, U.S. DISTRICT COURT JUDGE.

MEMORANDUM OPINION AND ORDER REGARDING PARTIES' MOTIONS FOR PARTIAL SUMMARY JUDGMENT

TABLE OF CONTENTS

I. INTRODUCTION AND BACKGROUND

A. Factual Background

B. Procedural Background

II. LEGAL ANALYSIS

A. Summary Judgment Standards

B. Overview Of The FLSA

C. Analysis Of Plaintiffs' Donning Claims

1. Section § 203(o)

2. Does plaintiffs' conduct constitute changing clothes?

3. Custom or practice

D. Analysis Of Plaintiffs' Walking Claims

E. Analysis Of Plaintiffs' Washing Claims

1. Legal framework

2. Whether the activities were required by Electrolux

3. Whether the activities were necessary for the

employee to perform his or her duties

4. Whether the activities primarily benefit Electrolux

F. Analysis Of Plaintiffs' IWPCL Claims

1. Overview of the IWPCL

2. Analysis

III. CONCLUSION

Plaintiffs have brought claims on behalf of hourly employees at defendants' former laundry appliances plant in Webster City, Iowa. Plaintiffs claim that defendants' failure to compensate them for the time they spent donning personal protective equipment (" PPE" ), walking to their work stations after donning their PPE, and washing their gloves and arm guards at home violates the Fair Labor Standards Act of 1938 (" FLSA" ), 29 U.S.C. § 1 et seq. and the Iowa Wage Payment and Collection Law (" IWPCL" ), IOWA CODE § 91A.1 et seq. The parties have each moved for partial summary judgment, requiring me to decide, inter alia, whether donning workers' personal protective equipment is " changing clothes" under the FSLA, 29 U.S.C. § 203(o).

I. INTRODUCTION AND BACKGROUND

A. Factual Background

I set out only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the parties' motions for partial summary judgment. At least for the purposes of summary judgment, the facts recited here are undisputed. I will discuss additional factual allegations, and the extent to which they are or are not disputed or material, if necessary, in my legal analysis.

Until March 31, 2011, Electrolux Home Products, Inc. (" Electrolux" ) operated a laundry appliances plant in Webster City, Iowa, that manufactured washers, dryers,

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and laundry centers (" the plant" ). The plant operated continuously for several decades and closed permanently on March 31, 2011. Electrolux employed approximately 1,800 hourly production workers at the plant. Approximately 1,200 of these employees held assembly positions with the remaining 600 in support positions. There were five assembly or production lines at the plant and the following twelve support departments: fabrication, final pack, plastics, press, paint, tool and die, maintenance, receiving and materials, service, next level washer fabrication, alliance fabrication, and receiving quality and assurance.

The plant was unionized and employees were represented by Local 442 of the United Automobile, Aerospace and Agricultural Implement Workers of America (" Local 442" ). Collective bargaining agreements between Electrolux and Local 442 concerning the plant existed for 50 years. The most recent collective bargaining agreement was executed in June 2008.

Electrolux trained its employees on its timekeeping practices. Electrolux had an electronic badge swipe system which production workers used to " clock in" and " clock out." Electrolux's management accessed daily the computerized badge swipe times of its employees. The first shift of the production line started at 6:30 a.m.[1] Electrolux ran multiple shifts in the various departments daily. Electrolux prohibited employees from clocking in more than 15 minutes before the start of their shifts.

Electrolux implemented a work rule in July 2007 requiring hourly production workers to wear gloves and arm guards in all working areas of the plant. The purpose of the gloves and arm guards was to protect employees from potential injuries. Before that, PPE requirements had been decided on a job-by-job basis except that all hourly production workers were required to wear safety glasses. The purpose of the safety glasses was to protect employees from injury. Electrolux required that employees have their safety glasses on as soon as they entered the plant. Generally, employees were required to have their gloves and arm guards on at the start of their shifts.

