In the
Supreme Court of the United States
Spring Term, 2013
Docket No. 13-0101
_____________
ERNIE HENSON, et al.,
Petitioners,
v.
GROVER WASTE SOLUTIONS, INC.,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals for the Thirteenth Circuit
BRIEF FOR THE RESPONDENT
Respectfully submitted,
Team # 28
QUESTIONS PRESENTED
I.
Did Grover Waste Solutions violate section 203(o) of the Fair Labor Standards Act by
not compensating employees for donning and doffing, traveling to and from the locker
room, or wash-up time when the Collective Bargaining Agreement was silent and the
activities were not considered part of the continuous workday?
II.
Is Grover Waste Solutions’ social media policy to inform and discipline employees for
improper conduct lawful under sections 7, 8(a)(1), and 8(a)(3) of the National Labor
Relations Act when an employee is discharged for using profane language to
independently and publicly insult his manager?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ......................................................................................................... i
TABLE OF CONTENTS ............................................................................................................. ii
TABLE OF AUTHORITIES ....................................................................................................... v
STATEMENT OF THE CASE ................................................................................................. viii
SUMMARY OF THE ARGUMENT .......................................................................................... 1
ARGUMENT ................................................................................................................................. 2
I. Grover did not violate section 203(o) of the FLSA by not compensating Petitioners
for time spent donning and doffing PPE, walking to and from the locker rooms, and
washing up because the PPE are “clothes” within the meaning of section 203(o), there
was a custom or policy of non-compensation, and compensation is also excluded under
the Portal-to-Portal Act. ........................................................................................................... 2
A. Donning and Doffing PPE is excluded from compensation under section 203(o)
because PPE are “clothes” within the meaning of the statute and are also excluded from
compensation according to custom or policy under a bona fide CBA. .................................. 3
1. The Petitioners’ PPE are “clothes” within the meaning of section 203(o) and are thus
excluded from compensation because the ordinary, contemporary and common meaning
of “clothes” warrants this conclusion. ................................................................................ 3
a. Grover is not required to compensate Petitioners for donning and doffing PPE
because the PPE is standard safety equipment that falls squarely within the definition
of “clothes” in section 203(o). ........................................................................................ 3
b. The term “clothes” should not be construed against Grover, as the Ninth Circuit
Court of Appeals contends, because section 203(o) is not an exemption, it is merely a
definition. ........................................................................................................................ 6
c. The Department of Labor’s advisory opinion should not be given deference
because they are inconsistent and unreliable. ................................................................. 6
2. Under section 203(o), Petitioners’ prolonged acquiescence created a custom or
practice of non-compensation for donning and doffing PPE under a bona fide CBA that is
not barred by the local working conditions provision in the CBA. .................................... 8
a. The prolonged acquiescence of Grover’s employees created a custom or practice
of non-compensation for clothes changing under a bona fide CBA for the purpose of
section 203(o).................................................................................................................. 8
ii
b. The local working conditions provision does not bar Grover’s custom or practice
of non-compensation because the plain language only bars unwritten local working
conditions and both the Union and Grover’s employees were aware of the history of
non-compensation. .......................................................................................................... 9
B. Petitioners are not entitled to payment for time spent donning and doffing PPE,
walking to and from the locker room, or washing up because these activities do not fall
under the continuous workday rule. ...................................................................................... 10
1. Petitioners are not entitled to compensation for time spent donning and doffing PPE,
because such activity is not integral and indispensable to a principal activity. ................ 11
2. Petitioners are not entitled to compensation for time spent walking to and from the
locker room or washing up because these activities are not integral and indispensable to a
principal activity. .............................................................................................................. 15
3. Even if the activities of donning and doffing PPE, walking to and from the locker
room, or washing up are integral and indispensable to a principal activity, Petitioners are
still not entitled to compensation because said activities are de minimis. ........................ 16
II. Grover’s utilization of a social media policy is an appropriate constraint on
Petitioners’ rights because it attempts to promote a civil and decent workplace;
therefore, the social media policy is lawful under sections 7, 8(a)(1), and 8(a)(3) of the
National Labor Relations Act. ............................................................................................... 17
A. Grover’s social media policy is an appropriate constraint of Petitioners’ social media
rights under the National Labor Relations Act because it is not overbroad. ........................ 18
1. Grover’s social media is lawful because an employee would reasonably view the
policy as an attempt to maintain order and civility. .......................................................... 19
2. Grover can lawfully maintain a rule that prevents employees from engaging in
egregious conduct. ............................................................................................................ 20
B. Ernie Henson’s actions were not concerted activity because they were individual
activity consisting of mere griping and were unsupported by employees of Grover. .......... 21
1. Ernie Henson’s post was not concerted activity because it was individual action that
consisted of mere griping. ................................................................................................. 22
2. Ernie Henson’s actions were for his own personal satisfaction and were not for the
mutual aid or protection of employees because there was no nexus between the post and a
legitimate employment concern. ....................................................................................... 23
iii
C. Even if this Court determines that Mr. Henson’s post was concerted activity this action
was opprobrious; therefore, it is not protected under the NLRA. ......................................... 25
1. Mr. Henson’s post was opprobrious because it occurred on a social media page that
could potentially be visible to other employees; therefore, it should lose protection under
the NLRA. ......................................................................................................................... 25
2. Mr. Henson’s post was opprobrious and loses protection under the NLRA because if
focused directly on his personal dislike of Mr. Byrd. ....................................................... 27
3. Mr. Henson’s social media post was opprobrious and should lose protection under
the NLRA because it contained offensive and derogatory language. ............................... 28
4. Mr. Henson’s post was opprobrious and is not entitled to NRLA protection because it
was impulsive and was not provoked by unlawful labor practices. .................................. 29
CONCLUSION ........................................................................................................................... 30
iv
TABLE OF AUTHORITIES
Cases
Adtranz ABB Daimler-Benz Transp., N.A. Inc. v. N.L.R.B.,
253 F.3d 19 (D.C. Cir. 2001) .............................................................................................. 19, 20
Allen v. McWane, Inc.,
593 F.3d 449 (5th Cir. 2010) ...................................................................................................... 8
Alvarez v. IBP, Inc.,
339 F.3d 894 (9th Cir. 2003) ...................................................................................................... 6
Am. Tobacco Co. v. Patterson,
456 U.S. 63 (1982) ...................................................................................................................... 3
Anderson v. Cagle's, Inc.,
488 F.3d 945 (11th Cir. 2007) .................................................................................................... 6
Anderson v. Mount Clemens Pottery Co.,
328 U.S. 680 ......................................................................................................................... 2, 11
Atl. Steel Co.,
245 N.L.R.B. 814 (1979) ................................................................................................... passim
Beverly Health & Rehab. Servs.,
332 N.L.R.B. 347 (2000) .......................................................................................................... 21
Costco Wholesale Corp.,
358 N.L.R.B. 1 (2012) ........................................................................................................ 18, 19
Daly Park Nursing Home,
287 N.L.R.B. 710 (1987) .......................................................................................................... 24
Datwyler Rubber and Plastics, Inc.,
350 N.L.R.B. 669 (2007) ................................................................................................... passim
Franklin v. Kellogg Co.,
619 F.3d 604 (6th Cir. 2010) ........................................................................................ 4, 7, 9, 10
Gorman v. Consol. Edison Corp.,
488 F.3d 586 (2d Cir. 2007)............................................................................................... passim
Henson v. Grover Waste Solutions, Inc.,
185 F.3d 26 (13th Cir. 2012) ...................................................................................................... 7
Holling Press, Inc.,
343 N.L.R.B. 301 (2004) .......................................................................................................... 23
IBP, Inc. v. Alvarez,
546 U.S. 21 (2005) ........................................................................................................ 11, 12, 15
Kiewit Power Constructors Co. v. N.L.R.B.,
652 F.3d 22 (D.C. Cir. 2011) ........................................................................................ 25, 26, 28
Lafayette Park Hotel,
326 N.L.R.B. 824 (1998) .......................................................................................................... 18
Levlas v. Pacific Maritime Ass'n,
