The opinion of the court was delivered by: David Stewart Cercone United States District Judge
This matter comes before the Court on the Defendants' Motion for Summary Judgment (Document No. 45) and the Defendants' Motion to Strike (Document No. 53). For the reasons that follow, the Motion for Summary Judgment will be granted in part and denied in part, and the Motion to Strike will be denied as moot.
Plaintiffs Richard F. Figas ("Figas"), James R. McCabe ("McCabe"), Eddie W. Robinson ("Robinson"), Gary B. Shaffer ("Shaffer"), William C. Teets ("Teets"), John Marchitelli ("Marchitelli"), Bernie Hall ("Hall"), Philip Lucci ("Lucci") and Dennis K. Powell ("Powell") (collectively referred to as the "Plaintiffs") filed a representative action complaint on October 7, 2006, against Defendants Horsehead Corporation, Horsehead Corp., a/k/a Zinc Corporation of America (collectively referred to as "Horsehead"), alleging violations of the Fair Labor Standards Act of 1938 ("FLSA") [29 U.S.C. § 201 et seq.]. Doc. No. 1. Many of the facts relevant to the issues presently before the Court have been stipulated to by the parties.
Horsehead operates a zinc processing facility in Monaca, Pennsylvania. Joint Stipulation of Undisputed Facts (Doc. No. 42-2) at ¶ 1. Horsehead employs production and maintenance employees. Id. at ¶ 2. These employees are represented by Local 8183 of the United Steelworkers of America, AFL-CIO-CLC ("Local 8183"). Id. Horsehead and Local 8183 are parties to a collective bargaining agreement. Id. at ¶ 3. The employees who comprise the prospective collective class include those individuals who are, or have been, employed in Horsehead's hourly production and maintenance positions.*fn1 Id. at ¶ 4. Most production and maintenance employees are required to wear "protective clothing" throughout the course of their workday.*fn2 Id. at ¶ 5. Consequently, most of them are required to don their protective clothing before performing their daily tasks and to doff their protective clothing after completing such tasks. Id. Employees in the lead and cadmium program are required to shower before exiting the facility at the end of the day. Id.
Those employed in the lead and cadmium program are under more stringent requirements than those working in other Horsehead programs. The stipulation describes the daily donning and doffing procedures engaged in by one of these employees on a typical day. Id. at ¶ 6. Upon his arrival for work, such an employee picks up his time card at the guard shack before entering the locker room. Id. On the "clean side" of the locker room, he removes his regular clothes. Id. He then walks to the "dirty side" of the locker room, where he dons a flame retardant green jacket, pants or coveralls, a hard hat, and work shoes. Id. The jacket, pants and/or coveralls are referred to as "Greens." Id. After changing into his Greens, the employee either rides or walks to his particular worksite, depending on the distance. Id. At his worksite, he punches his timecard and begins to work his regular shift. Id. When his shift is complete, he punches his timecard before leaving the worksite.*fn3 Id. Before leaving the facility, he returns to the dirty side of the locker room, where he removes his Greens, hard hat and shoes. Id. He then proceeds to take a shower. Id. After showering, he proceeds to the clean side of the locker room, where he changes into his regular clothes. Id. At that point, he is free to leave the facility. Although some employees opt to don and doff their Greens at their worksites, most follow the procedure described above. Id.
Employees who are not in the lead and cadmium program don and doff in a similar manner, with a few exceptions. Instead of wearing Greens, they wear flame retardant grey jackets and pants, which are referred to as "Greys."*fn4 Id. at ¶ 7. They are not required to don and doff on the dirty side of the locker room, nor are they required to shower after working their shifts. Id. Although Horsehead apparently launders the Greens worn by lead and cadmium program employees, it does not launder the Greys worn by other employees. Id.
Horsehead has a "practice" of not paying its employees for the time that they spend donning and doffing their Greens or Greys, the time that they spend showering, and the time that they spend walking to and from the locker room (collectively referred to as "contested time").*fn5
Id. at ¶¶ 8-9. The Plaintiffs in this case concede that they have been properly paid for all of their other work-related activities. Id. at ¶ 10.
