Gomez v. Tyson Foods, Inc. ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3500
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Jose A. Gomez; Juliana Reyes; Juan M. Cruz; Ted McDonald; Cecilia Ortiz;
Mario Cruz, on behalf of themselves and all other similarly situated individuals,
lllllllllllllllllllll Plaintiffs - Appellees,
v.
Tyson Foods, Inc.,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: January 15, 2015
Filed: August 26, 2015
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Before COLLOTON, BEAM, and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
Jose Gomez and five other named plaintiffs brought this suit under the
Nebraska Wage Payment and Collection Act, Neb. Rev. Stat. §§ 48-1228 to 48-1234,
and the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. They sought
overtime and minimum wage payments for certain pre- and post-shift activities while
they were employed by Tyson Foods, Inc. They represent a class of current or former
unionized employees at Tyson’s beef processing facility in Dakota City, Nebraska.
The district court granted summary judgment in favor of the class on all liability
issues, and the parties proceeded to a jury trial to determine the amount of time the
employees spent performing the activities. After the verdict, the court awarded nearly
$5 million in damages. Tyson appeals the class certification, the summary judgment
rulings, and several issues related to the trial and damages award. We conclude that
Tyson is entitled to judgment as a matter of law on both the federal and state claims,
and we therefore reverse the judgment.
I.
Tyson owns and operates a beef processing facility in Dakota City, Nebraska.
Hourly production employees at the Dakota City facility are generally divided into
“slaughter” and “processing” departments. Tyson compensates the employees for
time spent on the actual production line, known as “gang time.” In addition to gang
time, Tyson adds a number of minutes per day, known as “K-code time,” for certain
pre- and post-shift activity. The pre- and post-shift activity includes the donning and
doffing of personal protective equipment and clothing, cleaning and maintaining
equipment and clothing, and walking to and from the production line, lockers, and
wash stations. The extent of the pre- and post-shift activities that employees are
required to perform varies based on their job classification.
The employees at the Dakota City facility are represented by the United Food
& Commercial Workers International Union, Local 222. Throughout the relevant
period, the terms of employment at the facility have been governed by Collective
Bargaining Agreements entered into by Tyson and the union in 1999, 2004, and 2009.
All three agreements contain an identical definition of work time: “Work time will
be computed from the time employees on a position commence their work until the
time worked is stopped at a position, and will be computed to the nearest minute.”
It is not disputed that this definition of work time refers to gang time. The
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agreements also contain an integration clause and an “amendments” clause, which
read:
ENTIRE AGREEMENT. This is the complete agreement providing all
benefits to which any employee may be entitled, and it is expressly
understood and agreed that the Company has no obligation to any
employee or employees other than those specifically provided herein.
* * *
AMENDMENTS. Any modification or supplement to this Agreement
to be effective must be reduced to writing and executed by proper
representatives of each party.
None of the agreements contains a provision for compensation for the pre- and post-
shift activities at issue in this case. Nevertheless, during the relevant period Tyson
has paid four minutes of K-code time per shift to each employee at the Dakota City
facility.
The employees brought suit in 2008 under the Nebraska Wage Payment and
Collection Act, claiming that Tyson failed to pay them adequately for the pre- and
post-shift and break time activities. They also sought to bring a collective action on
behalf of themselves and other employees under the FLSA, 29 U.S.C. § 216(b), for
unpaid overtime wages. The district court certified the Collection Act claim as a class
action under Federal Rule of Civil Procedure 23. In the FLSA collective action, none
of the plaintiffs filed timely consent in writing to become a party, pursuant to
§§ 216(b) and 256, and the district court never certified a collective action. Tyson
and the employees filed cross-motions for summary judgment. Similar to its ruling
two months earlier in Acosta v. Tyson Foods, Inc., No. 8:08CV86, 2012 WL 6552772
(D. Neb. Dec. 14, 2012), the district court denied Tyson’s motion, and granted
summary judgment in favor of the employees on all liability issues.
