The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
Plaintiffs have brought this action against their employer under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., seeking compensation for time spent donning and doffing (i.e., putting on and taking off) certain protective gear as well as showering and walking to and from their workstations after donning and before doffing. Pending before the Court is a Motion for Summary Judgment filed by Defendant United States Steel Corporation ("U.S. Steel" or "Defendant"). (Docket No. 48). Plaintiffs oppose Defendant's motion. (Docket No.57). After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, the Motion for Summary Judgment is granted in part and denied in part.
Unless otherwise indicated, the following material facts are undisputed.
Plaintiffs George Andrako, Mark Bruce, and John McCormick (the "named Plaintiffs"), are hourly employees at a Clairton, Pennsylvania coke manufacturing plant owned and operated by Defendant U.S. Steel ("Clairton Coke Plant"). The approximately 1,250 production and maintenance employees at the Clairton Coke Plant, including the named Plaintiffs, are represented by the United Steelworkers of America, AFL-CIO-CLC ("USWA"). The 1,250 USWA-represented production and maintenance employees at the Clairton Coke Plant also are members of USWA Local Union 1557.
For over 70 years, U.S. Steel and the USWA have engaged in collective bargaining regarding wages, hours of work, and other terms and conditions of employment at U.S. Steel's facilities around the country, including at the Clairton Coke Plant. The current collective bargaining agreement, formally titled the Basic Labor Agreement Between U.S. Steel and the USWA ("2008 BLA"), became effective as of September 1, 2008, and was the successor agreement to the Basic Labor Agreement dated May 20, 2003 ("2003 BLA"),*fn1 which expired according to its terms in September 2008. The 2003 and the 2008 BLAs each set forth the terms and conditions of employment for the production and maintenance workers at all of U.S. Steel's domestic steel producing facilities, including those at the Clairton Coke Plant.
1. 1947 Supplemental Agreement and 2008 Letter Agreement
On April 22, 1947, U.S. Steel and the union entered into a national collective bargaining agreement. In a collectively-bargained Supplemental Agreement attached to the Agreement of April 22, 1947, the parties agreed, inter alia, that:
The Company shall not be obligated to compensate for any travel or walking time or time spent in preparatory and closing activities on the employer's premises which occurs during the term of the Agreement... for which compensation is not paid under present practices, it being agreed that because of the conditions prevailing with respect to such activities they are not compensable....
Docket No. 52, Ex. A.6. Provisions of the 1947 Supplemental Agreement regarding compensability of preparatory and closing activities were expressly referenced and continued in every BLA thereafter until the 2003 BLA.
Although the 2003 BLA does not expressly reference the 1947 Supplemental Agreement, it states that "[a] Local Working Condition established prior to May 20, 2003, which would interfere with the workplace restructuring objective set forth [elsewhere in the Agreement] will be eliminated or modified as appropriate. Those Local Working Conditions unaffected by the foregoing will be preserved." Id., Ex. A.2 at 63 (2003 BLA, Section A.6.b.). Appendix I to the 2003 BLA further provides that "[a]ll Other USS Agreements and Other National Agreements are continued in full force and effect unless: a. expressly modified by this LOA; or b. in conflict with the USS-National CBA." Id., Ex. A.2 at 215 (2003 BLA, App'x I).
During collective bargaining in the summer of 2008, U.S. Steel and the USWA entered into a Letter Agreement Regarding FLSA Matters. The Letter Agreement, which is incorporated into and is part of the 2008 BLA, provides in relevant part as follows:
The Parties [U.S. Steel and the USWA] agreed that starting in 1947, every national collective bargaining agreement or BLA negotiated by the Parties has included an agreement that the Company is not obligated to pay Employees for preparatory or closing activities which occur outside of their scheduled shift or away from their worksite (i.e., so-called "portal-to-portal activities"). Such activities include such things as donning and doffing of protective clothing (including such items as flame-retardant jacket and pants, metatarsal boots, hard hat, safety glasses, ear plugs, and a snood or hood), and washing up.
Docket No. 52, Ex. A.7. The Letter Agreement also contains a new provision regarding wash-up time for certain employees. See id.
2. Employees' Pre- and Post-Shift Activities
Upon entering the Clairton Coke Plant, the employees proceed to a locker room where they can change into their work clothes. The Clairton Coke Plant includes numerous "regulated areas" that are subject to regulations set forth by the Occupational Safety & Health Administration ("OSHA"). These regulations establish standards for coke oven emissions and mandate that employees who work in a "regulated area" wear certain protective clothing and maintain certain hygiene practices. Employees who work in a regulated area are provided with two lockers -- one for work clothes and the other for street clothes, pursuant to the Coke Plant Standard regulations set forth at 29 C.F.R. § 1910.1029(I) and (h)(2)(v).
The Company provides protective clothing and equipment to any employee whose job requires that such clothing be worn or to any employee who desires to wear such clothing for his or her own convenience. Although the full complement of protective clothing worn by any individual employee depends on that employee's specific job or assignment, some or all of the following protective clothing is worn by employees: safety glasses; hard hat; boots; "greens" (flame retardant jackets and pants); flame resistant gloves; hearing protection; snoods or hoods; wristlets; and/or respirators. Some of these items such as hearing protection, respirators, wristlets, and gloves, are not donned prior to the start of an employee's shift, but are put on and taken off at the worksite during the employees' paid shifts. None of the required items may be worn outside the facility.
Employees who work in a "regulated area" at the Clairton Coke Plant are required to shower at the end of their shift. In accordance with applicable OSHA regulations, U.S. Steel provides and maintains wash houses and locker rooms for this purpose. Employees at Clairton who do not work in a regulated area are not required to shower at the end of their shift and whether any such employee elects to wash up or shower is the employee's decision and for his or her own convenience.
Named Plaintiffs Andrako and McCormick work in Coke Production on First Unit at Battery B. Named Plaintiff Bruce currently works in the Battery Preservation Department, but worked in Coke Production on Battery B until 2007.*fn2 Plaintiffs are required to wear protective clothing and equipment while they perform work in regulated areas of the plant.
Plaintiffs agree that U.S. Steel has never compensated them for their time outside their scheduled shifts spent donning, doffing, or walking to/from their job location. Also, with the exception of the prospective modification in the 2008 Letter Agreement, Plaintiffs never have been compensated for time spent showering outside of their scheduled shift. Plaintiffs deny, however, that any such "agreement, custom and practice" is permissible under the FLSA. See Docket No. 56 ¶¶ 30, 32, 42.
On or about November 30, 2007, Plaintiffs filed a Complaint against Defendant on behalf of themselves and all other similarly situated employees at the U.S. Steel Clairton manufacturing plant. (Docket No. 1). The Complaint set forth two counts against Defendant, alleging violations of the FLSA and the Pennsylvania Wage Payment and Collection Law ("PWPCL"). Plaintiffs assert their FLSA claim as a collective action pursuant to 29 U.S.C. § 216(b). On February 28, 2008, Defendant filed a motion to dismiss the Complaint in its entirety for failure to state a claim. (Docket No. 11). On May 8, 2008, I entered an order dismissing Plaintiff's PWPCL claim but denying the portion of the motion requesting dismissal of the FLSA claim against the named Plaintiffs. (Docket No. 21). On May 22, 2008, Defendant filed an Answer to Plaintiffs' Complaint and Affirmative Defenses. (Docket No. 24). On December 11, 2008, Defendant filed the instant Motion for Summary Judgment on case-dispositive, threshold issues, along with a Brief in Support, Concise Statement of Material Facts, and Appendix of Record Evidence. (Docket Nos. 48-54). On March 4, 2009, after a limited discovery ...