Local 8183 has represented the production and maintenance workers at Horsehead's Monaca facility since the 1970's. Second Joint Stipulation of Undisputed Facts (Doc. No. 44) at ¶ 1. The issue of payment for contested time was raised by neither Local 8183 nor Horsehead during collective bargaining negotiations prior to November 2007. Id. at ¶ 2. Consequently, the collective bargaining agreement between them does not expressly address the issue. Joint Stipulation of Undisputed Facts (Doc. No. 42-2) at ¶ 11. On April 26, 2006, Local 8183 filed a grievance seeking payment for contested time, relying on the decision of the United States Supreme Court in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). Second Joint Stipulation of Undisputed Facts (Doc. No. 44) at ¶ 3. Horsehead denied the grievance two days later. Id. at ¶ 4. Local 8183 processed the grievance to the Third Step. Id. at ¶ 5. On May 18, 2006, a meeting was held between Local 8183 and Horsehead. Id. Horsehead again denied the grievance five days later. Id. In a letter dated May 29, 2006, Local 8183 notified Horsehead that it had decided to move the grievance to the Fourth Step. Id. at ¶ 6. Nevertheless, no Step Four grievance meeting occurred. Id. at ¶ 7.
The Plaintiffs commenced this action against Horsehead on October 7, 2006, alleging violations of the FLSA. Doc. No. 1. Since that time, Local 8183 and Horsehead have negotiated a new collective bargaining agreement. Second Joint Stipulation of Undisputed Facts (Doc. No. 44) at ¶ 9. On November 7, 2007, as collective bargaining negotiations were underway, Horsehead made a proposal providing for the relevant employees to receive one hour per week of compensation for the contested time. Id. at 10; Doc. No. 44-6 at 3. Local 8183 rejected this proposal. Second Joint Stipulation of Undisputed Facts (Doc. No. 44) at ¶ 10.
On November 12, 2007, the parties filed a Joint Motion to Bifurcate and Stay, asking the Court to permit Horsehead to move for summary judgment solely with respect to two distinct issues concerning the FLSA and the Portal-to-Portal Act of 1947 ("Portal Act") [29 U.S.C. § 251 et seq.]. Doc. No. 42. The Court granted this motion on November 15, 2007, thereby staying discovery as to all issues other than whether Horsehead is entitled to summary judgment on the basis of § 3(o) of the FLSA [29 U.S.C. § 203(o)] or § 4(a) of the Portal Act [29 U.S.C. § 254(a)]. Doc. No. 43. One month of limited discovery was permitted with respect to these two issues. Id. On January 15, 2008, Horsehead filed a Motion for Summary Judgment. Doc. No. 45. In support of this motion, Horsehead contends that the Plaintiffs' claims are precluded by § 3(o) of the FLSA and/or § 4(a) of the Portal Act. In the alternative, Horsehead contends that it is entitled to the affirmative defense available under § 10 of the Portal Act [29 U.S.C. § 259] or, at a minimum, a determination in accordance with § 11 of the Portal Act [29 U.S.C. § 260] that liquidated damages should not be awarded in this case. Id. Finally, Horsehead argues that even if it violated the FLSA, it did not do so willfully, and that its liability should be limited to two years prior to the date on which the Plaintiffs commenced this action. 29 U.S.C. § 255(a). At the present time, the Court's inquiry is limited to these issues, since the parties agree that it would not serve their interests to engage in costly discovery that may ultimately prove to be unnecessary.
In their responsive brief, the Plaintiffs call the Court's attention to the fact that the Occupational Safety and Health Administration ("OSHA") cited Horsehead on January 10, 2006, for failing to protect its employees from exposure to lead and cadmium. Doc. No. 51 at 2, n. 1. Horsehead moves to strike this information on the ground that is inadmissible under the Federal Rules of Evidence. Doc. No. 53. This Motion to Strike is currently pending before the Court and, hence, will be addressed in this memorandum opinion.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all reasonable inferences in favor of the nonmoving party, "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). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating a lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the nonmoving party must set forth specific facts which show that there is a genuine issue for trial. Otherwise, the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). The opponent cannot rely on conclusory assertions in its pleadings and briefs. Mere conjecture or speculation by the party resisting a motion for summary judgment will not provide a basis for the court to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-383, n. 12 (3d Cir. 1990). If the nonmoving party's evidence is merely colorable or otherwise lacks probative force, summary judgment may be granted. Anderson, 477 U.S. at 249-250; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993)(noting that while the court is not permitted to weigh the evidence or determine the facts, it is not required to "turn a blind eye" to the weight of the evidence).
