                 United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 15-1078
                       ___________________________

  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.
                                      ____________

                   Appeal from United States District Court
                  for the Western District of Missouri - Joplin
                                ____________

                         Submitted: November 17, 2015
                            Filed: August 23, 2016
                                ____________

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
                        ____________

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 court1 granted summary judgment for EaglePicher, and
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


      1
       The Honorable Beth Phillips, United States District Judge for the Western
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 negotiations in 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 unless such 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 from measured 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 was formed. 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 shows that 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 (8th Cir. 2014) (quoting Capitol-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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