760 F. Supp. 2d 1036 (W.D. Wash. 2011) ................................................................................ 15
Martin Luther Mem'l Home, Inc.,
343 N.L.R.B. 646 (2004) .............................................................................................. 18, 19, 20
Meyers Indus. (Meyers II),
281 N.L.R.B. 882 (1986) .................................................................................................... 18, 23
v
Meyers Indus.,
268 N.L.R.B. 493 (1984) .................................................................................................... 21, 22
Nobel Metal Processing,
346 N.L.R.B. 795 (2006) .......................................................................................................... 26
U.S. Dep’t of Labor, Opinion Letter,
1997 WL 998048 (Dec. 3, 1997)…………………………………….…………………………7
U.S. Dep’t of Labor, Opinion Letter,
2002 WL 33941766 (June 6, 2002) ............................................................................................ 7
U.S. Dep’t of Labor, Opinion Letter,
2010 WL 2468195 (May 14, 2007) ............................................................................................ 7
Overnight Motor Transp. Co. v. Missel,
316 U.S. 572 (1942) .................................................................................................................. 11
Palms Hotel & Casino,
344 N.L.R.B. 1363 (2005) ........................................................................................................ 20
Perez v. Mountaire Farms, Inc.,
650 F.3d 350 (4th Cir. 2011) .............................................................................................. 12, 13
Perrin v. United States,
444 U.S. 37 (1979) ...................................................................................................................... 3
Salazar v. Butterball, LLC,
644 F.3d 1130 (10th Cir. 2011) .................................................................................................. 6
Sandifer v. U.S. Steel Corp.,
678 F.3d 590 (7th Cir. 2012) .............................................................................................. 3, 4, 7
Sepulveda v. Allen Family Foods, Inc.,
591 F.3d 209 (4th Cir. 2009) .................................................................................................. 3, 4
Singh v. City of New York,
524 F.3d 361 n.8 (2d Cir. 2008)................................................................................................ 17
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) .................................................................................................................... 7
Stanford New York, LLC,
344 N.L.R.B. 558 (2005) ................................................................................................... passim
Steiner v. Mitchell,
350 U.S. 247 (1956) ................................................................................................ 11, 12, 13, 16
Tennessee Coal, Iron, & R.R. Co. v. Muscoda Local No. 123,
321 U.S. 590 (1944) .................................................................................................................... 2
Timekeeping Sys. Inc.,
323 N.L.R.B. 244 (1997) .......................................................................................................... 20
Tradesmen Int'l Inc., v. N.L.R.B.,
275 F.3d 1137 (2002) .......................................................................................................... 23, 24
Turner v. City of Philadelphia,
262 F.2d 222 (3d Cir. 2001)........................................................................................................ 7
Statutes
29 U.S.C. § 157 ...................................................................................................................... passim
29 U.S.C. § 158(a)(1) ............................................................................................................. passim
29 U.S.C. § 158(a)(3) .................................................................................................................... 18
29 U.S.C. § 202(a) .......................................................................................................................... 2
29 U.S.C. § 203(o) ................................................................................................................. passim
vi
29 U.S.C. § 254 ......................................................................................................................... 2, 11
29 U.S.C. § 206 ......................................................................................................................... 2, 11
29 U.S.C. § 207 ......................................................................................................................... 2, 11
vii
STATEMENT OF THE CASE
Background
Grover Waste Solutions, Inc. (“Grover”) operates waste treatment facilities in the State of
Wagner. R. at 3. Grover makes polluted wastewater safe for the environment by removing
pollutants and organic matter from the water. Id. Grover’s Worth treatment facility employs
Ernie Henson, Bert Jacobson, and Mr. Elmo Clash (“Petitioners”) as waste treatment specialists
(“WTS”). Id. at 4, 6.
As a WTS, the Petitioners worked with fumes and chemicals, such as chlorine, ammonia,
and lime. Id. at 3-4. Petitioners were compensated $20 per hour plus benefits, and received three
paid break periods, including lunch, each day. Id. During the 40 hour work week, Petitioners
cleaned treatment equipment and used chemicals to test water and sewage. Id. at 3-4. WTS
employees are subjected to some risk. R. at 4. For example, Ms. Gabby Cadabby, another WTS
not a party to this action, was stuck by an insulin needle when she failed to wear her required
protective gloves. Id. at 4 n. 2. Grover required employees to wear personal protective equipment
including gloves, goggles, special clothing, and steel toed boots in order to minimize any health
and safety risks in accordance with Wagner state law. Id. at 4-5.
During a typical day, Petitioners arrived at Grover’s Worth treatment facility, changed
into personal protective equipment (“PPE”) in the locker room, and then walked approximately
five minutes around the corner to the computerized time clocks to “punch in.” Id. at 3, 5;
Appendix A. Petitioners typically took their time and chatted about personal matters in the
hallway before “punching in.” Id. at 5. After their shift, Petitioners “punched out” and again
walked around the corner to the locker room where they were required to change out of the PPE
and shower. Id.; Appendix A.
viii
Petitioners’ union, Local 300-G, American Federation of Waste Treatment Workers
(“Union”), entered into an initial Collective Bargaining Agreement (“CBA”) with Grover in
2003. R. at 3. The CBA includes a Local Working Conditions provision. Id. The CBA has been
re-negotiated every three years, and remains silent as to whether time spent changing clothes is
compensable. Id. The Local Working Conditions provision provides that “no local working
condition shall be established except as it is expressed in writing . . . .” Id. at 3-4. Petitioners and
the Union knew there was a long standing custom and practice at the Worth treatment facility
and other facilities in the state wherein employees were not compensated for donning and
doffing PPE, traveling to and from the locker rooms, or showering after their shifts. Id. This
custom or practice existed long before the first CBA was negotiated in 2003. Id. at 3.
On October 26, 2012, Mr. Henson and Mr. Jacobson were at a bar, when they noticed
that another employee, Mr. Clash was there. R. at 6. The employees briefly discussed their
workday and mentioned not being compensated for the time spent changing clothes. Id. at 6-7.
Mr. Henson then went online to Schmoozer, a social media site, and created a group called
“Who’s got a loser boss?” Id. at 7. Mr. Henson invited twenty people to the online group,
including Mr. Clash and Mr. Jacobson. Id. The post called their boss, Mr. Oscar Byrd, an
incompetent moron and Mr. Henson then stated that his employer would “get a piece of [his]
mind on Monday!” Id.
Mr. Jacobson and Mr. Clash subsequently “liked” the post, while Mr. Clash added that
their “boss is grouchy but he is just doing his job.” Id. The Petitioners briefly discussed the
compensation issue when they met that Saturday to watch football. R. at 7. On Monday, the
Petitioners met with Mr. Byrd about their compensation issues and were told that it was not part
of their CBA agreement, so they would receive no compensation. Id. at 7-8.
ix
On Tuesday, Mr. Byrd discovered the Schmoozer post and called Petitioners to his office.
Id. at 8. After a brief discussion, My Byrd decided to discharge the employees for the social
media post because it was disparaging and embarrassing to Mr. Byrd and Grover. Id. The
Petitioners complained that they did not know of the social media policy, however, Mr. Byrd
informed them that they had previously signed copies of the handbook, containing the rule. Id.
Further, Mr. Jacobson and Mr. Byrd argued that they had no previous disciplinary issues. Id.
Mr. Clash had previously been reprimanded for reporting to work late on three occasions and
horseplay. R. at 8.
Procedural History
After the Petitioners were discharged, they filed a complaint alleging that Grover violated
section 203(o) of the Fair Labor Standards Act (“FLSA”) by refusing to compensate them for
donning and doffing, travel time, and washing up. Id. at 9. Petitioners also alleged that their
discharge was retaliatory under the FLSA. Id. Further, they alleged that Grover violated sections
8(a)(1) and (3) of the National Labor Relations Act (“NLRA”) by discharging them because their
actions were concerted under section 7 of the NLRA. Id.
The United States District Court for the Eastern District of Wagner held that Grover was
required to pay employees for time spent donning and doffing, travel time, and wash up time. Id.
at 25. Further, the district court held that Grover’s social media policy was overbroad and
restricted employees section 7 rights. Id. The Thirteenth Circuit Court of Appeals held that
Grover is not required to compensate Waste Treatment Specialist for changing time, travel to and
from the locker room, or wash up time after work. Id. Also, the Thirteenth Circuit held that
Grover’s social media policy was not overbroad and did not interfere with the employees’
section 7 rights. R. at 2.
x
SUMMARY OF THE ARGUMENT
This Court should affirm the Thirteenth Circuit’s decision that Grover Waste Solutions
(“Grover”) was not required to compensate Petitioners for time spent donning and doffing
personal protective equipment (“PPE”), time spent walking to and from the locker room and time
spent washing up. The acts of donning and doffing PPE are not compensable under section
203(o) of the FSLA because they are “clothes” within the meaning of the statute. Even if the PPE
are not “clothes” within section 203(o), Grover is still not required to compensate Petitioners
because Petitioner’s acquiesced to the custom or practice of non-compensation under the
Collective Bargaining Agreement. The activities are also not compensable because they are
preliminary and postliminary under section 254 of the Fair Labor Standards Act (“FSLA”) and
are not integral and indispensable to the principal activity. Even if said activities were integral
and indispensable, they are still not compensable because they are de minimis.
