Castaneda v. JBS S.A. ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 3, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ESMERALDA CASTANEDA; JOSHUA
J. PETERS; ANDREW RUIZ;
ANGELICA GUTIERREZ; JOANN S.
LOPEZ; MARIANO GALLEGOS; TIM
PRAEUNER; DAWN ALLMER;
SAMUEL SANCHEZ; ADAN
ABDULLAHI; AMINO N. GALAL;
ISTAHIL FARAH JAMA; ABDIRIZAK
M. ABDI; MUHYADIN AU; MOHAMED
HOROR; HABIBO A. ELMI; HIBO H. Nos. 14-1217 & 14-1221
MAALIN; FAIUMA JAMA; BATULA
AWL; SADI M. ADAN; ABDIRIZAK
AHMED; AHMED ALI GELLE;
HABIBA ABDI; KURESHA S. NOOR;
MOHAMED ISSE; MOHAMED A.
MOHAMED; ABDI ABDIRAHMAN;
MOHAMED MOHAMED; MOHAMED
BUROW; ISRAD IBRAHIM; ABDI
JAMA; ABDIAZIZ OSMAN; IBRAHIM
O. HASSAN; NUR A. ABDULLAHI;
ABDUL KADIR ALI; NUR B. SHUBE;
ABDIAMAR BARE; SUHAN JAMA;
HASSAN FARAH; NAJIMA HANDULE;
AHMED SIRAD ABDI; ALI ABDI;
ABDULLAHI ABDIVAHMAN;
SALEBAN AHMED; ABDIMAHAT ALI;
MANUEL GALLEGOU; ABDIRAHMAN
HASSAN; SADIYO HASSAN; NIMC
MOHAMED; ALI AHMED MUSE;
NIMO OMAR; ABDUL PATAH;
ASHLEY TAYLOR; SAHRO JAMA;
FARDOWSA ALI; IBRAHIM A. IMAN;
AHMED KHALIF; IRAQ I. ABADE;
MOHAMED F. JAMA; MOHAMUD
MOHAMED AHMED; ANAB ABDI;
HAJI ALI MOHAMUD; KAMAL
SALAH; FARDOWSA ANSHUR;
SAHRA NUR; TAJIR HERSI,
Plaintiffs - Appellants / Cross-
Appellees,
v.
JBS USA, LLC,
Defendant - Appellee / Cross-
Appellant,
and
SWIFT BEEF COMPANY; SWIFT &
COMPANY, INC.; JBS SWIFT &
COMPANY; JBS S.A.,
Defendants.
_________________________________
ORDER
_________________________________
Before KELLY, HARTZ, and GORSUCH, Circuit Judges.
_________________________________
These matters are before the court on the appellants/cross-appellees’ Petition for
Rehearing and Rehearing En Banc.
The request for panel rehearing is denied by the original panel members. The
petition was also transmitted to all of the judges of the court who are in regular active
service. As no member of the panel and no judge in regular active service on the court
requested that the court be polled, the request for en banc review is likewise denied.
The panel has concluded, however, sua sponte, that the original decision should be
amended to add one word to page 17. The change is in the 5th line up from the bottom of
2
the page. The new amended decision is attached to the order. The clerk is directed to
issue the amended version nunc pro tunc to the original filing date.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
3
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 31, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ESMERALDA CASTANEDA; JOSHUA
J. PETERS; ANDREW RUIZ;
ANGELICA GUTIERREZ; JOANN S.
LOPEZ; MARIANO GALLEGOS; TIM
PRAEUNER; DAWN ALLMER;
SAMUEL SANCHEZ; ADAN
ABDULLAHI; AMINO N. GALAL;
ISTAHIL FARAH JAMA; ABDIRIZAK
M. ABDI; MUHYADIN AU; MOHAMED
HOROR; HABIBO A. ELMI; HIBO H. Nos. 14-1217 and 14-1221
MAALIN; FAIUMA JAMA; BATULA
AWL; SADI M. ADAN; ABDIRIZAK
AHMED; AHMED ALI GELLE;
HABIBA ABDI; KURESHA S. NOOR;
MOHAMED ISSE; MOHAMED A.
MOHAMED; ABDI ABDIRAHMAN;
MOHAMED MOHAMED; MOHAMED
BUROW; ISRAD IBRAHIM; ABDI
JAMA; ABDIAZIZ OSMAN; IBRAHIM
O. HASSAN; NUR A. ABDULLAHI;
ABDUL KADIR ALI; NUR B. SHUBE;
ABDIAMAR BARE; SUHAN JAMA;
HASSAN FARAH; NAJIMA HANDULE;
AHMED SIRAD ABDI; ALI ABDI;
ABDULLAHI ABDIVAHMAN;
SALEBAN AHMED; ABDIMAHAT ALI;
MANUEL GALLEGOU; ABDIRAHMAN
HASSAN; SADIYO HASSAN; NIMC
MOHAMED; ALI AHMED MUSE;
NIMO OMAR; ABDUL PATAH;
ASHLEY TAYLOR; SAHRO JAMA;
FARDOWSA ALI; IBRAHIM A. IMAN;
AHMED KHALIF; IRAQ I. ABADE;
MOHAMED F. JAMA; MOHAMUD
MOHAMED AHMED; ANAB ABDI;
HAJI ALI MOHAMUD; KAMAL
SALAH; FARDOWSA ANSHUR;
SAHRA NUR; TAJIR HERSI,
Plaintiffs - Appellants / Cross-
Appellees,
v.