Many employees were already required to wear gloves prior to July 2007. The gloves and arm guards were made of knit synthetic fabric, and the safety glasses were plastic. Employees in certain other departments were required to wear additional PPE. The other types of PPE were worn on a department by department, job by job, or task by task basis.[2] For example, some employees, such as drum seamers and other employees who welded, were required to wear aprons. Electrolux required aprons to protect employees from potential cuts from raw edges. Aprons took no more than 30 seconds to put on. Aprons were generally kept in employee lockers or work stations. Some employees may have chosen to wear aprons either to allow them to wear shorts or to keep their clothing clean.[3]

Some assembly work stations required employees to wear foam disposable ear plugs. The ear plugs were intended to protect employees' eardrums in certain high noise level areas of the plant. For example, employees in the press department

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were required to wear ear plugs because of the noise level in that department. Employees performing particular jobs within their support departments, such as certain employees in alliance fabrication or washer fabrication, also wore ear plugs. Other employees working near loud machines may have chosen to wear ear plugs. The ear plugs took about 30 seconds to put in. Since they were disposable, employees wore a fresh pair of ear plugs each day. Employees could obtain ear plugs from utility workers or forepersons. Employees often kept multiple pairs of ear plugs so that they could come to work in the morning with their earplugs already. Most employees who wore ear plugs donned them at their work stations. Employees who wore aprons and/or ear plugs generally were required to have those on at the start of their shifts.

Employees in maintenance, tool and die, and certain employees in plastics, paint, and fabrication wore uniforms they received from Electrolux. They were each issued a number of uniforms. Employees who wore uniforms provided by Electrolux were permitted to take them home and don them there. Electrolux also generally required employees to wear hard-soled shoes that were not canvas or open. Some employees elected to wear steel-toed shoes or boots, but it was not required. No employees at the plant wore rubber suits.

Employees in the receiving department had to wear a face shield while filling batteries. Employees in press had to wear face shields when operating the grinder. Employees in maintenance and tool and die also wore face shields for certain tasks. The face shields were kept immediately next to the workstation. Employees in the paint department were required to wear respirators when they were working in paint booths or mixing paint. Respirators were generally kept in employee lockers and retrieved as needed during the shift. Paint department employees also occasionally could elect to wear painter's nuisance masks for certain tasks. Employees in the paint department working in the paint booths were also required to wear paper suits and rubber boots to protect their clothing and shoes from being damaged. Employees in the paint department and the press department who cleaned out waste water also wore rubber boots because of the substances in the water. Electrolux required face shields, respirators, and rubber boots for waste water for employee safety. The paper suits and rubber boots worn by paint department employees and any employee uniforms were solely for the purpose of keeping employees' clothing and shoes clean.

Certain employees were required to have their gloves and arm guards on before starting their shifts. Employees could put on their safety glasses, gloves, and arm guards before entering the plant, or at home if they chose. Some employees stored their PPE in their lockers. There was no requirement that employees store their PPE in lockers, but they could store it there if they wished. Employees also could take their PPE home rather than storing it in their lockers. Some employees who stored their PPE in their lockers sometimes retrieved their PPE from their lockers before arriving at their workstations at the start of their shift, and sometimes returned their PPE to their lockers after the end of their shift.

The practice at the plant was not to pay employees for time spent putting on gloves, arm guards, and safety glasses before their shift. The collective bargaining agreement contains no reference to donning and doffing, clothes changing, or PPE maintenance. Nothing in the collective bargaining agreement required that employees

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be paid for time spent putting on gloves, arm guards, and safety glasses before their shift. It was also the practice at the plant to not pay employees for time spent washing gloves or arm guards at home if they chose to do so. Electrolux did not require employees to wash their gloves or arm guards.

Electrolux consented to a request that employees be permitted to bring their gloves and arm guards home and independently maintain them. Employees were permitted to personalize their arm guards. In July 2007, Local 442 filed a grievance over whether or not Electrolux should be washing gloves and arm guards for employees. Following discussions between Electrolux and Local 442, Electrolux agreed to offer a cleaning service to wash the gloves and arm guards for employees. If employees wanted their gloves and arm guards washed, they could turn in their dirty gloves and arm guards, and pick up washed gloves and arm guards at the plant.[4] Some employees did not believe that the cleaning service did a good enough job cleaning the gloves and arm guards and some employees washed their gloves and arm guards at home on their own.