This Court should also affirm the Thirteenth Circuit’s decision and hold that Grover’s
social media policy is an appropriate constraint under the National Labor Relations Board
(“NLRA”) because the policy is not overbroad. Employers are allowed to create rules to foster a
civil and decent workplace. Egregious conduct can be prohibited without violating the NLRA
because such conduct falls outside of protection under the NLRA.
Further, Ernie Henson engaged in individual activity when he posted insulting remarks
on Schmoozer. The social media post was not concerted because it was not on behalf or on the
authority of any other Grover employees. Mr. Henson’s post contained no nexus to a legitimate
employment concern. Instead, the post was directed at Mr. Henson’s personal dislike of his boss.
Even if this Court finds that this was concerted activity, the nature of the post would cause it to
lose protection under the NLRA because of its offensive and derogatory content.
1
ARGUMENT
I. Grover did not violate section 203(o) of the FLSA by not compensating Petitioners for
time spent donning and doffing PPE, walking to and from the locker rooms, and
washing up because the PPE are “clothes” within the meaning of section 203(o), there
was a custom or policy of non-compensation, and compensation is also excluded under
the Portal-to-Portal Act.
The Fair Labor Standards Act (“FLSA”) was adopted in 1938 and aimed to eliminate
labor conditions detrimental to the maintenance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers. 29 U.S.C. § 202(a). The FLSA also
established minimum wage requirements and set overtime compensation for time worked in
excess of 40 hours per week at one-half times the regular rate for which the employee was
employed. §§ 206(a), 207(a). Essentially, the FLSA guarantees compensation for all work or
employment engaged in by employees covered by the FLSA. Tennessee Coal, Iron, & R.R. Co.
v. Muscoda Local No. 123, 321 U.S. 590, 602-03 (1944). However, not all work-related activities
constitute work or employment that must be compensated. Gorman v. Consol. Edison Corp., 488
F.3d 586, 589 (2d Cir. 2007).
To determine compensable activities, in 1947 this Court held the FLSA required pay for
the time employees spent walking on the employer’s premises before clocking in, and for
donning and doffing work clothes. Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 69193. The Portal-to-Portal Act superseded this Court’s holding in Anderson one year later by
creating two exceptions to the FLSA: (1) walking, riding, or traveling to and from the actual
place of performance of the principal activity . . . and (2) activities which are preliminary to or
postliminary to said principal activity. 29 U.S.C. § 254. In addition to the Portal-to-Portal Act’s
exceptions, section 203(o) also excludes from the definition of “hours worked” any time spent in
changing clothes or washing at the beginning or end of each workday which was excluded . . . by
2
the express terms of or by custom or practice under a bona fide collective bargaining agreement
applicable to the particular employee. § 203(o). According to these exceptions to the FSLA,
Petitioners incorrectly contend that Grover violated the FLSA by failing to compensate them for
time spent donning and doffing PPE, walking to and from the locker room, and washing up.
A. Donning and Doffing PPE is excluded from compensation under section 203(o)
because PPE are “clothes” within the meaning of the statute and are also excluded
from compensation according to custom or policy under a bona fide CBA.
In determining . . . 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 . . . by the express terms of or by custom or practice under a bona fide collective
bargaining agreement applicable to the particular employee. 29 U.S.C. § 203(o).
1. The Petitioners’ PPE are “clothes” within the meaning of section 203(o) and
are thus excluded from compensation because the ordinary, contemporary and
common meaning of “clothes” warrants this conclusion.
As in all cases involving statutory construction, our starting point must be the language
employed by Congress; and unless otherwise defined, words will be interpreted as taking their
ordinary, contemporary, common meaning. Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68
(1982); Perrin v. United States, 444 U.S. 37, 42 (1979).
a. Grover is not required to compensate Petitioners for donning and
doffing PPE because the PPE is standard safety equipment that falls
squarely within the definition of “clothes” in section 203(o).
Webster’s Third New International Dictionary defines “clothes” or “clothing” as:
“covering for the human body or garments in general: all the garments and accessories worn by a
person at any one time.” Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209, 214-15 (4th Cir.
2009). It is also obvious from the language and the subject matter of the statute that Congress
was talking about work clothes, and not “ordinary” or “street clothes” in general. Id. at 215. As
3
Judge Posner has stated, “It would be absurd to exclude all clothes that have a protective
function from section 203(o).” Sandifer v. U.S. Steel Corp., 678 F.3d 590, 594 (7th Cir. 2012).
Section 203(o) makes no distinction between protective and non-protective clothes and embraces
all clothing, including PPE. See Sepulveda, 591 F.3d at 215. Even the Occupational Safety and
Health Administration (“OSHA”) defines PPE as specialized “clothing.” See id.
In Sepulveda, the employees at a poultry processing plant were required to wear steel
toed shoes, smock, plastic apron, safety glasses, ear plugs, bump cap, hair net, rubber gloves,
sleeves, and arm shields. Id. at 212. The employees donned their PPE, walked to the production
area, and returned to the locker room to doff their PPE at the end of the workday. Id. The court in
Sepulveda held that the employees’ PPE fit squarely within the definition of “clothes” because
the items were standard safety equipment. Id. at 216. As such, the court held donning and doffing
such protective gear was not compensable because it constituted “changing clothes” within the
meaning of section 203(o). Id. at 218.
In Franklin, employees at a breakfast food processing plant were required to wear
uniforms, slip resistant shoes, hair nets, beard nets, safety glasses, ear plugs and bump caps.
Franklin v. Kellogg Co., 619 F.3d 604, 608 (6th Cir. 2010). The employees were not paid for the
time it took to change into the work uniform. Id. The court in Franklin reasoned that each of the
required items provided protection for the body, but there was no reason to distinguish between
protective and non-protective clothes. Id. at 614. The court in Franklin held that while there may
be heavier protective equipment that is not clothing under section 203(o), the items at issue were
standard safety equipment that fit squarely within the 203(o) definition of “clothes” and therefore
time spent donning and doffing such equipment was not compensable. Id. at 614-15.
4
The steel worker employees in Sandifer were required to wear flame retardant pants and
jacket, work gloves, metatarsal boots, hard hat, safety glasses, ear plugs, and a snood (that
covered the head and neck). Sandifer, 678 F.3d at 592. The Sandifer court held that time spent
donning and doffing the protective gear in question was not compensable because it would be
absurd to exclude all work clothes that have a protective function from section 203(o). Id. at 594.
Much like the required protective gear in Sepulveda and Franklin, the required PPE for
Grover’s employees included gloves, goggles, special clothing, and steel toed boots. In fact, the
employees in Sepulveda and Franklin were required to wear more protective gear than
Petitioners, including earplugs, sleeves, arm shields, aprons and hair nets. This combination of
protective gear is commonly referenced as standard safety equipment. Like the courts in
Sepulveda and Franklin, which held the standard safety equipment that fit squarely within the
203(o) definition of “clothes,” this Court should also hold the required PPE used by Petitioners
and other Grover employees fits squarely within the definition of “clothes” in section 203(o).
Therefore, this Court should hold that because the PPE falls within section 203(o), time spent
donning and doffing the PPE is not compensable.
The steel workers in Sandifer were required to wear more extensive protective equipment
than Petitioners were. In Sandifer employees were required to wear fire retardant pants and
jacket, hard hats, and a snood; Petitioners were not required to wear this type of extensive
protective equipment. This Court should hold, as the court in Sandifer did, that time spent
donning and doffing the PPE is not compensable because it would be absurd to exclude all work
clothes that have a protective function from section 203(o), especially considering the Sandifer
employees had more extensive protective equipment than Petitioners. Thus, this Court should
hold that time spent donning and doffing the PPE that Grover required its employees, including
5
Petitioners, to wear is not compensable because the PPE fits squarely within the definition of
“clothes” in section 203(o).
b. The term “clothes” should not be construed against Grover, as the
Ninth Circuit Court of Appeals contends, because section 203(o) is not
an exemption, it is merely a definition.
The Ninth Circuit Court of Appeals in Alvarez contended that this Court has required
FLSA exemptions to be construed against the employers who assert them. Alvarez v. IBP, Inc.,
339 F.3d 894, 905 (9th Cir. 2003). In Alvarez, the employees of a meat packing plant were
required to change into specialized protective safety gear. Id. at 898. In construing section 203(o)
against the employer, the court in Alvarez held that time spent putting on PPE was compensable
because “changing clothes” did not include the PPE. Id. at 905.