JBS USA, LLC,
Defendant - Appellee / Cross-
Appellant,
and
SWIFT BEEF COMPANY; SWIFT &
COMPANY, INC.; JBS SWIFT &
COMPANY; JBS S.A.,
Defendants.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:08-CV-01833-RPM)
_________________________________
Robert L. Wiggins,Jr., Wiggins, Childs, Pantazis, Fisher & Goldfarb, Birmingham,
Alabama (Robert J. Camp, Wiggins, Childs, Pantazis, Fisher & Goldfarb, Birmingham,
Alabama, Diane Vaksdal Smith, Burg Simpson Eldredge Hersh & Jardine, P.C.,
Englewood, Colorado, and Joseph D. Lane, The Cochran Law Firm, P.C., Dothan,
Alabama, with him on the briefs for Plaintiffs-Appellants/Cross-Appellees.
W.V. Bernie Siebert, Sherman & Howard, L.L.C., Denver, Colorado (Kelly K. Robinson,
Sherman & Howard, L.L.C., Denver, Colorado and Lori M. Phillips, Sherman &
Howard, L.L.C., Atlanta, Georgia, with him on the briefs), for Defendant-
Appellee/Cross-Appellant.
_________________________________
Before KELLY, HARTZ, and GORSUCH, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
2
_________________________________
Plaintiffs are current and former hourly employees in the slaughter and fabrication
operations of a beef-processing plant in Greeley, Colorado, now owned by JBS USA,
LLC (JBS). Employees on the slaughter line kill the cattle and disassemble them into
sides of beef; employees on the fabrication line cut the sides into various beef products.
Plaintiffs have been paid under the terms of collective-bargaining agreements negotiated
between the United Food and Commercial Workers International Union (the Union) and
JBS. (For convenience we will refer to both JBS and its predecessors as JBS.)
Plaintiffs filed suit against JBS in October 2010, claiming that they did not receive
compensation required by the Fair Labor Standards Act (FLSA). The disputes concern
when the work day begins, when it ends, and what, if any, compensation is due when the
production lines halt for a 30-minute meal break. After a bench trial the United States
District Court for the District of Colorado found that Plaintiffs had failed to carry their
burden of proof and entered judgment in favor of JBS. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm. The court could properly find that compensation for
Plaintiffs’ activities complied with the FLSA.
I. BACKGROUND
A. Introduction to the Legal Framework
The FLSA typically requires an employer to compensate employees for all the
time that the employee spends working on the employer’s behalf. See Smith v. Aztec
Well Servicing Co., 462 F.3d 1274, 1285 (10th Cir. 2006). The FLSA does not define
work, see Smith, 462 F.3d at 1285, but the Supreme Court has defined the term in the
3
FLSA as “physical or mental exertion (whether burdensome or not) controlled or required
by the employer and pursued necessarily and primarily for the benefit of the employer
and his business,” Tenn. Coal, Iron & R. Co. v. Muscoda Local N. 123, 321 U.S. 590, 598
(1944) (emphasis added).
One issue that has been the source of many disputes is when the work day begins
and ends. A partial solution is provided by § 4(a) of the Portal-to-Portal Act of 1947,
under which commute time and walking to and from the employee’s work station is
ordinarily noncompensable. It provides that the term work does not include either (1)
walking or travel time to and from the employee’s “actual place of performance of the
principal activity or activities which [the] employee is employed to perform” or (2)
“activities which are preliminary to or postliminary to said principal activity or
activities.” 29 U.S.C. § 254(a). The Act leaves open to dispute, however, what is
encompassed by the term principal activity. The Supreme Court has explained that
“activities performed either before or after the regular work shift, on or off the production
line, are compensable . . . if those activities are an integral and indispensable part of the
principal activities for which covered workmen are employed and are not specifically
excluded by Section 4(a)(1).” Steiner v. Mitchell, 350 U.S. 247, 256 (1956) (time that
battery-plant employees exposed to toxic chemicals spent changing clothes and
showering pre- and post-shift was compensable). In other words, “any activity that is
integral and indispensable to a principal activity is itself a principal activity.” IBP, Inc. v.
Alvarez, 546 U.S. 21, 37 (2005) (internal quotation marks omitted).
4
To avoid some of the remaining points of controversy, Congress has left a few
matters to collective bargaining. After a Department of Labor interpretive bulletin said
that changing clothes, at least in some circumstances, could be an integral part of a
worker’s principal activity (and therefore compensable, as confirmed in Steiner, 350 U.S.
at 256), Congress enacted 29 U.S.C. § 203(o). See Sandifer v. U.S. Steel Corp., 134 S.
Ct. 870, 875–76 (2014). Under that statute a collective-bargaining agreement can
provide that changing clothes and washing at the beginning and end of the work day are
not compensable. The parties have disputed what activities (such as donning (and
doffing) protective gear and picking up (and disposing of) equipment) can be
encompassed by this exclusion from compensation. And they have also disputed whether
workers must be compensated for their walk time between the locker rooms (where they
don and doff clothing) and the production lines. We will discuss the applicable law in
greater detail below.
Another ground for ignoring some activities at the beginning and end of the work
day is the de minimis doctrine, which originated in Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 692 (1946). “When the matter in issue concerns only a few seconds or
minutes of work beyond the scheduled working hours, such trifles may be disregarded.
Split-second absurdities are not justified by the actualities of working conditions or by
the policy of the [FLSA].” Id. The de minimis doctrine has been codified (and limited,
see Sandifer, 134 S. Ct. at 880 n.8) by the Department of Labor, which has promulgated a
rule stating that “insubstantial or insignificant periods of time beyond the scheduled
working hours, which cannot as a practical administrative matter be precisely recorded
5
for payroll purposes, may be disregarded,” 29 C.F.R. § 785.47, although “[a]n employer
may not arbitrarily fail to count as hours worked any part, however small, of the
employee’s fixed or regular working time or practically ascertainable period of time he is
regularly required to spend on duties assigned to him.” Id.; see Reich v. Monfort,
144 F.3d 1329, 1333–34 (10th Cir. 1998) (adopting three-factor test to determine whether
time is de minimis: “(1) the practical administrative difficulty of recording the additional
time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed
the work on a regular basis”); id. at 1333 (“There is no precise amount of time that may
be denied compensation as de minimis.”).
