Justices: Collective bargaining determines pay for putting on protective gear

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WASHINGTON (PAI) - If Clifton Sandifer and his co-workers want to get paid for the time they take putting on steel-toed boots, protective jackets, hard hats and other gear before starting their shifts at their U.S. Steel mill in Northwest Indiana, their union - the Steelworkers - will have to successfully bargain for it for them, the U.S. Supreme Court says. And that same rule applies, the court adds, in cases where union workers take time to put on or take off protective gear. Otherwise, it's "changing clothes."

That's because, in a 9-0 decision on Jan. 27, the justices said time used in taking off and putting on the gear is a bargainable subject under labor law, even though another federal law, the Portal to Portal Act, says workers should get paid for the time they need to put on and take off protective gear. In Sandifer's case, the Steelworkers and U.S. Steel had agreed the workers would not be paid for the time involved.

The court's decision could potentially affect tens of thousands of workers covered by union contracts, who must take time to put on and take off protective gear such as hard hats, steel aprons, work gloves and steel-toed boots. That's not just steel workers, but also food plant workers, utility workers - indeed, workers in many occupations.

That time is a bargaining subject, Associate Justice Antonin Scalia's ruling said.

Because the contract said the workers could not get paid, Sandifer and his allies sued, saying the 1938 Fair Labor Standards Act - the law that enacted the minimum wage and overtime pay - governed their time. Had they won, U.S. Steel and other firms would have had to pay tens of thousands of dollars each for lost time. But the workers lost in the lower courts, and they lost at the High Court, too.

"U.S. Steel does not dispute" the lower courts' conclusion that "had the clothes-changing time in this case not been rendered non-compensable" - unpaid for - under a labor law section that let the union and the firm bargain on the issue, "it would have been a principal (job) activity," and thus the workers would have been paid, Scalia said.

Instead, U.S. Steel argued that, thanks to the contract, the workers were just "changing clothes," and labor law does not order firms to pay them for that. It won.

The object of the relevant section of labor law "is to permit collective bargaining over the compensability of clothes-changing time and to promote the predictability achieved through mutually beneficial negotiation. There can be little predictability, and hence little meaningful negotiation, if 'changing' means only 'substituting,'" Scalia added. "If the vast majority of the time is spent in donning and doffing 'clothes' as we have defined that term, the entire period qualifies, and the time spent put­ting on and off other items need not be subtracted."

Photo: Marvin Nauman/Wikipedia (CC)

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