
    Wyman KASSA, Brian Waylund, and Jamie Waylund, Plaintiffs, v. KERRY, INC., d/b/a Kerry Specialty Ingredients, Defendant.
    No. 06-CV-0904 (PJS/JJG).
    United States District Court, D. Minnesota.
    May 8, 2007.
    
      Patricia A. Bloodgood and Susan E. El-lingstad, Lockridge Grindal Ñauen PLLP, Minneapolis, MN; Clayton D. Halunen, Halunen & Associates, Minneapolis, MN; and Michael L. Puklich, Neaton & Puklich, PLLP, for plaintiffs.
    Robert H. Brown, Laner, Muchin, Dom-brow, Becker, Levin & Tominberg, Ltd., Chicago, IL; and Bradley J. Lindeman and John J. McDonald, Jr., Meagher & Geer, PLLP, Minneapolis, MN, for defendant.
   MEMORANDUM OPINION AND ORDER

SCHILTZ, District Judge.

This matter is before the Court on defendant Kerry, Inc.’s objection [Docket No. 38] to Magistrate Judge Jeanne J. Graham’s October 10, 2006 Report and Recommendation (“R & R”) [Docket No. 36]. In her R & R, Judge Graham recommends that Kerry’s motion for summary judgment [Docket No. 12] be denied and plaintiffs’ motions to amend [Docket Nos. 7 & 24] be granted. The Court agrees with Judge Graham’s recommended dispositions and therefore adopts in part her R & R and overrules Kerry’s objection. But because the Court does not entirely agree with the reasoning of the R & R as it relates to Kerry’s summary-judgment motion, the Court writes separately to explain its reasons for denying summary judgment.

I. BACKGROUND

Kerry is a corporation that makes and markets various food products. Kerry has operated a plant in Albert Lea since 2000, when Kerry purchased the plant from Armour, Inc. When it took over the plant, Kerry hired Armour employees, and those employees continued to be represented by Local 160 of the International Brotherhood of Teamsters — the same union that represented the employees when they worked for Armour.

Plaintiffs Wyman Kassa, Brian Way-lund, and Jamie Waylund work for Kerry at its Albert Lea plant. Plaintiffs have sued Kerry for its failure to pay them for the daily donning and doffing of what they call “sanitary and protective safety gear.” PL Mem. Opp. Def. Mot. S.J. at 1 [Docket No. 23]. According to plaintiffs, Kerry’s failure to pay for donning and doffing violates § 7(a)(1) of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(1), and the Minnesota Fair Labor Standards Act’s provisions relating to overtime pay, Minn.Stat. § 177.25 subd.l. Plaintiffs have also asserted various common-law claims against Kerry.

Discovery has not yet begun (although Kerry has filed an appendix [Docket No. 16] that includes excerpts from depositions taken in a different case against it, Matter v. Kerry, Inc., No. 05-CV-0643 (RHK/JJG) (D.Minn.)). Nonetheless, Kerry moves for summary judgment on plaintiffs’ FLSA claims. Kerry argues that under 29 U.S.C. § 203(o)— § 3(o) of the FLSA — Kerry is not required to pay plaintiffs for their donning and doffing time because, based on the undisputed facts, there is a “custom or practice” under the governing collective-bargaining agreement (“CBA”) that such time is not compensa-ble.

II. DISCUSSION

A. Standard of Review and Governing Law

A party is entitled to prevail on a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In considering a motion for summary judgment, a court must assume that the nonmoving party’s evidence is true and draw all justifiable inferences arising from the evidence in that party’s favor. Taylor v. White, 321 F.3d 710, 715 (8th Cir.2003).

The FLSA exempts employers such as Kerry from paying a unionized employee for

any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved ... by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

29 U.S.C. § 203(o). Whether § 203(o) applies in this case depends on the answers to two questions: First, are the items at issue in this case “clothes” under the statute? And second, under the governing CBA, is there a “custom or practice” of nonpayment for the donning and doffing of these “clothes”? Kerry is entitled to summary judgment only if, on this record, both questions must be answered “yes.”

B. What Are “Clothes”?

Plaintiffs ask the Court to deny Kerry’s summary-judgment motion because the items at issue in this case— variously called by plaintiffs “sanitary and protective safety gear,” PI. Mem. Opp. Def. Mot. S.J. at 1, “sanitary and safety gear,” id. at 2, and “personal protective equipment,” id. at 8 — are not “clothes” under § 203(o). Plaintiffs assert that the Ninth Circuit decided this very question in Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir.2003), aff'd, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), and they ask this Court to deny Kerry’s motion based on Alvarez. PI. Mem. Opp. Def. Mot. S.J. at 6-8.