Once the work day starts, all activity is ordinarily compensable until the work day
ends. Under the continuous-workday rule promulgated by the Secretary of Labor: “[T]o
the extent that activities engaged in by an employee occur after the employee commences
to perform the first principal activity on a particular workday and before he ceases the
performance of the last principal activity on a particular workday, the provisions of [§ 4
of the Portal-to-Portal Act] have no application.” 29 C.F.R. § 790.6(a); see Alvarez,
546 U.S. at 28. That is, an activity (such as walking to or from a work station) that
occurs between the first and last principal activities of the day is compensable even if that
same activity would be excluded from compensable time under the Portal-to-Portal Act
had it occurred before the first or after the last principal activity of the day. See Alvarez,
546 U.S. at 37.
One exception to the continuous-workday rule is at issue in this litigation. The
employer does not need to compensate employees for a bona fide meal break, which is
6
ordinarily at least 30 minutes. See 29 C.F.R. § 785.19(a). The parties have disputed
whether certain activities at the beginning and end of the 30-minute meal breaks at the
JBS plant are compensable work and even whether the break meets the requirement for a
bona fide meal break. Again, we will discuss the applicable law in more detail below.
B. Work at the Plant and Agreement with the Union
To prevent contamination of beef products, government regulations and JBS rules
require workers to wear hair nets, beard nets, plastic aprons, plastic gloves, plastic
sleeves, cotton gloves, frocks, and surgical scrubs. For worker safety, they are also
required to wear personal protective equipment such as boots, scabbards, mesh protective
equipment, cut-resistant gloves, hard hats, ear plugs, and safety glasses. At the beginning
of each day, employees go to their lockers to retrieve and put on such items and to
retrieve their knives, hooks, and steels. (All Plaintiffs have wielded knives in their JBS
jobs.) They then proceed to the production floor. Plaintiffs, depending on their job
duties, obtain frocks, cotton and cut-resistant gloves, and scrubs from supply windows
and sanitize their boots, hands, knives, hooks, and mesh gloves. Knife-wielding
employees may sharpen their knives in the knife room.
When they leave the production line at the end of the shift, employees remove
their equipment and sanitary clothing. They return their frocks, cotton and cut-resistant
gloves, and scrubs to their designated areas. They wash their personal protective and
sanitary equipment at wash stations and then sanitize it in special tanks. Id. They must
also sanitize their hands and boots before walking to the locker room to store clothing
and equipment.
7
Employees perform similar tasks at the beginning and end of their meal break.
They remove their equipment and sanitary clothing, except for their hard hats, hair nets,
beard nets, ear plugs, and safety glasses. They walk to a wash station to wash their boots
and sanitize their hands and boots. Fabrication employees also turn in their cotton
gloves. Before returning to the lines, employees must sanitize their boots and hands and
put back on what they had removed.
Under a timekeeping practice known as gang time (also sometimes referred to as
line time or master time) employees are paid from the time the first product arrives on the
production line until the last product leaves the line. A supervisor and a union
representative track the time. No one records activities employees perform off the
production line at the beginning and end of the shift and during the meal break, so
employees are free to socialize and loiter.
In 2000, in an effort to compensate employees for some of the unmeasured
activities, JBS and the Union each hired an industrial engineer to calculate the time
needed to don and doff safety clothing and equipment at the beginning and end of the
shift and at meal time, and, at the end of the shift, walk to the wash area to clean safety
clothing and equipment, wait at the wash area, and wash safety equipment. These studies
did not account for increased walk times caused by waiting, obstructions, and congestion.
JBS and the Union agreed to incorporate the measured times for the tasks, called plug
times, into their 2000 agreement as compensable time. The agreement did not, however,
account for walk time from the wash area to the locker room at the end of the day or any
walk time at the beginning of the day. The time devoted to activities compensated by
8
plug times are not measured each day for each employee. Rather, the employee is
compensated by “plugging in” the precalculated time for the employee (depending on the
employee’s specific job)—that is, adding it to the measured amount of work time.
The parties later incorporated the 2000 plug times into their collective-bargaining
agreement that was effective from 2004 through 2009. In 2007 the Union and JBS again
engaged industrial engineers to measure the time it took employees to complete various
tasks. This time JBS’s engineer used a process called Ease Works that measured the
various movements it took to complete a task. For instance, when measuring how long it
would take to put on a mesh apron the engineer would add together the times it took to
reach out, grab the mesh, lift the mesh, etc. To identify the various components of each
task, the engineer observed videos of employees performing the tasks. The Union’s
engineer, however, again calculated times by measuring how long it took employees to
complete the tasks on the production floor. During their 2007 studies the engineers also
measured how long it took for employees to walk from the center of the locker room to
the center of the production floor.
JBS and the Union reached an agreement in 2010 to continue to compensate
employees as provided in the 2000 agreement but negotiated additional plug time to
account for pre- and post-shift walking between the locker room and the production floor
by using for all employees the distance between the center of the locker room and the
center of the production floor. Neither party has pointed us to the calculations underlying
the 2010 plug-time payments and they do not appear to be in the record. As part of this
negotiated agreement, JBS agreed to pay current employees the additional time
9
retroactively for the preceding two-year period of November 2007 to November 2009.
Those no longer employed were not paid retroactive walk time.