However, the court in Alvarez was incorrect in construing section 203(o) as an exemption
against the employers. See Salazar v. Butterball, LLC, 644 F.3d 1130, 1138 (10th Cir. 2011);
Anderson v. Cagle’s, Inc., 488 F.3d 945, 957 (11th Cir. 2007). This Court should not construe
section 203(o) as an exemption for four reasons. First, none of the cases Alvarez relied on
discussed section 203, rather they discussed section 213, which is titled “Exemptions.” Id.
Second, if Congress had intended section 203(o) to be an exemption, it would have included it in
the “Exemptions” section, which it did not. Id. Third, section 203(o) removes only particular
discrete activities, while section 213 removes entire classes of employees from FLSA coverage.
Salazar, 644 F.3d at 1138. Finally, section 203(o) does not completely remove the discrete
activities from FLSA coverage; it gives employers and employees the option of removing the
activities through a CBA. Id. Therefore, the court in Alvarez incorrectly interpreted the definition
of “changing clothes” as an exemption and construed section 203(o) against the employer. Id.
c. The Department of Labor’s advisory opinion should not be given
deference because they are inconsistent and unreliable.
6
It is unclear what, if any, deference should be given to the conclusions of administrative
agencies. See Skidmore v. Swift & Co., 323 U.S. 134, 139 (1944). The deference given will
depend upon the validity of the agency’s reasoning and its consistency with earlier and later
pronouncements. Id. at 140; Franklin, 619 F.3d at 613. An interpretation of a relevant provision
that conflicts with the agency’s earlier interpretation is given considerably less deference.
Franklin, 619 F.3d at 614.
Here, the advisory opinions issued by the Wage and Hour Division of the Department of
Labor should not be given deference because they have a long inconsistent history. See id. In
1997, the advisory opinion stated “changing clothes or washing” in section 203(o) does not
include the putting on, taking off, or washing of that protective safety equipment utilized in the
meat packing industry. U.S. Dep’t of Labor, Opinion Letter, 1997 WL 998048 (Dec. 3, 1997)
(emphasis added). Then, in 2002, the advisory opinion changed based upon a reexamination of
the statute and legislative history, and indicated that “changing clothes” in section 203(o) did
apply to the putting on and taking off of the PPE. Opinion Letter, 2002 WL 33941766 (June 6,
2002) (emphasis added). In 2010, the advisory opinion again changed to say section 203(o)
exemption does not extend to protective equipment worn by employees that is required by law,
by the employer, or due to the nature of the job. Opinion Letter, 2010 WL 2468195 (May 14,
2007) (emphasis added). As the Thirteenth Circuit stated, Judge Posner put it best, remarking,
[i]t would be a considerable paradox if before 2001 the plaintiffs would win
because the President was a Democrat, between 2001 and 2009 the defendant
would win because the President was a Republican, and in 2012 the plaintiffs
would win because the President is again a Democrat. That would make a travesty
of the principle of deference to interpretations of statutes by the agencies
responsible for enforcing them . . .
Henson v. Grover Waste Solutions, Inc., 185 F.3d 26, 32 (13th Cir. 2012) (citing Sandifer, 678
F.3d at 599).
7
Therefore, no deference should be given to the Department of Labor’s advisory opinions
because they are historically inconsistent, tend to fluctuate with American politics, and have not
provided the courts with a consistent foundation on which to analyze FLSA claims.
2. Under section 203(o), Petitioners’ prolonged acquiescence created a custom or
practice of non-compensation for donning and doffing PPE under a bona fide
CBA that is not barred by the local working conditions provision in the CBA.
a. The prolonged acquiescence of Grover’s employees created a custom
or practice of non-compensation for clothes changing under a bona
fide CBA for the purpose of section 203(o).
It is a well established principal of labor law that a particular custom or practice can
become an implied term of a labor agreement through a prolonged period of acquiescence.
Turner v. City of Philadelphia, 262 F.2d 222, 226 (3d Cir. 2001).
In Turner, the City of Philadelphia had not compensated corrections officers for the time
it took to change in and out of their uniforms for 30 years. Id. Also, every CBA between the City
and the correction officers union had been silent regarding compensation for uniform changing.
Id. at 225. The court in Turner held that there was a custom or practice of non-compensation
under a bona fide CBA for purposes of section 203(o) because the corrections officers
acquiesced to not being compensated for changing time over a period of 30 years. Id.
Similarly, in McWane, the employees at a piping manufacturing plant had not been
compensated for time spent changing for more than 40 years, and compensation for such time
had never been negotiated in a CBA. Allen v. McWane, Inc., 593 F.3d 449, 457 (5th Cir. 2010).
Importantly, the court held that the parties did not have to explicitly discuss or negotiate
compensation for changing time under a CBA. Id. Instead, the court inferred that the employees
had acquiesced to the policy of non-compensation because the prolonged period of noncompensation created a “custom or practice of non-compensation under the agreement.” Id.
8
Much like the employees in Turner and McWane who were not compensated for clothes
changing for a prolonged period of time, Grover’s employees were also not compensated for
clothes changing for at least 18 years. Also like the CBAs in Turner and McWane, the CBA in
this case was also silent about whether Grover employees would be compensated for clothes
changing time. The Petitioners were also aware that there was a policy, both at Grover and
throughout the industry, of non-compensation for time spent changing clothes. This Court should
hold, like the courts in Turner and McWane, that there is a custom or practice of noncompensation under a bona fide CBA under section 203(o) because Grover’s employees
acquiesced to not being compensated for clothes changing for a prolonged period of time.
Therefore, this Court should hold that Grover’s policy of not compensating employees
for time spent changing clothes is a custom or practice under a bona fide CBA for the purpose of
section 203(o) because Grover’s employees, including Petitioners, have acquiesced to this
custom for a prolonged period of time.
b. The local working conditions provision does not bar Grover’s custom
or practice of non-compensation because the plain language only bars
unwritten local working conditions and both the Union and Grover’s
employees were aware of the history of non-compensation.
Interpretation of a CBA begins with the explicit language of the agreement, and unless
the language is ambiguous, the CBA is limited to the language contained in its four corners.
Franklin, 619 F.3d at 616.
In Franklin, the union was aware of a 19-year history of non-compensation for workers at
a breakfast food processing plant. Id. at 609, 616. The employees were operating under a CBA
that was initiated in 1989 and re-negotiated every three years. Id. at 608. There was also a local
working conditions provision in the CBA that prohibited unwritten custom or practice. Id. at 616.
The court in Franklin held that the local working conditions provision did not prohibit any
9
unwritten custom or practice, just unwritten local working conditions. Id. (emphasis added). The
court also determined the plain meaning of the provision left open the possibility that there may
be unwritten customs or practices that are not local working conditions. Accordingly, the court
held that because the policy existed long before the CBA was created, there was a custom or
practice of non-compensation for changing clothes under a bona fide CBA. Id. at 618.
Like the employees in Franklin, who were not compensated for clothes changing for a
period of 19 years, Grover’s employees have not been compensated for changing time for 18
years. Similar to the union in Franklin being aware of the history of non-compensation, here
Grover’s employees and the Union were also aware of the history of non-compensation for
clothes changing. R. at 3. Also, just as the CBA in Franklin was re-negotiated every three years,
so was the CBA between the Union and Grover. Here, the local working conditions provision
was similar to that in Franklin, and stated, “No local working condition shall be established
except as it is expressed in writing in an agreement . . . .” Id. at 3-4.
This Court should hold, like the court in Franklin did, that the local working conditions
provision in the CBA only prohibited unwritten local working conditions, because the plain
meaning of the provision leaves open the possibility that there may be unwritten customs or
practices that are not local working conditions. Therefore, this Court should hold that because the
Union and Grover’s employees were aware of the history of non-compensation that existed long
before the CBA was created, there is a custom or practice of non-compensation under section
203(o) that is not barred by the local working conditions provision.
B. Petitioners are not entitled to payment for time spent donning and doffing PPE,
walking to and from the locker room, or washing up because these activities do not
fall under the continuous workday rule.
10
As stated in the Presidential message that initiated the FLSA, the FLSA entitles a “fair
day’s pay for a fair day’s work.” Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578
(1942). Under the FLSA, employees are required to pay minimum wage for the first 40 hours of
a workweek and overtime pay for hours worked in excess of 40 hours. 29 U.S.C. §§ 206, 207.
This Court defined the statutory “workweek” to include all time during which an employee is
necessarily required to be on the employer’s premises. See Anderson, 328 U.S. at 690-91.