It is axiomatic that the FLSA requires employers to pay their employees for the time that they spend doing "work." Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1285 (10th Cir. 2006). The United States Supreme Court has consistently noted that, in this context, the term "work" has a very broad meaning. In Tennessee Coal, Iron & Rail Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944), the Supreme Court defined work as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Even this definition, however, is broader than it sounds, since activities need not involve true "exertion" in order to constitute work. DeAsencio v. Tyson Foods, Inc., 500 F.3d 361, 363-373 (3d Cir. 2007). In Armour & Co. v. Wantock, 323 U.S. 126 (1944), the Supreme Court explained: Of course an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer's property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer's benefit or for the employee's is a question dependent upon all the circumstances of the case.
Armour, 323 U.S. at 133. Two years later, in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690-691 (1946), the Supreme Court declared that, for purposes of the FLSA, "the statutory workweek includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace." Under the circumstances of the present case, it is undisputed that the time spent by the Plaintiffs to don and doff their Greens and Greys constitutes work for purposes of the FLSA. The critical issues in this case concern the construction and application of two statutory amendments to the FLSA.
The Supreme Court's broad view of the word "work" led Congress to conclude that the FLSA had been "interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers . . ." 29 U.S.C. § 251(a).
Thus, in 1947, Congress enacted § 4(a) of the Portal Act, which is codified at 29 U.S.C. § 254(a). Pub. L. No. 80-49, § 4(a), 61 Stat. 84, 86-87 (1947). That statutory language provides:
§ 254. Relief from liability and punishment under the Fair Labor Standards Act of 1938, the Walsh-Healy Act, and the Bacon-Davis Act for failure to pay minimum wage or overtime compensation (a) Activities not compensable. Except as provided in subsection (b), no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. § 201 et seq.], the Walsh-Healey Act [41 U.S.C. § 35 et seq.], or the Bacon-Davis Act [40 U.S.C. § 276a et seq.], on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act [May 14, 1947]--
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
29 U.S.C. § 254(a).*fn6 As the plain language of the statute indicates, the Portal Act narrows the "activities" for which the FLSA entitles an employee to compensation, with the caveat that nonprincipal activities remain compensable where they occur during the course of, rather than before or after, a "continuous workday."
Concerned that the Portal Act had not closed all of the undesired loopholes left by the Supreme Court's expansive construction of the FLSA, Congress amended the FLSA again in 1949. Section 3(o) of the Fair Labor Standards Amendments of 1949 added the following statutory language to 29 U.S.C. § 203, which is the "Definitions" section of the FLSA:
(o) Hours Worked. In determining for the purposes of sections 6 and 7 [29 U.S.C. §§ 206 and 207] the hours for which an employee is employed, there shall be excluded 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.
Pub. L. No. 81-393, § 3(o), 63 Stat. 910, 911 (1949); 29 U.S.C. § 203(o). Given the plain language of this statute, a collective bargaining agreement may exclude "time spent in changing clothes or washing at the beginning or end of each workday" from the amount of time for which an employee is entitled to compensation.