C. The Litigation
Before the 2010 agreement, on August 27, 2008, Plaintiffs filed the present
putative collective action against JBS under the FLSA. In an FLSA collective action an
aggrieved employee can bring a claim against an employer on behalf of himself “and
other employees similarly situated.” 29 U.S.C. § 216(b). To become a party, an
employee must opt in by “giv[ing] his consent in writing.” Id.; see Hoffmann-La Roche
Inc. v. Sperling, 493 U.S. 165, 173 (1989).
Plaintiffs’ complaint contended that they had not been adequately compensated for
pre- and post-shift “time spent donning and doffing clothing and protective gear, washing
[equipment and themselves], and walking to and from their job posts,” Aplt. App. I at
117. They also sought compensation for their entire meal break on the ground that it was
not a bona fide meal break, or at least for their time donning, doffing, washing, and
walking at the beginning and the end of meal breaks. They requested damages for
uncompensated work going back two or three years before they filed their complaint in
2008. (Undercompensated employees ordinarily must bring a claim to recover unpaid
wages within two years of accrual of the claim. See 29 U.S.C. § 255(a). But if the
employer willfully violated the FLSA, the limitations period is extended to three years.
See id.)
The district court granted partial summary judgment to JBS, ruling that Plaintiffs’
claim for pre- and post-shift changing of clothes was noncompensable under 29 U.S.C. §
10203(o) because it was covered by the collective-bargaining agreement. The parties
proceeded to a two-phase bench trial on Plaintiffs’ claims that they were not reasonably
compensated for (1) pre- and post-shift waiting, walking, and transporting tools; and (2)
mealtime walking, transporting, waiting, washing, and donning and doffing.
In the first phase of the bench trial the parties agreed to limit their evidence to
liability issues. Based on video evidence of plant operations, the district court found that
there were “substantial amounts of time required in walking from the locker rooms to the
assigned positions on the lines and waiting because of congestion in their areas before the
beginning and ending of the work performed on the lines.” Aplt. Add. at 9–10 (First
Order – Doc. 166). The court also found that JBS “has not provided a full 30 minute
meal break and the minimal amounts of plug times for donning and doffing during the
break do not satisfy the obligation imposed by the statute and the regulation.” Id. at 13.
It noted that “[t]he questions relevant to remedy may require a determination of the
reasonableness of the plug times based on the 2007 measurements,” and “[a]n appropriate
remedy for the failure to provide a bon[a] fide 30 minute meal break must be
determined.” Id. at 13–14.
During the second phase of the bench trial, the court considered the parties’ expert
testimony and reports on the reasonableness of the plug times paid to employees.
Plaintiffs presented the opinions of Dr. Robert G. Radwin to support their position that
the plug times did not reasonably compensate them. He relied primarily on videos of
plant operations that included two full daily shifts. To obtain his time measurements, he
used a video-analysis software program to calculate the time that employees actually
11
spent on various activities. Comparing his measurements to the pre-2010 plug times, Dr.
Radwin concluded that JBS owed Plaintiffs from 1.7 to 14.6 minutes per day beyond the
plug times for work on different shifts on different production lines.
JBS countered with the testimony and report of Dr. Paul S. Adams. Dr. Adams
relied on the same videos and evidence as Dr. Radwin, but he used a different method to
calculate the times. He broke the relevant activities into elements that corresponded to
articles—that is, single items of clothing or personal equipment. The element times were
then added to develop estimates for the full set of articles worn by various workers. He
excluded avoidable delays, such as personal phone use or socializing. Ultimately, his
walk times were very similar to the walk times JBS began paying in 2010. For instance,
he concluded that the pre- and post-shift walk time for slaughter employees was 1.46
minutes, compared to the plug time of 1.43 minutes, and that pre- and post-shift walk
time for fabrication employees was 3.25 minutes, compared to the 3.21-minute plug time.
Some of his remaining measurements were greater than the plug times under the
collective-bargaining agreements, and some were less; but overall his times were slightly
longer.
Dr. Adams also challenged Dr. Radwin’s videos (and, implicitly, Dr. Adams’s
own calculations based on that evidence). He noted that “[t]he video[s] . . . were
apparently taken for demonstrative purposes and were not taken to facilitate time study”;
“[t]he poor camera angles and lines of sight in the supplied videos prevented the proper
capture of many beginning and ending points”; “[t]he obtrusive camera crew was
obviously noticed by many subjects and their behaviors were affected”; and “[m]any
12
activity areas were not included in the videos.” Id. at 1883–84 (Report of Dr. Adams at
7–8). One consequence was that there were “insufficient sample sizes for a scientific
study.” Id. at 1884. In addition, Dr. Adams expressed numerous criticisms of Dr.
Radwin’s use of the videos. He complained that Dr. Radwin measured the time
employees chose to take to complete an activity rather than the time the employee was
actively engaged in the activity; did not follow established scientific methodology for
time studies; failed to account for differences among workers in what personal protective
equipment they wore; failed to account for workers who did not wait in line; assigned
times to employees who did not actually perform the activity assigned; and used a walk-
time methodology that “resulted in double counting and inflated values due to improper
geographical weighting of calculated times.” Id. at 1893 (Report of Dr. Adams at 17).
After considering the expert testimony and reports, the district court rejected Dr.
Radwin’s opinions and concluded that Plaintiffs had failed to meet their burden of
proving that the plug times did not reasonably compensate them for work time not
included in the gang time. The district court also rejected Plaintiffs’ claim that the entire
meal period was compensable. It said that it had incorrectly assumed in its first order that
a 30-minute meal break was required under the FLSA. On reconsideration, it concluded
that the predominant benefit of the meal break was for the employees because the
“predominant purpose of the 30 minute break is to provide an opportunity to eat and the
company provides cafeteria services for that purpose.” Aplt. Add. at 20 (Final Order –
Doc. 231). To the extent that Plaintiffs were entitled to compensation for work
performed during the meal break, it ruled that they had not shown that the work time
13
exceeded the plug time they had been accorded in the collective-bargaining agreement.