In 1947, the FLSA was amended by the Portal-to-Portal Act, which eliminated employer
liability for failure to pay minimum wage or overtime for (1) walking, riding, or traveling to and
from the actual place of performance of the principal activity . . . and (2) activities which are
preliminary to or postliminary to said principal activities. 29 U.S.C. § 254. However, if these
activities fall within the “continuous workday,” which includes the period between the
commencement and completion of the principal activities, they are still compensable. See IBP,
Inc. v. Alvarez, 546 U.S. 21 (2005). The term “principal activity” embraces all activities that are
an integral and indispensable part of the principal activities for which [the employees] were
employed. Id.; Steiner v. Mitchell, 350 U.S. 247, 256 (1956). This Court should hold that time
Petitioners spent donning and doffing PPE, walking to and from the locker room, or washing up
are not compensable because they are not integral and indispensable to a principal activity.
1. Petitioners are not entitled to compensation for time spent donning and
doffing PPE, because such activity is not integral and indispensable to a
principal activity.
If an activity is integral and indispensable to a principal activity for which the employee
is employed, then that activity itself is a principal activity. IBP, 546 U.S. at 37. “Integral” is not
synonymous with “indispensable.” Gorman, 488 F.3d at 592. “Integral” means essential to
completeness, while “indispensable” only means necessary. Id. It follows that activities that are
11
“necessary” to a principal activity are not thereby “integral and indispensable.” IBP, 546 U.S. at
40-41. Under the Portal-to-Portal Act, an activity that is not generally compensable but is
integral and indispensable to a principal activity is rendered compensable if it is (1) integral to
the principal activity and (2) done primarily for the employer’s benefit. See Gorman, 488 F.3d at
592; Perez v. Mountaire Farms, Inc., 650 F.3d 350, 365-66 (4th Cir. 2011).
In Steiner, the employees were workers in a battery plant who were required by the
employer and state regulation to don and doff protective clothing and shower at the end of the
work period. Steiner, 350 U.S. at 250. The employees had to work with chemicals, including
lead oxide, lead sulfate, lead peroxide, and sulphuric acid at the battery plant. Id. at 249. It was
almost impossible to keep the toxic lead levels inside the plant within safe limits, which created a
hazardous atmosphere involving the possibility of lead intoxication or lead poisoning. Id. Even
the families of the battery workers were placed in danger if the employees did not change and
shower at the conclusion of the work shift. Id. at 250. The battery plant faced greater insurance
liability if employees did not shower and change. Id. at 251 The safety measures also increased
the efficiency of the battery plant’s operations. Id. This Court in Steiner held that showering and
changing under those specific facts was integral and indispensable to the principal activity of
employment because the safety measures benefited the employer, as evidenced by reduced
insurance liability greater efficiency. Steiner, 350 U.S. at 251, 256. This Court stated that it
would be difficult to find an instance where changing clothes and showering are more clearly
integral and indispensable to the principal activity than occurred in Steiner. Id. at 256.
In Perez, employees at a poultry processing plant were required by the company and by
federal law to wear certain protective gear. Perez, 650 F.3d at 366. The employees were required
to don bump caps, hair nets, gloves, smocks and aprons to prevent food contamination. Id. at
12
366-67. The court in Perez determined that the donning and doffing of protective gear was
integral to their work according to the concerns of safety and sanitation. See id. at 367. The court
also held that the activities primarily benefited the employer by protecting the products from
contamination. Id. Thus, the court in Perez held that the act of donning and doffing protective
gear was compensable and was integral and indispensable to the principal activity because the
activities were both necessary and for the benefit of the employer. Id. at 367-68.
The nuclear power plant employees in Gorman were required to don and doff safety
glasses, steel toed boots, and helmets. Gorman, 488 F.3d at 594. The court in Gorman held that
while these activities may be necessary or indispensable to the principal activity, they were not
integral because the donning and doffing of such generic protective gear is not different from
changing clothes and showering under normal conditions. Id.; Steiner, 350 U.S. at 249. The court
in Gorman also concluded that the toxic substances at the battery plant in Steiner could not be
analogized with the dangers of a nuclear power plant because Steiner entailed such a narrow
interpretation. Gorman, 488 F.3d at 593. Therefore, the Gorman court held that the time spent
donning and doffing protective equipment at the nuclear power plant was not compensable
because while it was “necessary,” it was not integral and indispensable to the principal activity.
Id.
Like the employees in Steiner, here Petitioners were required by Grover to wear PPE,
including gloves, goggles, special clothing, and steel toed boots, and were required to shower at
the end of their shifts to comply with state law. Also like the dangerous chemicals at issue in
Steiner, the Petitioners came into contact with dangerous chemicals while at Grover’s waste
treatment facility. However, unlike the severe risk of lead intoxication or poisoning present in
Steiner, here the record is void of any severe risk posed to Petitioners. In fact, the only actual
13
injury on record was that of Ms. Cadabby, who was stuck with a needle when failing to wear her
work gloves. Also unlike the additional risk posed to employee’s families in Steiner, no such risk
is present here. There is also no indication that the efficiency of Grover’s operations are
increased as a result of Petitioner’s donning and doffing their PPE, which was the case in Steiner.
This Court should not hold as it did in Steiner because Grover’s required safety measures
primarily benefit the Petitioners and do not increase the efficiency of Grover’s operations. Also,
this Court should hold that donning and doffing PPE and showering is not integral and
indispensable to the principal activity because the facts here are not the type required under the
narrow Steiner holding. Thus, this Court should hold that Petitioners cannot be compensated for
donning and doffing PPE because these activities do not primarily benefit Grover, do not fall
under the narrow Steiner holding, and therefore cannot be integral and indispensable to the
principal activities Petitioners were employed for.
Also like the employees in Perez, Petitioners were required to don and doff PPE.
However, unlike the poultry plant employees in Perez, the Petitioners were not required to wear
PPE in order to prevent contamination of the waste treatment facility. Unlike the court in Perez,
which held the act of donning and doffing protective gear was for the benefit of the employer
because it prevented contamination, here this Court should hold that Petitioners’ donning and
doffing PPE was not for the benefit of the employer because it did not prevent contamination.
Therefore, this Court should hold that time Petitioners spent donning and doffing PPE is not
compensable because it could not be integral and indispensable to a principal activity unless it
was for the benefit of the employer.
Like the nuclear power plant employees in Gorman who were required to don and doff
generic protective gear, here the Petitioners were also required to don and doff generic protective
14
gear. Like the court in Gorman held, this Court should also hold that the donning and doffing of
such generic protective gear is not integral and indispensable because it is no different than
changing and showering under normal conditions. Also, this Court should hold, like the court in
Gorman, that just as the dangers of a nuclear power plant could not be analogized with the
dangers of Steiner’s battery plant, here the dangers of a waste treatment facility also cannot be
analogized to the battery plant dangers in Steiner. Accordingly, this Court should hold, as the
court in Gorman did, that while donning and doffing the PPE is “necessary,” it is not “integral”
and cannot be integral and indispensable to a principal activity and therefore is not compensable.
This Court should hold that Petitioners should not be compensated for the activity of
donning and doffing PPE because while it may be necessary, it is not integral. Also, the act of
donning and doffing PPE in this case is not primarily for the benefit of Grover, the employer.
The time Petitioners spent donning and doffing PPE is not compensable because it is not (1)
integral to the principal activity and (2) done primarily for the employer’s benefit.
2. Petitioners are not entitled to compensation for time spent walking to and
from the locker room or washing up because these activities are not integral
and indispensable to a principal activity.
This Court decided in IBP that walking time which occurred after donning PPE and
before doffing PPE at the conclusion of the day was compensable under the continuous workday
rule if the act of donning and doffing was integral and indispensable to a principal activity. See
IBP, 546 U.S. at 30. However, because time Petitioners spent donning and doffing PPE was not
integral and indispensable to the principal activity they were employed for, the time they spent
walking to and from the locker room is also not compensable. See also Levlas v. Pacific
Maritime Ass’n, 760 F. Supp. 2d 1036, 1053 (W.D. Wash. 2011) (explaining that drive time from
dispatch halls to work site was not compensable).
15
In Steiner, this court narrowly held that time spent showering was compensable as
integral and indispensable to producing batteries due to the extreme dangers that resulted from
work in the battery plant. See Steiner, 350 U.S. at 249. However, this Court also noted that under
normal conditions, these activities ordinarily constitute “preliminary” or “postliminary” activities
excluded from compensable work time as contemplated in the [Portal-to-Portal] Act. Id.; see also
Gorman, 488 F.3d at 594 (changing clothes and showering can only be integral and
indispensable when the working environment was toxic or lethal).
Petitioners’ case is distinguishable from Steiner because the circumstances here do not
involve the extreme risks that were present in the battery plant in Steiner. There is no record of
poisoning or illness as a result of work in Grover’s waste treatment facility. Therefore, because
these circumstances are comparatively normal, time Petitioners spent to shower at the end of
their shift is not compensable because it is postliminary.
