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David Bell, et al v. Southeastern Pennsylvania Transportation Authority

September 28, 2012


The opinion of the court was delivered by: Slomsky, J.



This matter involves overtime claims under the Fair Labor Standards Act, 29 U.S.C. § 201, ("FLSA") arising from Southeastern Pennsylvania Transportation Authority's ("SEPTA") alleged failure to pay its employees for performing morning pre-trip inspections.*fn1 Such a violation may entitle Plaintiffs and other similarly situated employees to damages for three years of work pursuant to 29 U.S.C. § 255(a).*fn2

Before the Court is Defendant SEPTA's Motion to Dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1), arguing that arbitration is the appropriate forum for resolution of this dispute. (Doc. No. 12.) Plaintiffs have filed a Memorandum in Opposition to SEPTA's Motion (Doc. No. 17.), and Defendant has filed a reply brief. (Doc. No. 18.) A hearing on the Motion was held on November 30, 2011. (Doc. No. 24.) For reasons that follow, the Court will grant Defendant'sMotion to Dismiss.


On June 21, 2011, Plaintiffs commenced this collective action*fn3 pursuant to 29 U.S.C. § 216(b) on behalf of all former and current SEPTA bus drivers and trolley operators (collectively referred to as "Operators"): (1) who are or were employed by SEPTA and worked out of SEPTA's City Transit Division, Frontier Division, Suburban Transit Division, and/or SEPTA's Philadelphia Trenton Coach Division,*fn4 (2) within three years of the commencement of their participation in this lawsuit, (3) and operated a SEPTA bus and/or trolley, (4) during a week in which they worked more than 40 hours or worked more than 40 hours when the time spent performing the pre-trip inspection is included. (Doc. No. 1 ¶ 8.)

Defendant SEPTA is a regional public transit authority organized under the laws of Pennsylvania, with its principal office located at 1234 Market Street, Philadelphia, Pennsylvania. (Id. ¶ 12.) Plaintiffs allege SEPTA violated the FLSA by failing to pay "off-the-clock" overtime to its Operators for time spent performing morning pre-trip inspections. (Id. ¶ 5.) Plaintiffs, on behalf of themselves and other similarly situated Operators, seek three years of unpaid compensation, an equal amount of liquidated damages, attorney's fees and costs, and all other available and appropriate relief to which they are entitled. (Id. at ¶ 10.)

According to Plaintiffs, under state and federal law, as well as SEPTA's standard operating rules, Operators are required to perform a pre-trip safety inspection of their vehicles before the start of each run. (Doc. No. 1 ¶ 2.) Each Operator must inspect and/or check at least nineteen distinct items on their vehicle, ranging from tire tread and pressure to the operation of the air brakes and vehicle's lights and reflectors. (Id. ¶ 21.) Prior to leaving the depot, each Operator must sign and leave a copy of a complete inspection checklist for SEPTA supervisors. (Id. ¶ 22.) Plaintiffs contend that, when the safety inspection became a mandate under state and federal law in the early 1990's, SEPTA required its drivers to perform the inspection, yet failed to provide additional paid-time for performing the inspection. (Id. ¶ 24.) As such, Plaintiffs allege they must perform the inspection on their own time prior to "clocking in" for the day. (Id.)

Under the FLSA, Operators must be paid 1.5 times their regular rate of pay for all hours worked over 40 hours in any given week. (Doc. No. 1¶ 4.) According to Plaintiffs, Operators perform the daily unpaid, pre-trip inspection "off-the-clock" before the start of their run. (Id. ¶ 11.) Plaintiffs allege that SEPTA's failure to pay its Operators for the time spent performing pre-trip inspections results in unpaid overtime wages constituting a willful violation of the FLSA. (Id. ¶¶ 5-6.) Plaintiffs also contend that their FLSA rights cannot be abridged by contract or otherwise waived, and that such rights take precedence over any conflicting provision in the requisite collective bargaining agreements (hereafter "CBAs") covering the Operators. (Doc. No. 1 ¶¶ 30-32.)

Defendant submits, on the other hand, that SEPTA has long required its Operators to conduct inspections as part of their morning report. (Doc. No. 12 at 4.) Moreover, Defendant avers that the CBAs between SEPTA and the unions contain provisions covering pre-trip inspections and, in accordance with the terms of the CBAs, arbitration is the appropriate forum for any dispute. (Id. at 4-5.)

Defendant contends that three CBAs govern Plaintiffs' terms and conditions of employment, and compensation for their first report of the day. First, Section 401 of the CBA between Transport Workers Union Local 234 representing the City Transit Division Operators and SEPTA is entitled "Platform Work; Runs; Minimum Day," and contains the following provision governing compensation for pre-trip work.

(c) Where an employee is required to report in advance of the scheduled starting time of one's run or to turn in passenger receipts or to so report and turn in, and does so, one-quarter hour will be added to the scheduled run time and the employee will be paid for the one-quarter hour at the aforesaid rate. This one-quarter hour will be treated as time worked for all purposes except in calculating daily over time under Section 404(c). (Doc. No. 12, Exhibit B(1) at 44.) Second, the CBA between Transport Workers Union Local 234 representing Frontier Division Operators and SEPTA includes a provision governing report/turn-in allowance, which provides, in relevant part:

(a) The Authority will pay operators required to report ten (10) minutes in advance of pull-out and who are required to turn in receipts at the completion of said work one quarter (1/4) of an hour per day for report and turn-in allowance. Such allowance will not be included for the computation of overtime.

(Doc. No. 12, Exhibit B(2) at 26.) Finally, the CBA between the United Transportation Union Local 1594 representing Suburban Division's Operators and SEPTA contains a report/turn-in time provision, which provides, in relevant part:

An additional allowance of two-tenths (.2) of an hour per day will be allowed all regular Operators for reporting time for preparation for their assignments. An additional one-tenth (.1) of an hour will be allowed all regular Operators for time consumed in performing clerical duties at the completion of their assignment. (Doc. No. 12, Exhibit B(3) at 63.)

In addition to these provisions governing compensation for pre-trip inspections, each CBA contains broad arbitration provisions addressing the proper framework for resolving disputes arising out of policy change or interpretation of the collective bargaining agreement.

The CBAs for the City Transit Division and Frontier Division contain identical provisions under Section 201, entitled "Grievance Handling," which compel the use of grievance-arbitration procedures for certain disputes. Specifically, these provisions require arbitration if "the dispute involves the application, implementation or interpretation of any of the provision(s) of the collective bargaining agreement" or when "the dispute involves a policy change by the Authority which directly impacts [the] Labor Agreement." (Doc. No. 12, Exhibit B(1) at 4-5); see also (Doc. No. 12, Exhibit B(2) at 2-3.) Further details regarding the ...

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