Plaintiffs read too much into Alvarez. Alvarez involved the donning and doffing of a wide variety of items — from hardhats, hair nets, ear plugs, and cotton gloves, to metal-mesh aprons, leggings, and gloves, to plexiglass arm guards and Kevlar gloves. 339 F.3d at 898 n. 2. Alvarez divided these various items into two broad categories: “non-unique protective gear such as hardhats and safety goggles,” id. at 903, on the one hand, and “specialized protective gear,” on the other, id. at 905. Alvarez did not address whether items of non-unique protective gear were “clothes” under § 203(o); instead, Alvarez held that time spent donning and doffing such gear was noncompensable because it was de minimis. 339 F.3d at 904. (After all, it takes mere seconds to put on a hardhat and a pair of safety goggles.) As to specialized protective gear, Alvarez held that, because FLSA exceptions such as § 203(o) must be narrowly construed, items of such gear were not “clothes” within the meaning of § 203(o). 399 F.3d at 905.

Plaintiffs argue that this case involves the kind of specialized protective gear that Alvarez held not to be “clothes” under § 203(o). But Alvarez does not give plaintiffs as much help as they claim, for at least a couple of reasons.

First, Alvarez did not fully describe what gear it considered “non-unique protective gear” as opposed to “specialized protective gear.” It is not clear on which side of the Alvarez line some items may fall. Further, Alvarez used the term “personal protective equipment” interchangeably with the term “specialized protective gear,” id., despite the fact that the former term seems broader than the latter. After all, an item of “protective gear” could be “personal” even if it is not “specialized.”

Second, according to Kerry, plaintiffs are in fact required to wear only hair nets, beard nets, safety glasses, and uniforms consisting of a shirt, pants, and a smock. Def. Mem. Supp. Mot. S.J. at 3; Bailey Deck ¶¶ 4-5 [Docket No. 14], Plaintiffs do not dispute this (though they do point out that the CBA requires employees to wear “safety shoes”). PI. Mem. Opp. Def. Mot. S.J. at 8. Instead, plaintiffs emphasize that both the CBA and Kerry’s plant manager describe the items worn by employees as “personal protective equipment,” id., a term also used in Alvarez, 339 F.3d at 905.

Plaintiffs attach too much significance to labels. Regardless of whether it is labeled “personal protective equipment” or something else, a hair net is still a hair net, pants are still pants, and a smock is still a smock. Whether the items that plaintiffs don and doff are “clothes” under § 203(o) depends on what those items are, not on what they are called by the CBA, by Kerry’s plant manager, or by anyone else.

The Court also rejects plaintiffs’ assertion that other district courts have already determined that the type of hair and beard nets, safety glasses, and uniforms that they must wear qualify as “specialized protective gear” for Alvarez purposes. PL Mem. Opp. Def. Mot. S.J. at 7. In Gonzalez v. Farmington Foods, Inc., the court held that § 203(o) did not apply where the employees donned and doffed a wide range of items, among which specialized gear— including various guards, a hook, a knife holder, and a piece of steel for straightening a knife edge — predominated over clothing. 296 F.Supp.2d 912, 927, 930-31 (N.D.Ill.2003). Similarly, Fox v. Tyson Foods, Inc., involved not only items like those involved in this case, but also, among other things, “protective mesh gloves ... dust masks, plastic sleeve covers, and hard plastic arm guards.” No. CV-99-BE-1612-M, 2002 WL 32987224, at *3, 2001 U.S. Dist. LEXIS 26050 (N.D.Ala. Feb.4, 2002). Fox held, without differentiating among these various items, that § 203(o) did not exempt the employer from paying for donning and doffing time because these items were not “clothes.” 2002 WL 32987224 at *5-7.

Unlike Gonzalez and Fox, this case does not involve a mixture of what Alvarez labeled “non-unique protective gear” and what Alvarez labeled “specialized protective gear.” To the contrary, this case involves only items that Alvarez labeled “non-unique safety gear.” As noted, Alvarez was silent on the question of whether such items should be considered “clothes” under § 203(o), and neither Gonzalez nor Fox establishes that such items are not “clothes.”

The Court agrees with Judge Graham that, based on the undisputed evidence adduced so far, the items at issue in this case — except perhaps the hair nets and the beard nets — are “clothes” under § 203(o). Specifically, based on the word’s ordinary meaning, “clothes” includes pants, shirts, smocks, and boots. And, for people who wear them, glasses are essentially part of their clothing, so standard safety glasses also qualify as “clothes.” (Even if standard safety glasses are not “clothes,” the time that it takes to put on a pair of glasses is de minimis.)