3. Even if the activities of donning and doffing PPE, walking to and from the
locker room, or washing up are integral and indispensable to a principal
activity, Petitioners are still not entitled to compensation because said
activities are de minimis.
No rigid rule can be applied with mathematical certainty to determine if an activity is de
minimis; instead each claim should be evaluated on a case-by-case basis. Lindow v. United
States, 738 U.S. F.2d 1057, 1062 (9th Cir. 1984). An activity will not be compensable as de
minimis when the aggregate amount of time is insignificant or there is uncertainty of how long of
a period was required for the tasks to be performed. Id. at 1062.
Employees in Lindow were power plant operators who sought overtime compensation of
approximately 15 minutes per day for three years. Id. at 1059. During the time for which
compensation was sought, employees engaged in social conversation. See id. at 1061. There was
uncertainty as to the exact amount of time involved for the activities in question. Id. at 1064. The
16
court in Lindow held that the overtime compensation sought was de minimis because the
aggregate amount of time involved was insignificant and uncertain. Id.
Much like the employees in Lindow, here Petitioners are seeking compensation for
approximately 30 minutes of time per day, for a period of 2-4 years for donning and doffing
PPE, walking to and from the locker room, and washing time. The record also indicates that
Petitioners typically “took their time to chat about personal matters” in the hallway before
clocking in. R. at 5. The record is void of any method used to collect the data regarding time
spend donning, doffing, walking, and washing. This Court should hold, like the court in Lindow,
that time Petitioner’s spent completing the above activities is not compensable because the
amount of time is uncertain, and is therefore de minimis.
Therefore, this Court should hold that the time Petitioners spent donning and doffing
PPE, walking to and from the locker room, and washing up is not compensable because it is de
minimis due to the uncertainty surrounding the exact amount of time in question. It is also
accepted that a de minimis principal activity does not trigger the continuous workday rule. Singh
v. City of New York, 524 F.3d 361, 371 n.8 (2d Cir. 2008). Thus, even if the act of donning and
doffing PPE was determined to be integral and indispensable to a principal activity, because it is
de minimus, any time spent walking to and from the locker room and time spend washing up
would still not be compensable because it would not be part of the continuous workday.
Therefore, this Court should hold that Grover did not violate section 203(o) of the FLSA
because Petitioners’ PPE constitutes “clothes” within the statute, there was a custom or practice
of non-compensation under a bona fide CBA, the Portal-to-Portal Act excludes such
compensation, and the activities for which compensation is sought were de minimis.
II. Grover’s utilization of a social media policy is an appropriate constraint on Petitioners’
rights because it attempts to promote a civil and decent workplace; therefore, the social
17
media policy is lawful under sections 7, 8(a)(1), and 8(a)(3) of the National Labor
Relations Act.
Section 7 of the National Labor Relations Act (“NLRA”) provides that all employees
have the right to engage in “concerted activities for the purpose . . . of mutual aid or protection.”
29 U.S.C. § 157. The NLRA protects these rights in section 8(a)(1) by making it unlawful for an
employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed
in Section 7 of the NLRA.” § 158(a)(1). Further, the NLRA provides that it is unlawful to
discriminate “based on union activity or not engaging in union activity.” § 158(a)(3).
In reviewing violations of section 7, courts first look to determine if the rule is
appropriately constructed to not restrict employees’ rights. See Costco Wholesale Corp., 358
N.L.R.B. 1, 2 (2012). Next, courts look to whether the employees were engaged in concerted
activity for the mutual aid or protection of the employees. See Meyers Indus. (Meyers II), 281
N.L.R.B. 882, 884 (1986). Lastly, courts consider whether the employees’ actions were so
opprobrious as to lose protection under the NLRA. Atl. Steel Co., 245 N.L.R.B. 814, 816 (1979).
A. Grover’s social media policy is an appropriate constraint of Petitioners’ social media
rights under the National Labor Relations Act because it is not overbroad.
The appropriate test is “whether the rule would reasonably tend to chill employees in the
exercise of their Section 7 rights.” Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998) (citation
omitted). A rule will be deemed overbroad if it “explicitly restricts Section 7 rights.” Martin
Luther Mem’l Home, Inc., 343 N.L.R.B. 646 (2004). If there is no explicit restriction, then a
violation can occur “upon a showing of one of the following: (1) employees would reasonably
construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to
union activity; or (3) has been applied to restrict the exercise of section 7 rights.” Id. at 647.
18
Grover’s social media policy does not explicitly mention any section 7 rights. Further,
there is no mention of any union activity or that the rule has been applied to restrict any section 7
rights. Therefore, the proper analysis is under the alternate showing of whether employees would
reasonably view the policy as restricting section 7 activities.
1. Grover’s social media is lawful because an employee would reasonably view
the policy as an attempt to maintain order and civility.
When analyzing a social media policy to determine whether it is appropriate under the
NLRA, courts must analyze the specific rule in context, which requires looking at the entire
social media policy. Costco Wholesale Corp., 358 N.L.R.B. at 3. Maintaining a rule that is
overbroad or has the tendency to chill an employee’s section 7 rights is unlawful. See Martin
Luther, 343 N.L.R.B. 646. However, rules attempting to create a “civil and decent workplace”
are lawful because they do not have a chilling effect on employees’ section 7 rights. Id. (citing
Adtranz ABB Daimler-Benz Transp., N.A. Inc. v. N.L.R.B., 253 F.3d 19, 25 (D.C. Cir. 2001)).
In Martin Luther, the employees challenged an extended health care facility’s employee
handbook rule that prevented employees from using abusive and profane language. Martin
Luther, 343 N.L.R.B. at 652. The N.L.R.B. determined that prohibiting abusive and profane
language is an attempt to promote a civil workplace. Id. Employees were deemed to reasonably
view policies that encouraged a civil and orderly workplace as not infringing on their section 7
rights. Id. In Costco, a retail wholesale store enacted a rule that prevented employees from
making any online statements that “defame any individual or damage any person’s reputation.”
Costco, 385 N.L.R.B. at 2. The social media policy was not accompanied with examples or
language limiting the rule’s application. Id. The N.L.R.B. held that the rule was unlawful
because it was overbroad. Id. at 1.
19
Here, the amendment to the social media policy prohibits conduct that “could be viewed
as malicious, obscene, threatening, humiliating, offensive or intimidating . . . .” Appendix C.
The rule also provides specific examples of conduct that could potentially violate this rule. See
id. Grover’s examples of a violation of the social media policy are based on egregious conduct
and directly focus on harassment, discrimination, and any actions protected by law.
Similar to Martin Luther, Grover’s enacted rule only attempts to create a civil and decent
workplace by prohibiting egregious conduct, which could foster negativity and hostility in the
workplace. Distinguishable from Costco, Grover’s social media policy has language that
specifically limits its application. This limitation provides specific examples of what the social
media policy is prohibiting. The accompanying language assists an employee in formulating
their reasonable view of the restriction. Therefore, Grover’s social media policy is lawful
because it is an appropriate attempt to maintain a civil and decent workplace.
2. Grover can lawfully maintain a rule that prevents employees from engaging in
egregious conduct.
An employer is allowed to prohibit an employee from using “abusive or profane
language.” Martin Luther, 343 N.L.R.B. at 647. Employers are allowed to prohibit actions that
are specific “goals and objectives” that focus on preventing “civil liability under both federal and
state law for failure to maintain a workplace that is free of harassment.” Id. at 655 (discussing
Adtranz, 253 F.3d at 25 (holding a policy preventing abusive language was lawful)). Further, an
employee’s “knowingly false statements are defined as malicious . . .” and are not protected
under the NLRA. Timekeeping Sys. Inc., 323 N.L.R.B. 244 (1997).
In Palms Hotel, the N.L.R.B. upheld a policy that prohibited “conduct which is injurious,
offensive, threatening, intimidating, coercing, or interfering . . . .” Palms Hotel & Casino, 344
N.L.R.B. 1363, 1367 (2005). The N.L.R.B. held that the policy was lawful because an employee
20
would not reasonably view it as restricting section 7 rights. Id. In Beverly Health, the N.L.R.B.
deemed a rule preventing employees from “making false or misleading work-related statements
concerning the company . . .” to be unlawful. Beverly Health & Rehab. Servs., 332 N.L.R.B. 347,
348 (2000). The N.L.R.B. was concerned because the rule contained no references to egregious
or malicious conduct. Id.
Here, the social media policy specifically references egregious conduct. In particular, the
policy references obscene and threatening behavior. Distinguishable from Beverly Health,
Grover’s social media policy does not reference general behavior or conduct. Instead, the policy
directly applies to egregious behavior. Similar to Palms Hotel, Grover’s attempt to prohibit
egregious conduct that is beyond the scope of the rights provided in section 7 is lawful.