The court entered judgment in favor of JBS and dismissed the case.
Plaintiffs’ briefs are not clear about what specific relief they are seeking on appeal.
As best we can understand: (1) they are seeking walk time before and after their
production-line shifts to the extent it has not been properly compensated by plug times
paid by JBS; and (2) although they are no longer contending that the meal break is not a
bona fide meal period, they do seek payment for the time during their break engaged in
walking, washing, donning, and doffing not properly compensated by plug times. We
reject Plaintiffs’ arguments. We therefore need not address JBS’s alternative grounds for
affirmance—that it acted in good faith (which can excuse noncompliance with the FLSA,
see 29 U.S.C. § 259), and that Plaintiffs failed to present testimony representative of all
the various types of employees included as Plaintiffs, see Reich v. S. Md. Hosp., 43 F.3d
949, 951–52 (4th Cir. 1995). We note, however, that those alternative grounds for
affirmance were not properly raised as a cross-appeal; an answer brief is the proper
vehicle to raise arguments that do not seek greater relief than that afforded by the district-
court judgment. See Jennings v. Stephens, 135 S. Ct. 793, 798 (2015); United States v.
Madrid, 633 F.3d 1222, 1225 (10th Cir. 2011) (“The office of a cross-appeal is to give
the appellee more than it obtained by the lower-court judgment.”)
II. ANALYSIS
“When a party appeals from a bench trial, we review the district court’s factual
findings for clear error and its legal conclusions de novo.” Gallardo v. United States,
752 F.3d 865, 870 (10th Cir. 2014). “If the district court’s account of the evidence is
14
plausible in light of the record viewed in its entirety, [we] may not reverse it even though
convinced that had [we] been sitting as the trier of fact, [we] would have weighed the
evidence differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74
(1985).
A. Issues Decided Summarily
We begin by quickly disposing of several of Plaintiffs’ arguments on appeal.
First, they complain that the district court did not impose the relief required by its initial
decision after the liability stage of the trial. But that decision did not bind the court. It
was an interlocutory decision, which the court could revise at any time before final
judgment. See Rimbert v. Eli Lilly and Co., 647 F.3d 1247, 1251 (10th Cir. 2011). The
court recognized that it had changed its mind on some matters. The opinion after the
second stage of trial states: “It must be admitted that the result now reached is contrary
to the expectations generated by the previous Order. It is, however, the result of careful
reflection on the evidence in this case and the court opinions cited above.” Final Order at
10. We review only that second opinion, not the one superseded by it.
Second, Plaintiffs complain that the district court’s findings of fact and
conclusions of law do not satisfy Fed. R. Civ. P. 52(a), which governs findings and
conclusions. But a court’s findings and conclusions are satisfactory if they enable the
appellate court to conduct a proper review of the decision below. See OCI Wyo., L.P. v.
PacifiCorp, 479 F.3d 1199, 1203–04 (10th Cir. 2007). Plaintiffs’ brief fails to explain
how the findings or conclusions in this case fall short on a material issue. Indeed, the
argument on this point in their opening brief is so vague and general that we could
15
properly rule that the issue is waived. See Baca v. Berry, 806 F.3d 1262, 1276 (10th Cir.
2015). In any event, the district court’s findings and conclusions are adequate for our
review.
Third, Plaintiffs argue that the district court improperly found that JBS could
avoid liquidated damages because it acted in good faith. But that issue is moot because
we affirm the decision that JBS did not violate the law in the first place.
That leaves two issues to resolve: the adequacy of compensation (1) for walk
times before and after the employee is engaged on a production line and (2) for meal
breaks.
B. Walk Time at Beginning and End of Shift
In district court Plaintiffs challenged the adequacy of the plug times paid by JBS
for walk time by employees between the locker rooms and the production floors at both
ends of their shifts. The district court rejected the challenge because it refused to credit
the findings by Dr. Radwin, Plaintiffs’ expert on that matter. The court’s rejection was
based largely on the opinion of Dr. Adams, the JBS expert. See Final Order at 8 (“On
balance, this Court accepts the opinions of Dr. Adams.”). Dr. Adams expressed the view
that even using Dr. Radwin’s questionable data, the plug times were reasonably close to,
and sometimes greater than, the times necessary to perform the various activities. The
court concluded that Dr. Radwin’s calculations did “not adequately account for all of the
variations involved” in the time it takes different employees to perform the same activity.
Id. at 21. It noted that “Dr. Radwin’s calculations are based on very limited
information.” Id. And it said: “[Dr. Adams’s] results are markedly different from those
16
of Dr. Radwin. These differences reflect the underlying difficulty in attempting to
determine the realities of the workplace by those methods.” Id. at 8. In our view, the
court’s rejection of Dr. Radwin’s plug times was reasonable; and we note that on appeal
Plaintiffs do not contest the rejection.
That leaves the argument raised by Plaintiffs on appeal, which relies on JBS’s
adoption of the plug times included in the 2010 collective-bargaining agreement for walk
time from the locker room to the production floors before the workers’ shifts and for
walk time from the wash area to the locker room after the shifts. They argue that JBS
essentially conceded in that agreement that those plug times are necessary to comply with
the FLSA. They therefore claim that under their complaint filed in 2008 they can recover
this unpaid work time beginning in 2006 (or 2005 if JBS’s violation of its duty to pay
was willful, see 29 U.S.C. § 255(a)). Some workers have already been paid part of what
Plaintiffs claim because in 2010 JBS agreed with the Union that the additional plug times
would be paid to current employees for work in 2008 and thereafter (but would not be
paid to those no longer employed by JBS in 2010). As a result, Plaintiffs contend that
they all are entitled to back pay beginning in 2006 (or 2005), although those working in
2010 would not receive backpay for work after 2007. The district court refused to order
payment for those times, apparently because Plaintiffs failed to produce credible
supporting evidence of the walk times.