That said, the Court cannot go as far as Judge Graham and suggest that all protective gear is necessarily “clothes” under § 203(o). See R & R at 5-6. To take an example from Alvarez (339 F.3d at 905), this Court would not likely find that an “environmental spaeesuit” (or an actual spacesuit, for that matter) is “clothes” for purposes of § 203(o). The Court does not believe that Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), is to the contrary. In Steiner, the Supreme Court applied § 203(o) to clothes-changing by employees who worked in a chemical plant. To the contemporary mind, a chemical plant conjures up images of “spacesuits” or other specialized protective outerwear. But in Steiner the Court mentioned that the employer provided its employees with work clothes because “the acid causes such rapid deterioration that the clothes sometimes last only a few days.” Id. at 251, 76 S.Ct. 330. This suggests that the clothes at issue in Steiner — clothes that the Court did not describe in any detail— were not, in fact, particularly specialized, and could have been shirts, pants, and other items that would be “clothes” under anyone’s definition of the term. In any case, Steiner did not address the meaning of “clothes” under § 203(o).

The Court believes that whether a particular item of protective gear should be considered “clothes” under § 203(o) depends on the exact nature of the item and the exact circumstances under which it is used. A cloth jumpsuit, for instance, is probably clothing even if worn by a car mechanic as protection from oil and grease; a space suit is probably not clothing, even though it is a kind of protective outfit; and other types of garments and safety equipment will present closer questions. None of the items at issue in this case, however, presents a close question. All of those items are “clothes” for purposes of § 203(c) — or, in the case of hair nets and beard nets, the time devoted to donning the items is de minimis.

C. What Is a “Custom or Practice” Under a CBA?

To prevail on its § 203(o) defense, Kerry must establish not only that the items at issue in this case are “clothes” — which it has done — but also that there is a “custom or practice” under the relevant CBA of not paying for donning and’ doffing those clothes.

Plaintiffs argue that such a “custom or practice” does not exist in this case because the issue of paying for changing clothes has never been raised and abandoned by the union in the course of negotiations with Kerry. PL Mem. Resp. Def. Obj. R & R at 2-5 [Docket No. 44], Judge Graham agreed with plaintiffs. R & R a 6-8. The Court recognizes that, as Judge Graham explained, federal cases could be read to interpret § 203(o) to require that the issue of payment for clothes-changing time have been expressly raised and abandoned in union-management negotiations before a “custom or practice” of nonpayment for such time can be found to exist. The Court does not believe, however, that the ease law requires “custom or practice” under § 203(o) to be defined so narrowly.

To be sure, if the issue of paying for changing clothes is raised and abandoned in the course of union-management negotiations, this will generally be sufficient to establish a “custom or practice” of not paying for such time under a CBA. But it does not follow that the issue must necessarily have been raised and abandoned during CBA negotiations. Rather, the term “custom or practice” is broad enough to capture a long-standing practice by an employer of nonpayment for clothes-changing time — even if the issue of payment for such time has not been raised in union-management negotiations — provided that the employer can demonstrate that the practice of nonpayment was sufficiently long in duration and that its employees knew of and acquiesced in the practice.

This interpretation is consistent with most federal case law on § 203(o). Admittedly, one district court, in an unreported opinion, observed that “[m]ere silence alone cannot confer on a particular practice the status of a ‘custom [or] practice’ ” under § 203(o). Fox, 2002 WL 32987224, at *8. But Fox cited no authority for this proposition, and the Court does not find Fox persuasive.

The Eighth Circuit has yet to address the meaning of “custom or practice” under § 203(o). Cases from other circuit courts of appeal, however, are not contrary to this Court’s position. In one interesting decision — Arcadi v. Nestle Food Corp., 38 F.3d 672 (2d Cir.1994) — the Second Circuit distinguished between “custom” and “practice” under § 203(o). The statute uses the disjunctive — “custom or practice.” Thus, to establish a defense, an employer in Kerry’s position must show either a “custom” or a “practice” of not paying its employees for donning and doffing. According to the Second Circuit, “custom” relates to the past; to determine whether a “custom” exists, a court looks backward for evidence of “an ongoing understanding with some continuity.” Id. at 675. “Practice,” by contrast, can be forward-looking. No matter what has happened in the past, a “practice” can exist if the parties to a CBA “negotiate over an issue and have an understanding that resolves it,” even if the issue is not expressly addressed in the CBA. Id.

Applying this rule, Arcadi held that, under § 203(o), an employer did not have to pay its employees for donning and doffing newly required uniforms where the union had asked, during CBA negotiations, to be paid for that time and then had dropped the demand. Id. Thus under Ar-cadi, raising and later dropping the issue of payment for clothes-changing time is sufficient to create a “practice” under § 203(o). But Arcadi does not say that this is the only way that such a “practice” can be established. Moreover, Arcadi says nothing specific about what is needed to establish a “custom.” Indeed, because raising and dropping an issue in CBA negotiations creates a “practice” under Arca-di, and because Arcadi distinguishes a “custom” from a “practice,” Arcadi at least implies that a “custom” can be created differently than a “practice.” If so, raising and dropping the issue of payment for clothes-changing time in CBA negotiations is not necessary to establish a “custom” of nonpayment for such time under § 203(o).

