United States Court of Appeals

For the Eighth Circuit

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No. 15-1078

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David J. Jackson; Linda R. Bittner; Lisa Stone; Lettie Hodges; Daniel Wilson;

Brenda McCollum; Robin Ramirez,

lllllllllllllllllllll Plaintiffs - Appellants,

v.

Old EPT, LLC, also known as EaglePicher Technologies, LLC,

lllllllllllllllllllll Defendant - Appellee.

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Appeal from United States District Court 

for the Western District of Missouri - Joplin

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 Submitted: November 17, 2015

 Filed: August 23, 2016

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Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.

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COLLOTON, Circuit Judge.

This appeal arises from an action brought by hourly production employees

against their employer, EaglePicher Technologies, LLC, pursuant to the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, and the Missouri Minimum Wage

Law, Mo. Rev. Stat. §§ 290.500-290.530. The employees sought payment for time

spent on various tasks, including the donning and doffing of work clothing and
protective gear, walking to and from production lines, and waiting in line to clock in

and out for work. The district court granted summary judgment for EaglePicher, and

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the employees appeal. We affirm.

I.

EaglePicher operates a battery manufacturing facility in Joplin, Missouri. The

company employs hourly production workers at the Joplin facility. Since at least

1967, those employees have been represented by a union, presently known as the

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial

and Service Workers Union, Local 812. The plaintiff-employees are all members of

the union.

The employees donned either coveralls or smocks, along with safety glasses,

while working at the facility. At times, they also wore various forms of personal

protective equipment to perform their job duties. Beginning in 1989, collective

bargaining agreements between the union and EaglePicher included language about

employees changing into and out of work clothing outside of the scheduled work

period. It is undisputed that the language consistently was interpreted as excluding

from compensable time the donning and doffing of work clothing outside of the

regular paid shift.

The last signed collective bargaining agreement between EaglePicher and the

union commenced in May 2004 and expired on May 2, 2008. In 2008, the company

and the union attempted to negotiate a successor collective bargaining agreement. 

During those negotiations, the union made no proposal regarding compensation for

the donning or doffing of work clothes. In a letter dated May 28, 2008, EaglePicher

The Honorable Beth Phillips, United States District Judge for the Western 1

District of Missouri.

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declared that the negotiations had “been at an impasse in bargaining for quite some

time.” The company wrote that, effective June 2, 2008, it would unilaterally

implement its “Last, Best and Final Offer” as the governing terms and conditions of

employment for the members of the union.

EaglePicher proceeded to implement those terms. The union did not declare

a strike, and the General Counsel of the National Labor Relations Board advised in

a letter that EaglePicher was privileged to implement its last, best, and final offer. 

The implemented terms contained identical language to the 1989 collective

bargaining agreement about the donning and doffing of work clothing.

In subsequent negotiationsin 2011, the union provided EaglePicher with a list

of proposals that the union sought to include in a new collective bargaining

agreement. Among those proposed terms was a subsection providing that

“[e]mployees who are required to wear personal protective equipment or clothing will

be allowed fifteen (15) minutes with pay at the beginning of each shift for donning

of such equipment or clothing and fifteen (15) minutes with pay just prior to the end

of each shift for doffing of such equipment or clothing.” EaglePicher rejected this

proposed language, and the union withdrew the proposed subsection from its list of

bargaining proposals. In negotiations the following year, the union did not propose

payment for time spent donning and doffing. The parties have not negotiated and

signed a written collective bargaining agreement since the expiration of the 2004

agreement in May 2008.

Current and former hourly production employees at the Joplin facility brought

this action, alleging that EaglePicher failed to compensate them for straight time and

overtime. They claimed, as relevant to this appeal, that EaglePicher violated the

FLSA by failing to compensate them fully for time spent donning and doffing work

clothing and protective equipment.

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The district court ultimately concluded that none of the time at issue was

compensable, because it was excluded from the definition of “hours worked” under

the FLSA. See 29 U.S.C. § 203(o); Adair v. ConAgra Foods, Inc., 728 F.3d 849 (8th

Cir. 2013). The court thus granted summary judgment for EaglePicher, and the

employees appeal. We review the district court’s grant of summary judgment de

novo. Reich v. ConAgra, Inc., 987 F.2d 1357, 1359 (8th Cir. 1993).

II.

The FLSA provides that “no employer shall employ any of his employees . . .

for a workweek longer than forty hours unlesssuch employee receives compensation

for his employment in excess of the hours above specified at a rate not less than one

and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). 

The definition of “hours worked” for purposes of § 207 excludes “any time spent in

changing clothes or washing at the beginning or end of each workday which was

excluded frommeasured working time during the week involved by the express terms

of or by custom or practice under a bona fide collective-bargaining agreement

applicable to the particular employee.” Id. § 203(o).

The employees argue that the district court erred in its treatment of time spent

donning and doffing. They emphasize that § 203(o) applies only to time that is

excluded from measured working time “under a bona fide collective bargaining

agreement.” The employees assert that because the 2004 collective bargaining

agreement expired before the period at issue, there is no bona fide collective

bargaining agreement to support the employer’s defense under § 203(o).