We affirm, but on an alternative ground raised by JBS. We hold that walk times
from the locker rooms to the production floors at the beginning of the shift and from the
wash stands to the locker rooms at the end of the shift were not compensable work before
17
plug times were added for that activity in the 2010 collective-bargaining agreement
between the Union and JBS. Our analysis is as follows: First, under § 203(o), time at the
beginning or end of the workday devoted to changing clothes is not compensable if so
determined under a collective-bargaining agreement. Second, the Supreme Court has
ruled that time spent donning or doffing items that cannot be described as clothing is also
noncompensable under § 203(o) if performed at the same time as the noncompensable
changing of clothes and the period “can, on the whole, be fairly characterized as time
spent in changing clothes . . . .” Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 881 (2014)
(internal quotation marks omitted). In particular, the time would still be noncompensable
even if workers spend a comparatively small part of the time gathering or disposing of
equipment. Third, agreeing with Sandifer v. U.S. Steel Corp., 678 F.3d 590, 595–98 (7th
Cir. 2012), we hold that if time to perform an activity is noncompensable under § 203(o),
then the activity is not a “principal activity” that begins or ends the workday. Therefore,
walk time between the production floor and the locker room, where noncompensable
donning or doffing occurs, is noncompensable under the Portal–to Portal Act. Fourth,
agreeing with then-Judge Sotomayor’s opinion in Singh v. City of New York, 524 F.3d
361, 367–70 (2d Cir. 2008), we hold that travel to the place where the employee performs
a principal activity of the job, which is ordinarily noncompensable under the Portal-to-
Portal Act, does not become compensable just because during that travel the employee
must carry an item necessary for performance of the work if carrying the item adds
negligible time or inconvenience to the travel. Therefore, walk time between the
production floor and the locker room is noncompensable even if an employee must carry
18
equipment on the way. Fifth and finally, because the purpose of § 203(o) is to leave
compensability of certain activities to collective bargaining, see Sandifer, 134 S. Ct. at
876, it follows that if collective bargaining results in providing some compensation for
unmeasured work time, such compensation does not convert any additional otherwise-
noncompensable activities into work time. Therefore, walk time after donning and before
doffing that would otherwise be noncompensable does not become compensable just
because the collective-bargaining agreement provides plug time for some donning or
doffing. We proceed to explain more fully.
We begin with 29 U.S.C. § 203(o). Under that statute, “the compensability of
time spent changing clothes or washing is a subject appropriately committed to collective
bargaining.” Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014). The statute
renders those activities noncompensable if they are “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.” 29 U.S.C. § 203(o)1; see Salazar v.
Butterball, LLC, 644 F.3d 1130, 1135 (10th Cir. 2011).
Moreover, a collective-bargaining agreement can also render noncompensable the
donning and doffing of items that are not clothing as long as that donning and doffing
adds relatively little time to the overall donning or doffing process. This was the holding
1
Section 203(o) states in full: “Hours Worked.--In determining for the purposes of
sections 206 [Minimum wage] and 207 [Maximum hours] 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.”
19
of Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 880–81 (2014). The Court did not reach
its conclusion by applying the de minimis doctrine. It expressed doubt about the de
minimis doctrine in the § 203(o) context, stating that it “does not fit comfortably within
the statute at issue here, which, it can fairly be said, is all about trifles—the relatively
insignificant periods of time in which employees wash up and put on various items of
clothing needed for their jobs.” But the analysis is rather similar to that under the
doctrine. Sandifer concerned employees who sought backpay for their time spent
donning and doffing 12 items of protective gear, which they argued were not clothing
subject to § 203(o). The district court held that the items were all clothes but that even if
three items (hardhats, glasses, and earplugs) were not, the time spent on them was de
minimis. See id. at 874. The Supreme Court affirmed that conclusion, but under
somewhat different reasoning. It agreed that the employees’ time spent donning and
doffing nine of the items qualified as changing clothes under § 203(o). See id. at 879.
And even though the remaining three items were not clothes under § 203(o), the Court
reasoned that on the whole the time could be characterized as changing clothes under §
203(o). See id. at 881 (“The question for courts is whether the period at issue can, on the
whole, be fairly characterized as time spent in changing clothes or washing.” (internal
quotation marks omitted)). “If an employee devotes the vast majority of the time in
question to putting on and off equipment or other non-clothes items . . . the entire period
would not qualify as time spent in changing clothes under § 203(o), even if some clothes
items were donned and doffed as well.” Id. “But if the vast majority of the time is spent
20
in donning and doffing clothes . . . , the entire period qualifies, and the time spent putting
on and off other items need not be subtracted.” Id.
It is unclear to us when the results under the de minimis doctrine and the on-the-
whole test would differ. Perhaps the distinction is that compensation is required for
activities that take only a short period of time if that period is nevertheless comparable to
the time it takes to change clothes; in other words, the test is whether the time is
relatively short, rather than whether it is short on some absolute scale.
Sandifer seems applicable here. JBS and the Union have negotiated over the years
whether compensation (through plug times) should be provided for activities before the
worker arrives at the production line or after the worker departs the production line. Two
of those activities are donning and doffing clothing and equipment in the locker room.