Other appellate cases have, like Arcadi, involved situations in which the issue of nonpayment for clothes-changing time was raised in union-management negotiations. These cases therefore did not address whether a “custom or practice” might have existed if the issue had not been raised. For example, in Hoover v. Wyandotte Chemicals Corp. (the earliest appellate case on the meaning of “custom or practice” under § 203(o)), the Fifth Circuit was asked to decide whether a “custom or practice” of nonpayment that both sides agreed existed in light of previous CBA negotiations had been terminated when, during later CBA negotiations, the union protested the nonpayment policy. 455 F.2d 387, 388-89 (5th Cir.1972). Hoover held that the history of nonpayment for clothes-changing time, together with the fact that the issue of nonpayment was raised regularly in CBA negotiations, established a “custom or practice” of nonpayment under § 203(o). Id.

More recently, the Fifth Circuit followed both Arcadi and Hoover in Bejil v. Ethicon, Inc., another case in which compensation for clothes-changing time had been raised in CBA negotiations. 269 F.3d 477, 480 (5th Cir.2001). Bejil observed that “where the union and employer discuss an issue, the result may be custom or practice, even if the collective bargaining agreement is silent on the issue.” Id. Because the employer and the union had negotiated over clothes-changing time but did not require that time to be paid under the CBA, Bejil held that a “custom or practice” existed under § 203(o). Id. But again, Bejil said nothing about whether a “custom or practice” could exist under § 203(o) if payment for clothes-changing time had not been discussed during CBA negotiations.

The Third Circuit, however, has expressly, rejected the notion that a “custom or practice” under § 203(o) can arise only if the issue of payment for clothes changing has been raised in formal union-management negotiations. In Turner v. City of Philadelphia, 262 F.3d 222, 226 (3d Cir.2001), the Third Circuit instead endorsed a broader rule, under which a “custom or practice” under § 203(o) can be created “through a prolonged period of acquiescence.” Id.

The precise breadth of Turner’s rule is difficult to gauge because of the ease’s facts. Turner involved a dispute between Philadelphia and its police officers over clothes-changing time. The Third Circuit’s decision to uphold a summary judgment that a “custom or practice” of nonpayment existed under § 203(o) was based on four key facts: (1) for 30 years, Philadelphia had not paid for clothes-changing time; (2) every CBA was silent on the issue; (3) the union president raised the issue during labor-management meetings, though not during formal CBA negotiations; and (4) the union never filed a grievance over the issue. Id. at 225. On its facts, then, Turner is not inconsistent with the rule that a “custom or practice” under § 203(o) exists only if the issue is raised at least informally in union-management negotiations. But Turner did not speak in such narrow terms. Instead, Turner described § 203(o) as “simply restating the well-established principle of labor law that a particular custom or practice can become an implied term of a labor agreement through a prolonged period of acquiescence.” Id. at 226.

The Court believes that Turner’s broad language about the meaning of “custom or practice” under § 203(o) is consistent with the statutory language, Supreme Court case law, and relevant Eighth Circuit law. The Court therefore does not read Turner as requiring that, before a “custom or practice” can be established under § 203(o), nonpayment for clothes-changing time must have been raised in union negotiations (whether formal or informal).

The Supreme Court’s decision in Detroit & Toledo Shore Line R.R. Co. v. United Transportation Union (a ease Turner relied on, 262 F.3d at 226) supports a broad reading of “custom or practice” under § 203(o). 396 U.S. 142, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). Detroit & Toledo involved the scope of § 6 of the Railway Labor Act (RLA), 45 U.S.C. § 156, which forbids employers from unilaterally changing “rates of pay, rules, or working conditions” while certain union-management disputes are pending before the National Mediation Board. 396 U.S. at 146-47, 90 S.Ct. 294. The employer argued that § 6 applied only to “rates of pay, rules, or working conditions” that were expressly contained in a CBA. Id. at 147-48, 90 S.Ct. 294. The Supreme Court disagreed, and held that § 6 applies to “those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.” Id. at 153, 90 S.Ct. 294. To determine whether § 6 covered the particular practice challenged in Detroit & Toledo, the Court looked to whether the practice “had occurred for a sufficient period of time with the knowledge and acquiescence of the employees to become in reality a part of the actual working conditions.” Id. at 154, 90 S.Ct. 294 (emphasis added).

