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ARCADI v. NESTLE FOODS CORP.

January 14, 1994

CHARLOTTE ARCADI, on behalf of herself and all other employees similarly situated, Plaintiff,
v.
NESTLE FOODS CORPORATION, Defendant.


Scullin, Jr.


The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.

MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 This is a class action brought pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA") and specifically, § 203(o) of Title 29 ("Section 203(0)") *fn1" by Plaintiffs, employees and former employees of Nestle Foods Corporation ("Defendant") who allege that they are entitled to overtime (time and a half) compensation for time spent changing into and out of uniforms required to be worn by them by Defendant. The matter is presently before the court on Defendant's motion for summary judgment and Plaintiffs' cross-motion to strike Defendant's affirmative defense that the amount of clothes-changing time is de minimis and therefore not compensable under the FLSA. The court heard oral argument on November 13, 1992 in Syracuse, New York and reserved decision on the motions. This constitutes the Decision and Order of the court.

 BACKGROUND

 Plaintiff initiated this lawsuit in March 1992, on behalf of herself and approximately 549 other similarly situated employees who, at the time in question, were employed by Defendant at its food processing facility in Fulton, New York. There are two unions at the Fulton plant, Locals 1974 and 1975 of the Retail, Wholesale & Department Store Union, AFL-CIO; the former ("Local 1974") represents production and maintenance employees, the latter ("Local 1975") represents laboratory employees. *fn2" Both unions, or their predecessors, have bargained for and entered into collective bargaining agreements with Defendant since 1942. At the time that Plaintiffs *fn3" commenced this lawsuit, both unions had collective bargaining agreements with Defendant effective May 21, 1990 to May 21, 1993.

 Prior to March 1990, Defendant did not require Plaintiffs to wear uniforms. Defendant did, however, maintain a voluntary uniform program, pursuant to which employees who chose to change into uniforms had to do so on their own time; i.e., neither prior to punching in nor after punching out. *fn4" In March 1990, Locals 1974 and 1975 commenced contract negotiations with Defendant. At that time, Defendant proposed amending the collective bargaining agreement "by adding 'the Company will maintain a mandatory employee uniform program,'" *fn5" "as a means of enhancing sanitation in the Fulton food processing facility" ("proposal No. 6"). *fn6"

 Local 1974, by way of counterproposal, requested that Defendant adopt the following four conditions:

 
1. that employees be allowed to wear union patches on their uniforms;
 
2. that employees who worked in colder areas of the factory be allowed to wear jackets or vests over their uniforms;
 
3. that employees be allowed to choose the color of their uniforms; and
 
4. that employees be compensated at a time-and-a-half rate for time spent changing into and out of uniforms. *fn7"

 Ultimately, Defendant acquiesced to the Union patch and jacket/vest requests, but rejected Local 1974's conditions regarding choice of colors and changing time compensation. Local 1974 subsequently withdrew the color choice proposal, but renewed its request for compensation for clothes-changing time and further requested that employees be allowed to wear their uniforms if they left the plant during lunch. Defendant acceded to the lunch provision, but again maintained that employees would not be compensated for clothes-changing time.

 It is undisputed that Defendant's final position, and its position throughout negotiations, was that Plaintiffs would not be compensated for clothes-changing time. It is also undisputed that, at the close of negotiations, when the Union "signed off" on Proposal No. 6, the Union understood that Plaintiffs would not be paid for clothes-changing time. *fn8" In this regard, Defendant contends that, with the Defendant's position of non-compensation unwavering, "Local 1974 then accepted [Defendant's] proposal," Defendant's 10J at P 12, as did Local 1975 "under the same terms and conditions as had been negotiated with Local 1974." *fn9"

 Plaintiffs do not dispute that, at the time that the union "signed off" on Proposal No. 6, they understood that Defendant had not conceded the issue of clothes-changing time. *fn10" Plaintiffs maintain, however, that although they understood at the close of negotiations that they would not be paid for clothes-changing time, that at no time during negotiations, did Local 1974 or 1975 expressly agree ...


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