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George andrako, et al v. United States Steel Corporation

March 9, 2011

GEORGE ANDRAKO, ET AL.,
PLAINTIFFS,
v.
UNITED STATES STEEL CORPORATION,
DEFENDANT.



The opinion of the court was delivered by: Ambrose, Senior District Judge

OPINION AND ORDER OF COURT

Plaintiffs brought this collective action against their employer, Defendant United States Steel Corporation ("U.S. Steel" or "Defendant"), under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Currently, Plaintiffs seek compensation for time spent walking to and from their workstations after donning and before doffing (i.e., putting on and taking off) certain protective gear. Pending before me is Defendant‟s Motion to Decertify the Collective Action Under 29 U.S.C. § 216(b) (Docket No. 493). For the reasons set forth below, the Motion is denied.

I. INTRODUCTION

A. Factual History

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 (AClairton 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 (AUSWA@) and are members of USWA Local Union 1557.

Since November 30, 2004, U.S. Steel has operated up to five Clairton Coke Plant batteries, where coal is baked into coke that is used in steelmaking. The batteries are designated B Battery, 1-3 Battery, 7-9 Battery, 13-15 Battery, and 19-20 Battery. See Docket No. 52-1 (Declaration of Preston Henderson), ¶ 6. Under existing OSHA regulations, employees who work in a regulated area are required to wear protective clothing and shower at the conclusion of their work. See id. ¶¶ 26, 43-44. Employees who work, or who may work, in a regulated area include those who work in coke production at batteries, certain battery preservation employees, and some maintenance employees. See Docket No. 74 (Additional Declaration of Preston Henderson), ¶¶ 10-12.

Many employees who don, doff, and shower do so at one of three locker rooms located within the Clairton Coke Plant: the Maple locker room (near the Maple gate), the Wabash locker room (near the Wabash gate), and the centrally-located Women‟s locker room. See id. ¶ 17. At the beginning of their scheduled shifts, employees assigned to work on the batteries currently report to a non-regulated area such as a lunchroom or office, where they participate in a "safety huddle" to discuss various safety issues before beginning their production assignments for the shift. These mandatory safety huddles occur after the workers don their protective gear and walk to the area where they work and last from a few minutes up to 15 minutes.Following the safety huddle, workers proceed to their assigned work stations. After completion of their work duties, battery workers travel back from their assigned work stations to their locker rooms, where they doff and shower.

Coke production employees are regularly scheduled for one of three eight-hour shifts and are paid by the shift. Coke plant workers receive overtime compensation for hours worked in excess of eight in one day, even if they do not work in excess of 40 hours for the work week. Since as far back as 1947, U.S. Steel and the USWA have agreed that U.S. Steel would not pay employees for preparatory and closing activities such as donning, doffing, and walking to and from work locations that occurred outside of the scheduled shift or away from the worksite. Henderson Decl. ¶¶ 36-37, 40, 43-45, 47, 56. Since August 2008, the Basic Labor Agreement also has provided, through a Letter Agreement: "Coke plant Employees who work in OSHA regulated areas and who are required to shower at the end of their shift will be provided with twenty (20) minutes wash-up time prior to the end of the Employee‟s shift, or a daily additive in an amount calculated at four-tenths (0.4) of an hour at the Employee‟s Base Rate of Pay, at the Company‟s choice." Id. ¶¶ 42-45 and Ex. 7. The 2008 Letter Agreement further provides that, except as to the prospective change regarding wash-up time, "the longstanding agreement regarding the non-compensability of portal-to-portal activities shall otherwise remain in effect." Id.

All employees at the Clairton Coke Plant swipe a card at the security gate through which they enter and exit the Plant on each day. U.S. Steel‟s swipe system records the entry and exit times and records elapsed time spent within the plant. Add. Henderson Dec. ¶ 16. The swipe system is designed for and is intended to be a security system; it is not used to record hours actually worked. Id. U.S. Steel does not use a time clock or any other system to record an employee‟s actual time on the job, spell time, or lunch breaks. See Docket No. 501-10 (2/5/09 Deposition of Preston Henderson), at 11. The company uses a system called the T.I.M.E.S. system to track some employee information on a shift-by-shift basis, including swipe times, position codes, shifts worked, and hours paid, including overtime. Add. Henderson Decl. ¶ 16.

B. Procedural History

On or about November 30, 2007, the Named Plaintiffs filed a Complaint against Defendant on behalf of themselves and all other similarly situated employees at the Clairton Coke Plant. (Docket No. 1). In relevant part, the Complaint alleges that Defendant violated the FLSA by failing to compensate employees for time outside their scheduled shifts spent donning, doffing, showering, and walking to/from their job locations after donning and prior to doffing.

Plaintiffs asserted their FLSA claim as a collective action pursuant to 29 U.S.C. § 216(b). On June 22, 2009, I issued an order entering partial summary judgment in favor of U.S. Steel, dismissing Plaintiffs‟ claims for time spent donning, doffing, and showering, but declining to dismiss Plaintiffs‟ claims for post-donning and pre-doffing walking time. (Docket No. 62). On September 2, 2009, I issued an order permitting this case to proceed as a section 216(b) collective action. (Docket No. 215). On September 15, 2009, I approved the parties‟ proposed Notice of Lawsuit with Opportunity to Join and authorized it to be sent to nearly 950 prospective "Opt-In Plaintiffs" whom Defendant believed had worked on OHSA-regulated areas dating back to November 2004. (Docket No. 227). My September 2, 2009 Order as well as the proposed Notice defined the collective action class as including:

Current and former [Clairton Coke Plant] employees who have worked in OSHA-regulated areas, and were required to walk from the locker rooms to the plant after changing into their work clothes and walk to the locker rooms at the end of the work day to change out of their work clothes and shower.

Id. After the Notice was sent, 320 individuals signed consent forms to opt in as class members ("Opt-In Plaintiffs").

On December 17, 2009, I set parameters for the parties to conduct discovery on class- and merits-related issues and permitted Defendant to depose up to 50 of the individuals who had "opted-in" to the case. During the discovery period, 69 of the 320 Opt-In Plaintiffs were dismissed from the case either voluntarily or because they did not respond to deposition notices. At this juncture, 251 Opt-In Plaintiffs remain in the case in addition to the three Named Plaintiffs.

Now pending before the Court is Defendant‟s Motion to Decertify the Collective Action Under 29 U.S.C. § 216(b), which Defendant filed on June 18, 2010. (Docket No. 493). In its motion, Defendant seeks an order decertifying the collective action and dismissing without prejudice the claims of all Opt-In Plaintiffs. Id. Defendant argues that Plaintiffs are not "similarly situated" because, inter alia, they have disparate factual and employment settings, there is no policy or practice that has a uniform impact on the class members, and there are numerous individualized defenses to the class members‟ claims. Plaintiffs oppose Defendant‟s Motion, arguing that they are similarly situated because they all are subject to a single uncontroverted unlawful pay practice, Defendant‟s defenses are either common defenses or otherwise do not warrant decertification; and one collective action will be more efficient and manageable than 254 individual trials. (Docket No. 500). Defendant filed a Reply ...


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