The Eighth Circuit has followed Detroit & Toledo’s approach. In Brotherhood of Maintenance of Way Employees v. Burlington Northern Railroad Co., the court observed that “[w]hen long-standing practice ripens into an established and recognized custom between the parties,” that practice becomes part of the working conditions that § 6 of the RLA protects from unilateral change. 802 F.2d 1016, 1022 (8th Cir.1986). See also Bhd. of Maint. of Way Employees v. Chicago & Nw. Transp. Co., 827 F.2d 330, 334 (8th Cir.1987) (finding no error in district court’s finding under § 6 that a particular rule that was not part of the CBA became, “by virtue of the parties’ longstanding and recognized custom and practice,” an implied term of the CBA). Nothing in Eighth Circuit case law suggests that the “knowledge and acquiescence” required under Detroit & Toledo’s can be demonstrated only through evidence that a particular issue — such as compensation for clothes-changing time— was raised in union-management negotiations.

This Court believes that the three elements identified in Detroit & Toledo’s— time, knowledge, and acquiescence — are essential not only to determining “objective working conditions and practices, broadly conceived” for purposes of § 6 of the RLA, but also to determining the existence of a “custom or practice” for purposes § 203(o) of the FLSA. Accordingly, Kerry bears the burden of establishing that its policy of noncompensation for clothes-changing time lasted for a sufficiently long time, with sufficient knowledge and acquiescence by Kerry’s employees, that the policy became an implicit term — a “custom or practice” — under the CBA. Evidence that an issue was raised in union-management negotiations is one way, but not the only way, to prove knowledge and acquiescence by union employees.

Whether a CBA implicitly contains certain terms is normally a question of fact for the jury. Alton & S. Lodge No. 306 v. Alton & S. Ry. Co., 849 F.2d 1111, 1114 (8th Cir.1988). At this point, the evidence is simply too thin for the Court to find, on motion for summary judgment, that there was a “custom or practice” of nonpayment for clothes-changing time under the CBA. In particular, Kerry has not provided sufficient evidence of its employees’ knowledge of or acquiescence in Kerry’s policy of noncompensation. Kerry notes that Teamsters Local 160 represented plant employees “for many years” before 2000, when Kerry took over the Albert Lea plant. Bailey Decl. ¶ S. But Kerry has not explained the relevance (if any) under § 203(o) of the history of relations between Local 160 and the former owner of the Albert Lea plant. On the issue of whether a “custom or practice” exists between Kerry and its employees, it would seem that events since 2000 are centrally important. But even if past relations between Armour and Local 160 are relevant, Kerry has not provided sufficient information about those past relations to warrant summary judgment.

Furthermore, although (as noted above) evidence that the issue of payment for clothes-changing time was raised in union negotiations may demonstrate the knowledge and acquiescence necessary to establish a “custom or practice” of nonpayment under § 203(o), Kerry has provided no such evidence. Instead, Kerry has provided a declaration stating that there is a “long-standing practice” between Kerry and the union of nonpayment for clothes-changing time and that there is “no evidence” that the union ever raised the issue in CBA negotiations. Holt Decl. ¶ 4 [Docket No. 15]. Kerry has also submitted deposition testimony given in a different case by the president of Local 160, Wayne Perleberg. Perleberg said that union members never raised the issue of payment for clothes-changing time among themselves or with the company, and that the union never filed a grievance over this issue. Dep. Appx. Tab C — Perleberg Dep. at 13-23 [Docket No. 16].

The Court is unprepared to find that Kerry’s six-year history of nonpayment for clothes-changing time, together with evidence that the union never complained about such nonpayment, is sufficient to establish, as a matter of law, a “custom or practice” of nonpayment under § 203(o). Indeed, to the extent that the union members never raised the issue even among themselves, this may suggest that they did not knowingly acquiesce in Kerry’s policy of nonpayment for clothes-changing time. If an employer’s history of nonpayment for clothes-changing time were sufficient, by itself, to establish a “custom or practice” under § 203(o), then § 203(o) would essentially be an unlimited FLSA exemption applicable to every unionized employer that did not pay for clothes-changing time. The Court does not believe that § 203(o) is so sweeping.

The Court expresses no opinion as to whether Kerry will be able to establish its § 203(o) defense at trial (or, conceivably, on a later motion for summary judgment). The Court merely holds that a reasonable jury could conclude that Kerry’s failure to pay plaintiffs for donning and doffing did not reflect a “custom or practice under a bona fide collective-bargaining agreement.” For that reason, Kerry’s motion for summary judgment is denied.

ORDER

Based on the foregoing and on all of the files, records, and proceedings herein, the Court OVERRULES Kerry’s objection [Docket No. 38] and ADOPTS IN PART Judge Graham’s Report and Recommendation [Docket No. 36] to the extent that it is consistent with this Memorandum Opinion and Order. Accordingly, IT IS HEREBY ORDERED THAT:

1. Defendant’s Motion for Summary Judgment [Docket No. 12] is DENIED.

2. Plaintiffs’ motions to amend [Docket Nos. 7 and 24] are GRANTED.

REPORT AND RECOMMENDATION

GRAHAM, United States Magistrate Judge.