Under the law of this circuit, when an employer imposes unilateral terms and

conditions after the parties reach a bargaining impasse, the continuation of work by

a company’s employees does not, by itself, establish the existence of an interim labor

agreement between the parties. United Paperworkers Int’l Union, AFL-CIO, Local

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274 v. Champion Int’l Corp., 81 F.3d 798, 803-04 (8th Cir. 1996). An interim labor

agreement may exist, however, if an employer makes an offer and the union accepts

that offer by means “over and above the fact that union members continued to work.”

Id. “[E]vidence of offer and acceptance must relate to the union-employer bargaining

relationship” to prove that a contract wasformed. Id. The union may accept the offer

expressly or by conduct. An acceptance need not be formal, “because an interim

agreement is by definition informal.” Id.

The undisputed facts here show the existence of an interim labor agreement. 

EaglePicher’s implementation of its last, best, and final offer was an offer to form an

interim labor agreement, and the union so understood it. The union accepted the offer

by continuing to work without striking and taking further actions relating to the

bargaining relationship: Union members filed 182 grievances alleging contractual

violations since the last, best, and final offer terms were implemented. Cf. McNealy

v. Caterpillar, Inc., 139 F.3d 1113, 1122 n.7 (7th Cir. 1998).

The employees claim that the union’s acceptance of the terms extends only to

the grievance procedures. But the record shows that the union grieved thirty-one

disputes seeking to enforce the implemented terms pertaining to wages or hours

worked. This undisputed evidence showsthat the agreement also encompassed terms

involving wages and hours. None of these grievances, moreover, challenged the

absence of pay for donning and doffing.

A union representative also referred to “the existing contract” when notifying

EaglePicher about a proposed negotiating conference, and the union dropped its

request to be paid for donning and doffing after raising it once during the six-year

period. In a separate legal action to compel arbitration, the union asserted that “an

implied-in-fact contract” exists between the union and EaglePicher, and sought

enforcement of certain implemented terms under that implied-in-fact contract. These

actions by the union, taken together, show that the union acted beyond merely

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allowing employees to continue to work after an impasse. They establish acceptance

of the offer and the existence of an interim labor agreement.

The employees assert that even if the parties have an interim labor agreement,

there is no “bona fide collective bargaining agreement” within the meaning of

§ 203(o). We see no meaningful difference. An offer made through the employer’s

unilateral implementation of terms, if accepted by the union, can be the foundation

for an “implied-in-fact collective bargaining agreement.” McNealy, 139 F.3d at 1121-

23 & n.8; see Luden’s Inc. v. Local Union No. 6 of Bakery, Confectionery & Tobacco

Workers’ Int’l Union, 28 F.3d 347, 360-61 (3d Cir. 1994). Although signed contracts

play an important role in the field of collective bargaining, see H.J. Heinz Co. v.

NLRB, 311 U.S. 514, 524-25 (1941), “it is well established that a collective

bargaining agreement is not dependent on the reduction to writing of the parties’

intention to be bound.” Twin City Pipe Trades Serv. Ass’n v. Frank O’Laughlin

Plumbing&Heating Co., 759 F.3d 881, 885 (8thCir. 2014) (quotingCapitol-Husting

Co. v. NLRB, 671 F.2d 237, 243 (7th Cir. 1982)); see also 29 U.S.C. § 158(d)

(obligation to bargain includes execution of a written contract incorporating

agreement reached “if requested by either party”); NLRB v. Haberman Constr. Co.,

641 F.2d 351, 355-56 & n.1 (5th Cir. 1981) (en banc). The interim labor agreement

here was an implied-in-fact contract between the employer and the union regulating

employment conditions, wages, benefits, and grievances. It was made in good faith,

without fraud or deceit. As such, it met the ordinary definitions of “bona fide” and

“collective bargaining agreement.” Black’s Law Dictionary 199, 299 (9th ed. 2009). 

Nothing about § 203(o) leads us to believe that Congress employed different

meanings of those terms.

There also is no genuine dispute that donning and doffing time was excluded

from measured working time by “custom or practice” under the implied-in-fact

agreement. The phrase “custom or practice under a bona fide collective bargaining

agreement” simply restates the “well-established principle of labor law that a

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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.3d 222, 226 (3d Cir. 2001). Before the present implied-in-fact agreement, previous

collective bargaining agreements consistently were interpreted as excluding pre- and

post-shift donning and doffing time from compensable working time. The union did

not object to this interpretation or suggest payment for that time until several years

after the last formal collective bargaining agreement expired. It therefore acquiesced

in this implied term of the labor agreement. See Bhd. Ry. Carmen v. Mo. Pac. R.R.

Co., 944 F.2d 1422, 1429 (8th Cir. 1991); see also Turner, 262 F.3d at 226. That the

union once in 2011 proposed compensation for donning and doffing before

abandoning the suggestion does not create a genuine issue of fact about the existence

of a custom or practice. See Luden’s Inc., 28 F.3d at 356-57 & nn.15-16, 361, 364.

For these reasons, we conclude that there was an implied-in-fact bona fide

collective-bargaining agreement between EaglePicher and the union. A custom or

practice under that agreement excluded time spent donning and doffing work clothing

from measured working time. The district court thus correctly ruled that § 203(o)

excluded that donning and doffing time from“hours worked” for which compensation

was due. The judgment of the district court is affirmed.

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