Horsehead contends that the Plaintiffs' claims are barred by § 254(a) of the Portal Act and § 203(o) of the FLSA. Generally speaking, its argument concerning § 254(a) is dependent upon its argument concerning § 203(o). Horsehead argues that the time that its employees spend donning and doffing their Greens and Greys constitutes time "changing clothes" within the meaning of § 203(o). There is no dispute that the time spent by lead and cadmium program employees showering in the locker room constitutes "washing" time for purposes of the statutory language. Horsehead contends that, because the Plaintiffs have stipulated that Horsehead has a "practice" of not paying its employees for the contested time, their claims for donning, doffing and showering time are precluded by § 203(o). Assuming this to be true, Horsehead goes on to argue that the time spent by its employees walking or riding to and from the locker room (after donning and before doffing) constitutes a "preliminary" (in the case of post-donning movement) or "postliminary" (in the case of pre-doffing movement) activity for purposes of § 254(a) because the application of § 203(o) precludes a determination that the donning and doffing activities are themselves compensable "principal" activities. The cumulative effect of this reasoning, of course, would preclude the Plaintiffs from recovering compensation for any of the contested time. Doc. No. 46 at 3-15. The Plaintiffs attack each link of this chain. First, they contend that the Greens and Greys worn by them during the course of a workday do not constitute "clothes" for purposes of § 203(o). Second, they assert that Horsehead cannot establish that its "practice" of not paying its employees for the contested time can be fairly characterized as being "under a bona fide collective bargaining agreement" within the meaning of § 203(o). Finally, they argue that even if it is assumed that recovery for their donning, doffing and showering time is precluded by § 203(o), their walking or riding time is nevertheless compensable on the ground that it follows (in the case of donning) and precedes (in the case of doffing) "principle" activities under § 254(a). This third argument relies on the premise that while § 203(o) may diminish the quantity of time for which they can seek compensation under the FLSA, it does not change the meaning of the phrase "principal activity or activities" found in the Portal Act. Doc. No. 51 at 6-22. The Court will proceed to address each of these three issues seriatim.
A. "Changing Clothes" Under § 203(o)
In order to succeed in a defense under § 203(o) with respect to an employee, a defendant must establish that the time for which compensation is sought constitutes "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." 29 U.S.C. § 203(o)(emphasis added). Inherent in this defense are two separate elements, the first of which is time spent by an employee engaging in the requisite statutory conduct (i.e., the act of "changing clothes or washing") and the second of which is the existence of a bona fide collective-bargaining agreement which (either expressly or implicitly) excludes such time from the employee's compensable workweek. In order to obtain summary judgment, Horsehead must satisfy both of the statutory criteria. Kassa v. Kerry, Inc., 487 F.Supp.2d 1063, 1065 (D.Minn. 2007).
Before addressing the terms of the collective-bargaining agreement between Horsehead and Local 8183, the Court must determine whether the Plaintiffs change their clothes when they don and doff their Greens or Greys.*fn7 The application of the word "change" in this case is relatively straightforward. In this context, "change" is a verb which means "to make different in some particular." Merriam-Webster's Collegiate Dictionary (11th ed. 2003). Although the issue has not been fully developed in the relevant jurisprudence, courts have generally not accorded much significance to whether the donning of "clothes" requires an employee to either undress completely or remove a particular piece of clothing. Anderson v. Cagle's, Inc., 488 F.3d 945, 956 (11th Cir. 2007)("Nothing in the statute's language suggests that its application turns on whether one must fully disrobe or exchange one shirt, for example, for another. Therefore, we conclude that one need not exchange clothes to change clothes for the purpose of applying § 203(o).")(emphasis added). Assuming that the garments donned by the employee constitute "clothes," the "change" requirement is satisfied where articles of clothing are added, even if nothing previously worn is removed.*fn8 Even if that were not the case, however, the undisputed facts of this case would nevertheless fall neatly within the statutory language. The parties have stipulated that lead and cadmium program employees are required to disrobe on the clean side of the locker room before donning their Greens on the dirty side. Joint Stipulation of Undisputed Facts (Doc. No. 42-2) at ¶ 6. While other employees are not required to don and doff their Greys on the dirty side, the stipulation indicates that their daily activities are not otherwise different.*fn9
Id. at ¶ 7. Hence, it appears that all of the Plaintiffs (including those who wear Greys) are required to undress somewhere in Horsehead's locker room in order to don their work gear. Under these circumstances, there is no dispute concerning the statute's use of the word "change."
The parties vigorously dispute the question of whether the Greens and Greys worn by Horsehead employees constitute "clothes" within the meaning of the statute. They also dispute the applicable standard for evaluating the question in the first place. The Plaintiffs view § 203(o) as an "exemption," whereas Horsehead views it as an "exclusion." This distinction is important because of the Supreme Court's admonition that exemptions contained in the FLSA must be narrowly construed against employers attempting to rely on them, and that their application is limited to instances in which their "terms and spirit" are deemed to be "plainly and unmistakably" applicable. Arnold v. Ben Kanowsky, 361 U.S. 388, 392 (1960). The Plaintiffs argue that this ...