The above-entitled matter came before the undersigned for a hearing on September 21, 2006. Defendant Kerry moves for summary judgment (Doc. No. 12). Patricia A. Bloodgood, Esq., and Susan E. El-lingstad, Esq., appeared on behalf of the plaintiffs. Robert H. Brown, Esq., appeared on behalf of defendant Kerry. This motion is assigned to this Court for a report and recommendation in accordance with 28 U.S.C. § 636 and Local Rule 72.1(c).

I. BACKGROUND

The plaintiffs in this litigation bring a collective action under the Pair Labor Standards Act (FLSA) and a class action under the Minnesota Fair Labor Standards Act (MFLSA). They allege that their employer, defendant Kerry, failed to pay compensation for time spent putting on and taking off uniforms and protective gear.

Kerry operates a food processing plant, and for each shift, it provides employees with a clean uniform consisting of pants, a shirt, and a smock. Employees may also be required to wear gloves, hairnets, and safety glasses. The record does not precisely disclose employees’ duties, nor does it indicate what safety concerns require the use of protective gear.

For the entire time Kerry has operated the plant, a union has represented plant employees. During this time, Kerry has never compensated its employees for the time they take to put on and take off their uniforms and protective gear. Neither the union nor its employees have mentioned the issue in a grievance procedure or through negotiations for a collective bargaining agreement (CBA).

Kerry now moves for summary judgment. Relying on § 3(o) of the Fair Labor Standards Act, it contends that time spent putting on and taking off clothing and protective gear is exempt from time worked, in accordance with the parties’ custom and practice under their CBA.

II. DISCUSSION

To prevail on a motion for summary judgment, a party must demonstrate that there are no issues of material fact and that it is entitled to judgment as a matter of law. Meterlogic, Inc. v. KLT, Inc., 368 F.3d 1017, 1018 (8th Cir.2004). No issues of material fact exist where a reasonable juror cannot return a verdict for the non-moving party. Morgan v. United Parcel Serv. of America, Inc., 380 F.3d 459, 463 (8th Cir.2004). Under this standard, all reasonable inferences are taken in favor of the nonmoving party. Singletary v. Missouri Dep’t of Corrections, 423 F.3d 886, 890 (8th Cir.2005). Where a motion for summary judgment is founded on an affirmative defense, the moving party has the burden to present facts that establish that defense. See Ballard v. Rubin, 284 F.3d 957, 964 n. 6 (8th Cir.2002).

A. The Clothing Exemption

The term “hours worked” is defined by § 3(o) of the FLSA. This definition excludes,

any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

29 U.S.C. § 203(o). Kerry argues that, pursuant to their collective bargaining agreement, the parties had a “custom or practice” that employees would not be paid for time spent putting on or taking off clothing and protective gear.

Kassa counters, in part, that the items donned by employees are exclusively “protective gear” and are outside the meaning of “clothing” under § 3(o). Because this argument challenges whether Kerry met the threshold required to invoke the § 3(o) exemption, it is preferable to address this question first.

1. Definition of Clothing Under the Fair Labor Standards Act

In support of this argument, the plaintiffs advance the decision of the Ninth Circuit in Alvarez v. IBP, Inc. 339 F.3d 894 (9th Cir.2003). The court observed that, because the FLSA assures compensation for workers, it serves a remedial purpose. In accordance with this goal, exemptions under the FLSA are narrowly construed against the employer, and a defendant must demonstrate that its actions “plainly and unmistakably” qualify for the exemption. Id. at 904 (citing and indirectly quoting Arnold v. Ben Kanowsky, 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960)).

The Ninth Circuit concluded that, because protective gear served a purpose distinguishable from ordinary clothing, protective gear is outside the definition of clothing under § 3(o). Id. at 905. Although the court did not provide an express standard for determining whether items are protective gear, it described such equipment as “required specialized protective equipment.” See id. The court implied that items such as armored gloves, mesh knife guards, and liquid-repelling outerwear qualified as specialized protective equipment, but non-unique items such as hard hats and goggles did not. See id. at 898 n. 2, 904.

Only one other court has since examined the rule of Alvarez in a published decision, and that court found Alvarez persuasive. See Gonzalez v. Farmington Foods, Inc., 296 F.Supp.2d 912, 930 (N.D.Ill.2003). But when principles of statutory interpretation are consulted, there is reason to doubt the rule.

Although remedial statutes are generally interpreted in a manner consistent with the remedial purpose, this concern cannot overtake the underlying principle that statutes be interpreted in accordance with their plain meaning. See Lockhart v. United States, 546 U.S. 142, 126 S.Ct. 699, 702, 163 L.Ed.2d 557 (2005). Such a rule assures that, where statutory language is unambiguous, it will be applied in accordance with congressional intent. Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004).