Therefore, maintaining a rule that prohibits egregious conduct is lawful under the NLRA because
egregious conduct is outside of the scope of the NLRA.
B. Ernie Henson’s actions were not concerted activity because they were individual
activity consisting of mere griping and were unsupported by employees of Grover.
A violation of section 8(a)(1) requires: (1) concerted activity; (2) that the employer
knows of the concerted activity; (3) the acts were protected by the NLRA; and (4) that the
employee was discharged because of concerted action. See Hispanics United of Buffalo, Inc., 359
N.L.R.B. 1, 2 (2012); see also Meyers Indus., 268 N.L.R.B. 493, 497 (1984). The second and
fourth elements are not contested in this case. Whether the employees’ actions lose protection
under the NLRA will be discussed below.
The NLRA requires concerted activity for the mutual aid or protection of employees
before the NLRA is implicated. 29 U.S.C. § 157. If an activity is concerted, the court must then
determine if the action was for the mutual aid or protection of the employees before there is a
21
NLRA violation. See Meyers Indus., 268 N.L.R.B. at 494. Further, whether an activity is
“concerted” is objectively defined after looking at all of the factual circumstances. Id. at 496.
1. Ernie Henson’s post was not concerted activity because it was individual
action that consisted of mere griping.
Ernie Henson’s post is not concerted activity because it was not done on behalf of other
employees. Activity must be concerted and for mutual aid or protection before a violation of
sections 7 and 8(a)(1) can occur. See id. at 494. Concerted activity requires that an action “be
engaged in with or on the authority of other employees, and not solely by and on behalf of the
employee himself.” Id. at 497. Further, an individual can engage in concerted activities when he
brings forward “group concerns.” Id.
In Hispanics Union, an employee of a domestic violence center made an online post
stating that “we don’t help our clients enough . . . .” Hispanics Union, 359 N.L.R.B. at 2. She
discussed these actions with a co-worker via text message before posting them online. Id.
Employees responded to the online post, thereby starting a discussion about assistance to clients.
Id. The N.L.R.B. held that the discussions were concerted activities because of the prior
discussion about posting the comments online. Id. at 4. In Relco, employees were fired for
having discussions about the discharge of another employee. Relco Locomotives, 358 N.L.R.B.
1, 17 (2012). The employees never specifically discussed aiding the fired employee, but they did
express their concern regarding the incident. Id. The N.L.R.B. held that the discussions were
concerted because there was a joint discussion about the discharge. Id. at 3.
Here, Mr. Henson’s statements were based on a personal gripe regarding his dislike of his
manager. His social media post contained offensive content and did not result in an advancement
of the Petitioners’ claimed purpose. Further, Mr. Henson purposefully decided to invite Mr.
Clash and Mr. Jacobson to view the post, while excluding all other Grover employees.
22
Distinguishable from Hispanics Union, Mr. Henson intentionally avoided allowing co-workers to
see his post instead of encouraging a group discussion like the one that occurred in Hispanics
Union. This lack of discussion demonstrates that the action was not an attempt to prepare for
group action, but an individualized attack on his boss. The employees did engage in subsequent
communications about their employment complaints, but the firing was based on the social
media post, which only consisted of Mr. Henson’s personal thoughts.
Similar to Relco, the employees discussed issues regarding their compensation. However,
Mr. Henson’s post made no mention of these compensation issues and received no support on
Schmoozer, the social media site where the statement was posted. The firing in this case was
based on Mr. Henson’s individual social media post, which contained no mention of the
compensation issue and was not discussed by any other employees on Schmoozer. Therefore,
this Court should hold that Mr. Henson engaged in individual activity because he did not attempt
to encourage group activity.
2. Ernie Henson’s actions were for his own personal satisfaction and were not
for the mutual aid or protection of employees because there was no nexus
between the post and a legitimate employment concern.
Concerted activity alone is insufficient to establish a violation under sections 7 or 8(a)(1).
Courts must also determine that an action is for the mutual aid or protection of the employees
before a violation can occur. See Holling Press, Inc., 343 N.L.R.B. 301, 302 (2004) (discussing
Meyers Indus., 281 N.L.R.B. at 887 (analyzing concerted activities and mutual aid or protection
separately)). An employee’s actions will not be for mutual aid or protection if “it fails in some
manner to relate to ‘legitimate employee concerns about employment-related matters.’ ”
Tradesmen Int’l Inc., v. N.L.R.B., 275 F.3d 1137, 1141 (2002) (citation omitted). Without this
required nexus the employee’s actions are not for mutual aid or protection. Id.
23
In Tradesmen, a prospective employee informed the local building inspector that
Tradesman was operating as a subcontractor without providing the proper bonds. Tradesmen,
275 F.3d at 1139. The prospective employee then attempted to gain employment with
Tradesmen, but was denied because of his attempt to inform the city building inspector of
Tradesmen’s improper actions. Id. at 1140. The D.C. Circuit held that the employee’s actions
were “too attenuated” to be for mutual aid or protection because his actions had no effect on the
employees of Tradesmen, but were based on his own personal decisions. Id.
In Daly Park, an employee was fired for allegedly leaving a patient saturated in urine.
Daly Park Nursing Home, 287 N.L.R.B. 710, 713 (1987). A co-worker complained about the
firing, but also stated she knew the fired employee could not win a case against the nursing
home. Id. at 710. The N.L.R.B. determined that these conversations were not for the mutual aid
or protection of the fired employee, but were mere griping that did not reach the level of
concerted activity because the employees were not going to take action. See id.
Here, Mr. Clash responded to Mr. Henson’s post by calling their boss grouchy, but
insisting that their boss was just doing his job. R. at 6. Mr. Clash then changed the subject by
asking if they were still going to watch football the next day. Id. Similar to Daly Park, Mr.
Henson’s statements were dismissed by another employee, Mr. Clash, in his comment under the
initial post. Mr. Clash did not show any intention to provide mutual aid or protection to Mr.
Henson in any way. Instead, Mr. Clash rebutted the contention that their manager, Mr. Byrd, was
an “incompetent moron” by insisting that their boss was just doing his job. See R. at 7. Further,
the subject matter of the post is too attenuated to classify as mutual aid or protection as required
by section 7 because neither Mr. Henson’s nor Mr. Clash’s post contained any reference to a
legitimate employment concern.
24
Similar to Tradesmen, Mr. Henson’s post had no effect on the mutual aid or protection of
Grover employees because there was no nexus. This is evident by his decision to exclude most of
his co-workers from the post and by the content of the message. The post contained references to
personal gripes with his boss, but none regarding a legitimate employment concern
demonstrating that there was no nexus between the concern and post. The failure to mention,
reference, or even discuss an employment issue demonstrates that Mr. Henson’s post was
griping. This Court should hold that because Mr. Henson’s offensive personal statements were
mere griping, they were “too attenuated” to have a nexus with a legitimate employment concern.
C. Even if this Court determines that Mr. Henson’s post was concerted activity this
action was opprobrious; therefore, it is not protected under the NLRA.
Opprobrious actions will not be covered by the NLRA. See Datwyler Rubber and
Plastics, Inc., 350 N.L.R.B. 669, 670 (2007). If a court determines that an employee was fired
for protected actions, then the court must determine if the actions were opprobrious. Kiewit
Power Constructors Co. v. N.L.R.B., 652 F.3d 22, 27 (D.C. Cir. 2011). To determine whether an
action is opprobrious courts should apply the four-factor test in Atlantic Steel Company. Atl.
Steel, 245 N.L.R.B. at 816. Courts should consider the following factors: (1) the place the
discussion occurred; (2) the “subject matter” of the post; (3) the “nature of the employee’s
outburst” or statement; and (4) “whether the outburst was, in any way, provoked by an
employer’s unfair labor practice.” Datwyler, 350 N.L.R.B. at 670 (citing Atl. Steel, 245 N.L.R.B.
at 816). Courts should carefully weigh each factor when determining whether a statement was
opprobrious. See Atl. Steel, 245 N.L.R.B. at 816.
1. Mr. Henson’s post was opprobrious because it occurred on a social media
page that could potentially be visible to other employees; therefore, it should
lose protection under the NLRA.
25
First, this Court should look to the place the discussion occurred. Datwyler, 350 N.L.R.B.
at 670. Comments that occur during a meeting, with the purpose of discussing employment
issues, weigh in favor of protection. See id. Comments that occur in front of other employees
weigh towards losing protection under the NLRA if they are not during a meeting. See Stanford
New York, LLC, 344 N.L.R.B. 558 (2005). Outburst against supervisors could potentially
undermine “workplace discipline” and “the authority of the supervisor” thereby weighing
towards losing protection under the NLRA. Kiewit, 652 F.3d 22 (discussing the N.L.R.B.’s
discussion of an employee’s outburst).