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The case proceeded to a jury trial on damages to determine the amount of time
the employees spent performing the activities at issue. The jury returned a verdict
finding that employees in the slaughter department spent 5.79 minutes per day on
average performing the pre- and post-shift activities, and employees in the processing
department spent 4.56 minutes per day on average. The district court then awarded
$3,307,191.20 in damages to the class, and ordered Tyson to pay $1,653,595.60 to the
Nebraska State Treasurer for willful nonpayment of wages under Neb. Rev. Stat.
§ 48-1231(2). Tyson appeals, challenging the denial of its motion for summary
judgment and several issues related to the class certification, trial, and damages
award.
II.
Tyson argues first that the district court should have dismissed the named
plaintiffs’ FLSA claims for failure to file timely consents as required by 29 U.S.C.
§ 216(b). As we explained in Acosta v. Tyson Foods, Inc., No. 14-1582, slip op. at
4-6 (8th Cir. Aug. 26, 2015), also filed this date, an employee must file a written
consent within the statute of limitations to proceed as a party plaintiff when a claim
under the FLSA is pleaded as a collective action. See also Harkins v. Riverboat
Services, Inc. 385 F.3d 1099, 1101-02 (7th Cir. 2004). The complaint in this case
was styled as a “Collective Action Complaint.” The employees brought the claims
“on behalf of themselves and other similarly situated individuals.” In their prayer for
relief, the employees asked the court to “permit this action to go forward as a
‘collective action’ pursuant to 29 U.S.C. § 216(b).” The complaint was never
amended to assert an individual action. Despite the pleading, the named plaintiffs
never filed the requisite consents, and never moved for conditional certification of the
collective action. As in Acosta, the district court should have dismissed the FLSA
claims because no named plaintiff filed the required consent to proceed as a party in
the collective action.
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Tyson also contends that the employees failed to make a submissible case on
their claims under the Nebraska Collection Act. The Collection Act creates a cause
of action to recover only those wages that an employer previously agreed to pay,
when all conditions stipulated have been met. Neb. Rev. Stat. § 48-1229(6); see also
Acosta, No. 14-1582, slip op. at 6-9. Tyson argues that it never agreed to pay the
disputed wages in this case.
The terms of employment between Tyson and the employees of its Dakota City
facility were governed by a collective bargaining agreement between Tyson and the
union that represented the employees. The agreement did not specify compensation
for the pre- and post-shift activities at issue. According to an integration clause in the
agreement, it was “expressly understood and agreed that the Company has no
obligation to any employee or employees other than those specifically provided
herein.” This clause establishes a presumption that the contract is complete by itself.
NLRB v. Int’l Bhd. of Elec. Workers, Local Union 16, 425 F.3d 1035, 1040 (7th Cir.
2005). The “amendments” clause, requiring that any modifications be set forth in
writing, precludes any implied terms or non-written modification of the collective
bargaining agreement. Bozetarnik v. Mahland, 195 F.3d 77, 83 (2d Cir. 1999);
Martinsville Nylon Emp. Council v. NLRB, 969 F.2d 1263, 1268 (D.C. Cir. 1992).
Tyson acknowledges that it agreed to pay every employee at the Dakota City
facility for four minutes per shift to compensate for pre- and post-shift activities, but
there is no dispute that the company paid the employees for this amount of time.
There is no evidence of an agreement to pay Dakota City employees for additional
time performing pre- and post-shift activities during the relevant period. The
integration clause disclaimed any additional preexisting obligation, and the sources
cited by the employees as evidence of a separate agreement are insufficient to
establish an agreement to pay the disputed wages. See Acosta, slip op. at 8-11.
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As we explained in Acosta, a claim by the employees that they were entitled to
additional compensation under the FLSA cannot be raised through an action under
the Nebraska Collection Act. Id. at 11; see Freeman v. Central States Health and Life
Co., 515 N.W.2d 131, 135 (Neb. Ct. App. 1994). We therefore conclude that the
employees’ claims under the Collection Act fail as a matter of law. It is unnecessary
to address the remaining issues raised by Tyson on appeal.
The judgment of the district court is reversed, and the case is remanded to the
district court with directions to enter judgment for Tyson.
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