A statute is ambiguous only if it is susceptible to more than one reasonable meaning. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (foreclosing ambiguity where the meaning of a statute is “coherent and consistent”). Where a statute is ambiguous, and its legislative history shows undisputed congressional intent, that history may aid statutory interpretation. See Gustafson v. Alloyd Co., 513 U.S. 561, 580-81, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (holding that where legislative history is considered, “it is preferable to consult the documents prepared by Congress while deliberating”); see also United States v. Congress of Indus. Orgs., 335 U.S. 106, 112-13, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948) (observing that when interpreting an ambiguous remedial statute, it is advisable to consult “informed congressional discussion”).

Taking a position contrary to Alvarez, some courts have determined that the meaning of “clothing” under § 3(o) does not exclude protective gear. See Bejil v. Ethicon, Inc., 269 F.3d 477, 480 n. 3 (5th Cir.2001); Davis v. Charoen Pokphand, Inc., 302 F.Supp.2d 1314 (M.D.Ala.2004). Because protective gear is worn in the same manner as other clothing, this interpretation appears plain and reasonable. Assuming that the term “clothing” is ambiguous, however, other authorities support this position.

In Steiner v. Mitchell, the U.S. Supreme Court considered whether time spent changing clothes and showering was com-pensable as hours worked. 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Although the Court did not directly examine the meaning of the term “clothing,” the employees in that case were employed at a chemical plant. So the employees were required to wear special suits, for protection from chemicals, during their shifts. The Court held that, because wearing the suits was “essential to the principal activities of the employees,” time spent changing was compensable. Id. at 254, 258, 76 S.Ct. 330. Thus Steiner strongly supports the inference that protective gear is within the meaning of the term “clothing.”

This inference receives further support from the legislative history of the Fair Labor Standards Act, which Steiner recites in part. One senator acknowledged that chemical plant workers

are required to put on special clothing and to take off their clothing at the end of the workday, and in some of the plants they are required to take shower baths before they leave.

Id. at 258, 76 S.Ct. 330 (quoting 93 Cong. Rec. 2297-98 (Mar. 20, 1947) (remarks of Sen. Cooper)). Thus the legislative history of § 3(o) also demonstrates that protective gear is within the intended meaning of the term “clothing.” Given the plain meaning of the statute and consistent legislative history, the plaintiffs cannot avoid the § 3(o) exemption by asserting that protective gear is not clothing.

Assuming for the sake of argument that the rule of Alvarez is controlling, the question then becomes whether items here are “required specialized protective equipment.” See Alvarez, 339 F.3d at 905. When all reasonable inferences are taken in favor of Kassa, the record only shows that employees were required to wear pants, shirts, smocks, gloves, hairnets, and safety glasses. None of these items can reasonably be characterized as specialized protective equipment. See id. at 903-04 (describing hard hats and goggles as “non-unique protective gear”). Thus, the rule of Alvarez does not prevent Kerry from asserting the § 3(o) exemption.

2. Custom or Practice Under a Collective Bargaining Agreement

The remaining question, then, involves the parties’ custom or practice under their collective bargaining agreement (CBA). If there was a custom or practice that employees are not paid for time spent donning or doffing clothing, then that time is not part of hours worked. Hoover v. Wyandotte Chemicals Corp., 455 F.2d 387, 387-88 (5th Cir.1972).

To determine whether a custom or practice exists, the underlying inquiry is whether particular conduct becomes part of a CBA “through a prolonged period of acquiescence.” Turner v. City of Philadelphia, 262 F.3d 222, 226 (3d Cir.2001) (citing Detroit & Toledo’s Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 153-54, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969)). When examining whether acquiescence has taken place, courts uniformly look to whether the issue was raised and then abandoned by the union. See id. at 225-26; Bejil v. Ethicon, Inc., 269 F.3d 477, 480 (5th Cir.2001); Arcadi v. Nestle Food Corp., 38 F.3d 672, 674-75 (2d Cir.1994). Although the issue may be abandoned in the context of negotiations toward a collective bargaining agreement, see Hoover, 455 F.2d at 387-88, it is not necessary that the issue be abandoned in the course of formal negotiations, Turner, 262 F.3d at 226.

When all reasonable inferences are taken in favor of Kassa, the record fails to show that employees ever disputed being paid for time spent putting on or taking off clothing. Because they did not raise the issue, they also did not abandon it. Thus they had no opportunity to acquiesce and no custom or practice was established.

Kerry counters that acquiescence may be established, without any dispute, where employees are consistently silent about the issue. In support of this proposition, Kerry principally relies on two Eighth Circuit cases; two unpublished cases; and a ruling by the National Labor Relations Board (NLRB).