It took plaintiff Nick Harvey less than one minute to put on gloves, arm guards, and safety glasses. Harvey also wore green foam earplugs. Harvey could not estimate how long it took him to put in the earplugs. Other than gloves, arm guards, and safety glasses, plaintiff David Ausborn did not wear any other PPE. It took Ausborn approximately two minutes to put on his gloves and arm guards. Plaintiff Cindy Sturtz also wore an apron to protect her when she worked in the paint department, but only when she wore shorts to work. She sometimes had trouble finding the apron, but it still took her just a couple of minutes to find her apron and put it on. It took between 2 to 4 minutes for most of the plaintiffs to walk to their workstations. Plaintiffs spent the following cumulative amounts of time donning and walking to their work stations each day: Harvey, 2-4 minutes; Sturtz, 5 minutes; Ausborn, 4-7 minutes.

Employee lockers were located at various places in the plant. There were no formal locker assignments and some employees had lockers while others did not. Some, but not all, lockers were close to employees' work stations. For example, Cindy Sturtz's locker was on the other side of her department, while Nick Harvey's locker was right next to his work area. Ausborn's locker was right by his work area when he was on the alliance line, but halfway across the plant when he was on the next level washer line.

Some employees who had lockers chose to don their gloves and arm guards at their lockers. Some employees without lockers donned their gloves and arm guards at their workstations. Other employees, who had lockers, still chose to don their gloves and arm guards at their workstations because they preferred to do it there. Some employees donned some of their PPE at home while other employees put on their gloves and arm guards around the time clock which was just inside the plant entrance.

Electrolux's consistent practice for over thirty years was not to pay employees for the time spent putting on PPE, including, but not limited to, gloves, arm guards, and safety glasses. Local 442 filed hundreds of grievances during the period from August

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3, 2008, through March 31, 2011.[5] During that period, Local 442 never filed a grievance seeking pay for time employees spent donning PPE.

Electrolux never required employees to wash their gloves or arm guards or to keep them at any particular level of cleanliness. Harvey washed his arm guards and gloves twice a week, and it took him five minutes to load them into the washer and two to three minutes to load them into the dryer. If his gloves and arm guards were heavily soiled, Harvey had to wash them twice. Sturtz washed her gloves and arm guards once or twice a week. Although she was unsure of the exact time involved, Sturtz estimated that it took her two and one-half minutes to walk from the upstairs of her home to her basement and put her gloves and arm guards into the washer. She also estimated that it took her approximately 45 seconds to remove her gloves and arm guards from the washer and place them in the dryer. Approximately a quarter of the time, she washed her gloves and arm guards with her jeans. Gary Wirtz washed his gloves and arm guards with his other clothes.

Local 442 never sought pay for time employees spent washing their gloves and arm guards in either their collective bargaining negotiations or by filing a subsequent grievance. Local 442 never complained that the washing service provided by Electrolux was inadequate in any way.

B. Procedural Background

On August 3, 2011, plaintiffs filed a " Class and Collective Action Complaint" raising claims for unpaid wages for donning activities under the FSLA and IWPCL. On September 13, 2011, plaintiffs filed an amended " Class and Collective Action Complaint," again raising claims for unpaid wages for donning activities under the FSLA and IWPCL. Specifically, plaintiffs seek back overtime pay for the time they spent donning PPE, including gloves, arm guards, and safety glasses, prior to the start of their shifts (" donning claim" ). Plaintiffs also seek back overtime pay for the time they spent walking to their work stations after donning their PPE (" walking claims" ) and for the time they spent washing their gloves and arm guards at home (" washing claim" ). Defendants AB Electrolux, and Electrolux Home Products, Inc., Electrolux Home Care Products North America, and Electrolux Home Care Products, Ltd. (" Electrolux" ) filed their answer and twenty-two affirmative defenses on October 7, 2011.