We agree with Plaintiffs that not everything they don and doff can be described as
clothing. But as we understand the district court’s findings at the end of the trial, the
additional time for donning and doffing such nonclothing items is de minimis. Plaintiffs
do not challenge that finding and any challenge would be unsuccessful in any event
because the finding is a reasonable view (perhaps the only reasonable view) of the
evidence. We conclude that the collective-bargaining agreement could therefore exclude
the locker-room activities from compensation under § 203(o) because under Sandifer,
134 S. Ct. at 881, the locker-room time was devoted “on the whole” to changing clothes.
One could nevertheless argue, however, that even though picking up (or returning)
equipment and donning (or doffing) nonclothing items in the locker room are not
compensable, those activities are still “principal activities” that start (and end) the
21
workday, so the walk times between the locker room and the production floor are
compensable. (Recall that under the Portal-to-Portal Act, travel time is not compensated
only if it precedes the first principal activity of the day or follows the last such activity.
See 29 U.S.C. § 254(a).) We reject the argument. Facing the same issue, the Seventh
Circuit explained in Sandifer:
If [clothes-changing time] is not work time—the workers aren’t being paid
and their union has agreed to their not being paid—how can it be one of the
‘principal activities which the employee is employed to perform’? He is
required to wear work clothes, and for that matter he is required to show up
for work. But he is not employed to show up or employed to change
clothes. Not all requirements imposed on employees constitute
employment. An employee may be required to call in when he is sick, but
unless he is on paid sick leave he is not paid for the time it takes to place
the call.
678 F.3d at 596 (internal ellipsis omitted). The court recognized that the Supreme Court
had held in Alvarez, 546 U.S. at 37, that absent a collective-bargaining agreement on the
matter, donning and doffing of work clothes at the workplace could be principal activities
and walking between the locker room (where the donning and doffing occur) and the
work station is not exempted from compensability by the Portal-to-Portal Act. But, said
the court:
Section 203(o) permits the parties to a collective bargaining agreement to
reclassify changing time as nonworking time, and they did so, agreeing that
the workday would not start when the workers changed their clothes; it
would start when they arrived at their work site. If clothes-changing time is
lawfully not compensated, we can’t see how it could be thought a principal
employment activity, and so [the Portal-to-Portal Act] exempts the travel
time in this case.
22
Sandifer, 678 F.3d at 596–97. The Eighth Circuit was persuaded, see Adair v. ConAGRA
Foods, 728 F.3d 849, 852–53 (8th Cir. 2013), and so are we. But see Franklin v.
Kellogg, 619 F.3d 604, 619 (6th Cir. 2010). After all, in enacting § 203(o),
Congress was trying to eliminate the disruptions that the [Supreme] Court’s
interpretation of the Fair Labor Standards Act had caused, and to allow the
determination of what is compensable work in borderline cases (is changing
into work clothes ‘work’? is walking from a locker room to a work station
‘work’?) to be settled by negotiation between labor and management.
Sandifer, 678 F.3d at 597–98; see also id. at 598 (quoting preamble to the Portal-
to-Portal Act in support).
What about the fact that Plaintiffs carried their tools of the trade (knives or hooks)
between the locker room and the production floors? The travel from the locker room to
the production floor (and back) is excluded from FLSA coverage by the Portal-to-Portal
Act unless it follows (or precedes) a principal activity; and we have just held that
Plaintiffs’ locker-room activities are excluded from being principal activities by § 203(o)
and the parties’ collective-bargaining agreement. We do not believe that Plaintiffs’
carrying knives or hooks converts what would otherwise be noncompensable walk time
into compensable walk time. The decision closest in point is the Second Circuit opinion
in Singh, written by then-Judge Sotomayor. The plaintiffs in Singh, city fire-alarm
inspectors, argued that they were entitled to compensation for all or part of their time
spent commuting to and from work because their employer required that they “carry and
keep safe necessary inspection documents during their commutes.” Singh, 524 F.3d
at 364. The Second Circuit rejected their argument. Relying on the Supreme Court’s
holding that whether time is work time depends on whether the “time is spent
23
predominantly for the employer’s benefit or for the employee’s,” Armour & Co. v.
Wantok, 323 U.S. 126, 133 (1944), the court held that the predominant benefit of the
commute was for the employees, not the employer: “Carrying a briefcase during a
commute presents only a minimal burden on the inspectors, permitting them freely to use
their commuting time as they otherwise would have without the briefcase. . . . While the
city certainly benefits from the plaintiffs’ carrying these materials, it cannot be said that
the City is the predominant beneficiary of this time.” Singh, 524 F.3d at 368–69. The
court concluded that “the mere carrying of inspection documents does not transform
plaintiffs’ otherwise non-compensable commute into compensable time.” Id. at 369. It
added that its analysis “in many ways resembles a de minimis test.” Id. It cited the Sixth
Circuit opinion in Aiken v. City of Memphis, 190 F.3d 753, 759 (6th Cir. 1999), which
held that police officers need not be compensated for their commuting time even though
they must monitor their police radios during this travel, “because ‘the amount of work
involved in monitoring a police radio during a commute is simply de minimis.’” Singh,
524 F.3d at 369 (quoting Aiken, 190 F.3d at 759). Then-Judge Sotomayor concluded,
“The point is that, under either approach, when an employee is minimally restricted by an
employer during a commute, such that his or her use of commuting time is materially
unaltered, the commuting time will generally not be compensable under the FLSA.” Id.In the case before us, there is no reason to believe that carrying equipment
increased the walk time to any extent or meaningfully restricted what workers did on
their way to the production floor. In fact, the district court noted that “employees are not
required to move directly from their lockers to the line … [or] to their lockers after
24
leaving the wash area at the end of the shift.” First Order at 10–11. (Stopping to wash
the equipment on the way to the production floor would delay the trip but Plaintiffs are
not challenging on appeal any failure to compensate for the wash time, which apparently
is represented in the plug times.) Under the Singh analysis, the walk time in this case
would not be compensable just because the worker is carrying a knife or hook.