The Eighth Circuit cases only offer a general discussion of custom and practice, and they do not involve circumstances where employees failed to lodge a grievance. See Alton v. S. Lodge No. 306 Broth. Rwy. Carmen v. Alton & S. Rwy. Co., 849 F.2d 1111, 1114 (8th Cir.1988); Broth. of Maintenance Way Employees, Lodge 16 v. Burlington R.R. Co., 802 F.2d 1016, 1022 (8th Cir.1986). Although the NLRB decision does involve a general failure to lodge a grievance, this decision also does not involve § 3(o), and the conduct of the employer was too intermittent to establish a custom or practice. See In re Philadelphia Coca-Cola Bottling Co., 340 N.L.R.B. No. 44 (Sept. 29, 2003).

The unpublished cases, however, specifically discuss custom and practice under § 3(o). In one of these cases, the court expressly noted that the issue was raised in formal negotiations. See Saunders v. John Morrell & Co., No. C88-4143, 1991 WL 529542 at *4 (N.D.Iowa Dec.24, 1991). The other acknowledges some negotiations, without finding whether the issue was raised at one plant, and does not expressly determine that employees’ silence established a custom or practice. Huntington v. Asarco, Inc., No. 201-133J, 2002 WL 1315800 at *2 (N.D.Tex. Jun 13, 2002). So neither case offers support for Kerry’s position.

Contrary to the position argued by Kerry, federal authorities consistently require knowing acquiescence before finding a custom or practice under a CBA. See, e.g., Cruz-Martinez v. Dep’t of Homeland Security, 410 F.3d 1366, 1370 (Fed.Cir.2005); Nat’l Labor Relations Bd. v. New York Telephone Co., 930 F.2d 1009, 1011 (2d Cir.1991). And to show the knowledge required for such acquiescence, courts look to whether the union or its employees have taken some action, whether through a grievance or in negotiations for a CBA, complaining of the employer’s conduct. See J. Vallery Elec., Inc. v. Nat’l Labor Relations Bd., 337 F.3d 446 (5th Cir.2003); Broth. of Locomotive Engineers v. Springfield Terminal Rwy., 210 F.3d 18, 33-34 (1st Cir.2000). As a result, a tacit agreement is not enough to establish a custom or practice. J. Vallery Elec., Inc., 337 F.3d at 453.

To prevail on its motion for summary judgment, Kerry has the burden to establish its defense. But its employees never challenged its decision not to compensate them for time spent changing clothes, and so Kerry lacks any evidence that its employees acquiesced in the decision. Kerry cannot establish a custom or practice that exempts this time from hours worked under § 3(o), and therefore, it is appropriate that its motion for summary judgment be denied.

III. RECOMMENDATION

The items used by Kerry’s employees constitute “clothing” within the meaning of § 3(o) of the Fair Labor Standards Act. In accordance with this section, Kerry may exempt time spent putting on and taking off clothing from hours worked, if the parties have that custom or practice under their CBA. But Kerry lacks proof that its employees knowingly acquiesced to such a custom or practice, and as a result, it does not qualify for the § 3(o) exemption. This Court recommends, therefore, that Kerry’s motion for summary judgment be denied.

IV. RECOMMENDATION

Being duly advised of all the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED THAT:

1. Kerry’s motion for summary judgment (Doc. No. 12) be DENIED.

2. Because Kerry does not oppose the plaintiffs’ pending motions to amend for reasons other than those raised in its motion for summary judgment:

a. The plaintiffs’ motions to amend (Doc. Nos.7, 24) be GRANTED.

b. The plaintiffs promptly file their most recent proposed amended complaint. 
      
      . Hair nets and beard nets are perhaps different, as they are purely functional and are not generally considered "clothes” as that term is ordinarily used. But the precise classification of hair nets and beard nets is not important, for two reasons: First, donning and doffing those items alone is surely a de minimis activity. (On this point, the Court agrees with Alvarez. 339 F.3d at 903.) Second, the Court is denying Kerry’s motion for summary judgment for reasons unrelated to the classification of hair nets and beard nets.
     
      
      . The R & R can also be read to imply that a "custom or practice” under § 203(o) might be established by evidence that the union brought a grievance about nonpayment for clothes-changing time. R & R at 7-8. The Court does not address this question, which is not raised by plaintiffs and is raised only indirectly by Kerry (through its citation of Philadelphia Coca-Cola Bottling Co., 340 N.L.R.B. 349 (2003), and Kerry's discussion of the union's failure to bring any grievances over the issue, Def. Mem. Supp. Mot. S.J. at 3).
     
      
      . Although the parties do not raise the issue, an intervening concern is posed by Rule 56(e), which requires parties on a motion for summary judgment to supply proof through sworn affidavits. See Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir.2006). Because Kerry relies entirely on unsworn declarations, it fails to meet its burden of proof on its affirmative defense. So it is possible to hold, without further analysis, that it cannot prevail on its motion for summary judgment.
     