In Datwyler, an employee had an outburst during an employee meeting. Datwyler, 350
N.L.R.B. at 670. The meeting was being held for the purpose of discussing workplace issues. Id.
The N.L.R.B. held that the location of the outburst weighed in favor of protection because it was
during a meeting to discuss workplace concerns. Id.; see also Nobel Metal Processing, 346
N.L.R.B. 795, 800 (2006) (holding that protection is favored when outburst occurs during a
meeting). In Stanford, the employees “outburst occurred away from his normal working area.”
Stanford, 334 N.L.R.B. at 558. The Stanford employee’s outburst was in the employee
lunchroom, when no other employees were currently present, and the employee attempted to
maintain privacy by closing the lunchroom door. Id. The court held that this weighed in favor of
NLRA protection. Id.
Here, Mr. Henson’s comments occurred on a social media page and were visible for at
least two other Grover employees to read. See R. at 7. Also, Mr. Byrd was able to find the post
demonstrating that other employees could potentially see the outburst. Distinguishable from
Datwyler, Mr. Henson’s outburst did not occur at a meeting regarding employment issues and
did not arise from any informal discussion with management. Mr. Henson did attempt to limit
26
the amount of employees who could see the post, however, social media creates a unique
situation because of the ability of a post to be subsequently viewed by other employees. A post
could potentially last forever on a social media page allowing other employees of Grover to see
the post, which could potentially undermine the authority of Mr. Byrd, the supervisor. Therefore,
the first factor weighs towards losing protection under the NLRA because the post did not stem
from a discussion with management and it was permanently visible to Grover employees.
2. Mr. Henson’s post was opprobrious and loses protection under the NLRA
because if focused directly on his personal dislike of Mr. Byrd.
Second, this Court should analyze the subject matter of the outburst. Datwyler, 350
N.L.R.B at 670. When an outburst is focused on non-employment issues the court should weigh
in favor of losing protection under the NLRA. See Stanford, 344 N.L.R.B. at 559. If an
employee’s outburst does not discuss a legitimate employment concern then it should lose
protection under the NLRA. See Atl. Steel, 245 N.L.R.B. at 817.
In Datwyler, the outburst occurred while the employee and employer were discussing the
terms and conditions of the employment. Datwyler, 350 N.L.R.B. at 670. In Stanford, an
employee was discussing “his desire to be included in the collective bargaining unit . . . .”
Stanford, 344 N.L.R.B. at 559. The court held that the subject matter of the outburst was based
on an assertion of a right under the NLRA and weighed in favor of protection. Id.
Here, Mr. Henson’s statements were not related to an employment concern. Instead, the
subject matter of his post only focused on his dislike of his employer. Mr. Henson called Mr.
Byrd an “incompetent moron.” R. at 7. Further, there were no mentions of employment
concerns. Distinguishable from Datwyler, there were no references to employment matters
during the outburst. Mr. Henson’s outburst focused solely on his disdain for his employer. The
subject matter of Mr. Henson’s post is drastically different from the outburst in Stanford. In
27
Stanford, the post primarily concerned a desire to be part of the collective bargaining unit, while
Mr. Henson’s post only referenced his personal sentiments towards his boss. Stanford, 344
N.L.R.B. at 559. Thus, this Court should find that the subject matter of the post weighs towards
losing protection under the NLRA because Mr. Henson’s post was directly focused on his
personal dislike of his boss; therefore, this outburst was opprobrious.
3. Mr. Henson’s social media post was opprobrious and should lose protection
under the NLRA because it contained offensive and derogatory language.
Next, this Court should look to the nature of the outburst. Atl. Steel, 245 N.L.R.B. at 816.
Outbursts that contain abusive, profane, or offensive language will weigh towards losing
protection under the NLRA. See generally Stanford, 344 N.L.R.B. at 559. Words may be
“sufficiently violative of [shared interest in maintaining workplace order] so as to lose the
protection of the Act.” Kiewit, 652 F.3d at 33. Outbursts that occur outside of an employment
context and without provocation will also weigh towards losing protection under the NLRA. Atl.
Steel, 245 N.L.R.B. at 817.
In Stanford, the employee used offensive and profane language when he called his boss a
“son of a bitch.” Stanford, 344 N.L.R.B. at 559. The N.L.R.B. held that his actions were
offensive and weighed towards losing protection under the NLRA. In Datwyler, the N.L.R.B.
held an employee did not lose protection when he told his boss “he was a devil, [and] that Jesus
Christ would punish him . . . for requiring the 7 day workweek.” Datwyler, 350 N.L.R.B. at 670.
Here, Mr. Henson specifically called his boss an “incompetent moron.” R. at 7. Similar
to Stanford, Mr. Henson’s outburst was offensive and derogatory. Distinguishable from
Datwyler, Mr. Henson’s comments were unprovoked and did not occur during a discussion
regarding a legitimate employment concern. Instead, Mr. Henson’s comments were offensive
and disrespectful towards his boss. Therefore, this Court should hold that the nature of the
28
outburst weighs in favor of losing protection under the NLRA because the comments were
offensive and derogatory.
4. Mr. Henson’s post was opprobrious and is not entitled to NRLA protection
because it was impulsive and was not provoked by unlawful labor practices.
Next, this Court should determine if the employee’s outburst was provoked. Atl. Steel,
245 N.L.R.B. at 816. When an employer’s unfair labor practices do not provoke an employee’s
outburst it will weigh towards losing protection under the NLRA. See Datwyler, 350 N.L.R.B. at
670. Further, when an employee’s outburst is not a “direct and temporally immediate response”
to an employer’s action, then the outburst should also weigh towards losing protection under the
NLRA. Stanford, 344 N.L.R.B. at 559.
In Stanford, during an argument about union activity the employer threatened to
discharge the employee if he joined a union. Id. The N.L.R.B. held that the employee’s outburst
was provoked by the employer’s unlawful threat of discharge. Id. In Datwyler, the employee
was threatened with unlawful discharge after complaining about a seven-day workweek.
Datwyler, 350 N.L.R.B. at 670. The N.L.R.B. held that the action was provoked by an unfair
labor practice and should be granted protection under the NLRA. Id.
Here, Mr. Henson’s actions were not in response to any action by Grover. Mr. Henson
had not engaged in an employment discussion with Mr. Byrd or Grover. Distinguishable from
Stanford, Mr. Henson was not engaged in a discussion of employment matters when the outburst
occurred. However, one may argue that the general discussion with his co-workers sparked the
concern. This is insufficient to establish that the employer’s action provoked the outburst unless
Mr. Henson had a discussion with his employer regarding the employment concern, which he did
not. Therefore, this Court should hold that Mr. Henson’s unprovoked statements weigh towards
losing protection under the NLRA.
29
After weighing each of the factors to determine whether an action is opprobrious, this
Court should hold that Mr. Henson’s actions are not protected under the NLRA. Each of the
above result in Mr. Henson losing protection under the NLRA because his offensive outburst
was visible to Grover employees, made no reference to any legitimate employment concern,
contained offensive language, and was not provoked by any unlawful labor practice.
Therefore, this Court should hold that Grover’s social media policy is lawful because it is
an appropriate constraint that would be reasonably viewed by an employee as an attempt to
promote a civil and decent workplace. Further, Mr. Henson’s actions were individual activity,
not concerted activity, because he did not attempt to induce or create group action. Lastly, Mr.
Henson’s statements were opprobrious because they were offensive and unprovoked.
CONCLUSION
Therefore, Grover Waste Solutions did not violate section 203(o) of the FLSA by not
compensating Petitioners for time spent donning and doffing PPE, walking to and from the
locker rooms, and washing up because the PPE are “clothes” within the meaning of section
203(o), there was a custom or policy of non-compensation under a bona fide CBA, and
compensation is also excluded under the Portal-to-Portal Act. Further, Grover Waste Solutions
maintained an appropriate social media policy because an employee would reasonably view it as
an attempt to maintain a civil and decent workplace. Grover Waste Solutions did not violate
sections 7, 8(a)(1), or 8(a)(3) of the NLRA because the employees were engaged in individual
activity that had no nexus to a legitimate employee concern. Even if this Court determines that
the employees were engaged in concerted activity, Mr. Henson’s actions are still not protected
under the NLRA because they were opprobrious. Thus, this Court should affirm the Thirteenth
Circuit’s and hold that Grover was not in violation of the FLSA or the NLRA.
30