Both parties have now moved for partial summary judgment. In its motion, Electrolux seeks summary judgment on four parts of plaintiffs' lawsuit. First, Electrolux seeks summary judgment on plaintiffs' claims, under the FLSA, that they are entitled to overtime pay for the time they spent donning protective clothing and items prior to the start of their shifts. Electrolux argues that this time is non-compensable under § 203(o) of the FLSA, is de minimis, and is not integral and indispensable to any principal activities. Second, Electrolux seeks summary judgment on plaintiffs' FLSA claims that they are owed overtime pay for the time spent walking to their work stations after donning PPE. Electrolux contends that this time is not compensable under the Portal-to-Portal Act. Electrolux also argues that this time is not compensable under the FLSA because the donning actions did not trigger the continuous workday. Alternatively, Electrolux argues that this time

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isn'tt compensable because it is de minimis. Third, Electrolux requests summary judgment on plaintiffs' FLSA claims for overtime pay for the time they spent washing their gloves and arm guards at home. Electrolux argues that this time is not compensable because this activity was not primarily for the benefit of Electrolux and because it is de minimis. Finally, Electrolux seeks summary judgment on plaintiffs' parallel claims under the IWPCL. Electrolux contends that plaintiffs' IWPCL claims fail as a matter of law because they are based on violations of the FLSA which plaintiffs are unable to substantiate. Plaintiffs contest each aspect of Electrolux's motion.

Plaintiffs seek partial summary judgment on certain affirmative defenses asserted by Electrolux. First, plaintiffs seek summary judgment on Electrolux's affirmative defense that § 301 of the Labor Management Relations Act controls (" Seventeenth Affirmative Defense" ), and Electrolux's affirmative defense that plaintiffs' failure to follow and exhaust the grievance process outlined in the applicable collective bargaining agreement (" CBA" ) bars their claims (" Eighteenth Affirmative Defense" ). Second, plaintiffs seek summary judgment on Electrolux's affirmative defense that plaintiffs' donning time is not compensable because employees' donning of safety equipment was not compensable time under the express terms of the CBA (" Sixth Affirmative Defense" ). Third, plaintiffs seek summary judgment on Electrolux's affirmative defense that plaintiffs' donning activities are not compensable under the Portal-to-Portal Act, 29 U.S.C. § 254, because they are " preliminary" or " postliminary" to a principle activity (" Fifth Affirmative Defense" ). Fourth, plaintiffs seek summary judgment on Electrolux's affirmative defense that the " de minimis " exception applies to plaintiffs' activities (" Fourth Affirmative Defense" ). Finally, plaintiffs seek summary judgment on Electrolux's " good faith" affirmative defense, in which Electrolux asserts that it acted in good faith, pursuant to 29 U.S.C. § 259, in conformity with Department of Labor regulations and interpretations of the FLSA (" Third Affirmative Defense" ). Electrolux does not resist plaintiffs' motion with respect to its Third, Seventeenth, and Eighteenth Affirmative Defenses. Accordingly, plaintiffs' motion is granted as to Electrolux's Third, Seventeenth, and Eighteenth Affirmative Defenses and those affirmative defenses are dismissed. Electrolux resists the remaining portions of plaintiffs' motion.

II. LEGAL ANALYSIS

A. Summary Judgment Standards

Summary judgment is only appropriate when " the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (" Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." ); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As the Eighth Circuit Court of Appeals has explained,

" On a motion for summary judgment, 'facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.'" Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380,

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127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotations omitted). " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmovant " must do more than simply show that there is some metaphysical doubt as to the material facts," and must come forward with " specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " 'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Ricci, 129 S.Ct. at 2677, quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (8th Cir. 2011) ( en banc ). Summary judgment is particularly appropriate when only questions of law are involved, rather than factual issues that may or may not be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 620 (8th Cir. 2006). I ...


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