There is one more possible wrinkle in this case. If the collective-bargaining
agreement had totally eliminated compensation to employees for any of the walk time or
clothes-changing time, the above analysis would compel the conclusion that the
employees are not owed any additional compensation under the FLSA. But the
agreement did provide plug times to compensate for clothes-changing time. We therefore
may not be able to apply literally the holding in the Seventh Circuit opinion in Sandifer
that noncompensable work activity cannot be “principal activity” that marks the
beginning or end of the workday. See 678 F.3d at 596–97.2 Nevertheless, the
proposition on which the reasoning in Sandifer was founded is that § 203(o) was enacted
to leave to collective bargaining whether certain activities at the beginning and end of the
workday off the production line should be compensated. It would make no sense to leave
to collective bargaining whether there should be compensation for such activities but not
2
Section 203(o) excludes from employment hours the time “excluded from measured
working time” by the collective-bargaining agreement. We assume, without
deciding, that plug times are “measured working time” that has been adopted, not
excluded, by the collective-bargaining agreement, even though they are not measured
during the work day (the plug time added to the worker’s time is based on one-time
calculations incorporated in the collective-bargaining agreement). If plug times are
not considered “measured working time,” however, then the activity covered by plug
times is “excluded from measured working time,” and this case is identical to
Sandifer in this respect.
25
how such activities are to be compensated. What possible policy rationale would require
the negotiating parties to be limited to an all-or-nothing regime—either providing for no
compensation for the activities or fully compensating all of them? We therefore give
§ 203(o) the commonsense reading that it leaves to collective bargaining the extent to
which employees will be compensated for activities that could be rendered totally
noncompensable through that provision.
Applying this analysis to Plaintiffs’ claims, we conclude that (1) all the walk time
for which they seek back pay could have been rendered noncompensable by the
collective-bargaining agreement (through § 203(o)), and (2) therefore they were entitled
only to compensation for walk time provided through the plug times in the collective-
bargaining agreements in effect during the time at issue. We affirm the district court’s
denial of the walk-time claims because Plaintiffs are seeking greater compensation than
provided in the collective-bargaining agreements.
C. Meal Break
Plaintiffs’ final issue requires less discussion. They claim that they have been
inadequately compensated for time spent donning, doffing, cleaning, and walking during
their 30-minute meal break. Under 29 C.F.R. § 785.19(a), bona fide meal periods are not
considered work time and are not compensable. A bona fide meal period is “[o]rdinarily
30 minutes,” but “[a] shorter period may be long enough under special conditions.” Id.For a break to qualify as a bona fide meal period, “[t]he employee must be completely
relieved from duty for the purposes of eating regular meals,” and “[t]he employee is not
26
relieved if he is required to perform any duties, whether active or inactive, while eating.”
Id.Most courts, however, apply the predominant-benefit test to determine whether a
meal period is bona fide. See, e.g., Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58,
65 (2d Cir. 1997) (The “predominant benefit standard sensibly integrates developing case
law with the regulations’ language and purpose, and more importantly, with the language
of the FLSA itself.” (citation and internal quotation marks omitted)); Babcock v. Butler
Cty., 806 F.3d 153, 156 (3d Cir. 2015); Roy v. Cty. of Lexington, S.C., 141 F.3d 533, 545
(4th Cir. 1998); Hartsell v. Dr. Pepper Bottling Co. of Tex., 207 F.3d 269, 274 (5th Cir.
2000); Ruffin v. MotorCity Casino, 775 F.3d 807, 811 (6th Cir. 2015); Leahy v. City of
Chi., Ill., 96 F.3d 228, 230 n.2 (7th Cir. 1996); Guyton v. Tyson Foods, Inc., 767 F.3d
754, 763 (8th Cir. 2014); Beasley v. Hillcrest Med. Ctr., 78 F. App’x 67, 69–70 (10th Cir.
2003). But see Brennan v. Elmer’s Disposal Serv., Inc., 510 F.2d 84, 88 (9th Cir. 1975)
(applying a completely-relieved-from-duty test under which “[a]n employee cannot be
docked for lunch breaks during which he is required to continue with any duties related to
his work” (emphasis added)). “The predominant benefit test[ ] asks whether the
[employee] is primarily engaged in work-related duties during meal periods.” Babcock,
806 F.3d at 156 (internal quotation marks omitted). If so, the employer must compensate
the employee for the entire meal period. See Ruffin, 775 F.3d at 811. “But as long as the
employee can pursue his or her mealtime adequately and comfortably, is not engaged in
the performance of any substantial duties, and does not spend time predominantly for the
27
employer’s benefit, the employee is relieved of duty and is not entitled to compensation
under the FLSA.” Id. (internal quotation marks omitted).
On appeal, Plaintiffs do not contest that their meal break was a bona fide meal
break. They challenge only the failure of the district court to compensate them for what
they claim to be work performed during the break—donning, doffing, and walking. They
contend that the district court denied compensation for the contested time on the ground
that the predominant purpose of the meal break was to benefit the employees. If the court
had rejected compensation on that ground, Plaintiffs might have a convincing argument.
But that is not how we read the court’s decision. It discussed the predominant-benefit
test only to resolve whether the meal break was a bona fide meal break. That discussion
was necessary because Plaintiffs had argued (or at least the court thought that they had
argued) that the break was not bona fide so Plaintiffs were entitled to compensation for
all 30 minutes. After finding the meal break to be bona fide, the court examined whether
the plug times for the meal break were adequate to compensate for work time during the
break. It found that Plaintiffs had not met their burden of showing that the plug times for
that period were inadequate. Plaintiffs have not challenged that ruling. And they would
fail if they did.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
28