                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-11-2001

Turner v. Philadelphia
Precedential or Non-Precedential:

Docket 00-1519




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Turner v. Philadelphia" (2001). 2001 Decisions. Paper 233.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/233


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Filed August 21, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1519

WILLIAM TURNER; YVONNE RUFFIN; JAMES OECHSLE;
GLADYS WOODARD; GEORGE AALBREGTSE; CALVIN
AKERS; ROBERT ALBRIGHT; BARRY AMOS; KEVIN
ANDERSON; ELLIOTT BAILEY; TYRONE BANKS; WILLIAM
BAUER; WILSON BECKWITH, JR.; VITO BENDZIUS;
DEBORAH BLACKMAN; GLENDA BLAKE; LORETTA
BLAKE; BERTRAND BLIER, SR.; JOSEPH BLOCKER;
MARY BONETT; JAMES BOSTON; CHARLES BOTTOMS;
CAROLYN BOYCE; FABIAN BRINSON; VICTOR BROWN;
WILLIAM BRYANT; RALPH BURTON; CARL BURWELL;
VALERIA CARR-PULLEN; JULIE I. CARTER; SHEILA
CATLETT; BARBARA CHAVIS; RODNEY CHRISTIAN;
RONALD CIAVARDONE; EDWARD CLARK; DONNA
COLLIER; RICHARD CONGELOSI; EILEEN COOK; JAMES
COOPER; GENEVIEVE CORBI; JOSEPH COUSER;
EDWARD CRUMP; CLEMON DAVIS; CORNELIA DAVIS;
GLEN DAVIS; NATHANIEL DAVIS; HERMINIO DELGADO;
TERESA DIXON; ELIZABETH DONNELLY; JOHN
DONNELLY; SHAWN DONNELLY; GLORIA DOUGHTY;
FREDERICK DRAKE; KEITH T. DRAKE; RICARDO
DRUMMOND; TIMOTHY DUFFY; DIANA DUKES; FAY
EARLY; CARLOS FELICIANO; ANTHONY FISHER;
CHRISTINE FOWLER; RALPH FOXWORTH; SYBIL
FREEMAN; RICHARD FRENCH; MICHAEL FULLER;
JOSEPH FURNESS; JOHN GALLAGHER; RICHARD
GALLOWAY; LUCINDA GIBBONS; VICTOR GILL; JOAN
GOLDBERG; MICHAEL GOODMAN; LISA GOODS;
DEMETRIA GORDAN; JOHN GREEN; RUTH GREEN;
RONNIE HAAS; NADA HALL; TRACI HALL; ROBIN
HAMES-SMITH; JULIA HAMILTON; CHARLES HAMMOND;
CHARLES HARLEY; JACQUELINE HARRISON; EILEEN
HARVEY; SHARON HATCHER; PATRICK HENDERSON;
SEAN HENDERSON; ELIZABETH HENRY; TRACI
HERDER; BURNIE HILL; WILLETTE HILL; GAIL
HOLLAND; JACQUELINE HOLLOWAY; STANLEY HOLMES;
TRUEMANNA HOWLAND; WILLIAM HUBER; MARY HULL;
GERALDINE HUNTER; RONALD HUNTER; MICHAEL
INNAMORATO; GLORIA JACKSON; GLORIA JEFFCOAT
EDWARDS; ESTELLE JENKINS; GENEVA JOHNSON;
HELENE JOHNSON; MELVIN JOHNSON; SAMUEL
JOHNSON; ARLETHA JONES; BERTHA JONES; ERNEST
JONES; MARGARET JONES; LORNA KAPLAN; THOMAS
KEYS; THEODORE KRAUS; JOYCE LAUGHINGHOUSE;
TYRA LAWS; WILLIAM E. LAWTON; KEVIN LEE; JOHN
LEWIS, SR.; PATRICIA LEWIS; WILLIAM LOGAN;
MICHAEL LONG; JOSE LOPEZ; EUGENE LOVE;
CHARLES LUBICKY, JR.; ANTHONY LUCAS; ARTHUR
LUPTON; MARY HELEN MADDEN; WILFREDO MALAVE;
MICHAEL MARATEA; RICHARD MARCHEWKA; RICHARD
MARIOTT; GREGORY MARSHALL; GERALD MAY; DARYL
McCALL; PAUL McCANN; ARNEIDA McNEIL; DORLEEN
McQUEEN; ERMA MERRITT; MARK MICHALOWSKI;
DAWN MIDDLETON-BRYANT; MARY MILLER; JONATHAN
MOODY, JR.; JACQUELIN MOORE; JOSEPH MOORE;
KENNETH MOORE; MICHAEL MORAN; ALVIN MORRIS,
JR.; EUGENIA MUHAMMAD; EDWARD MULHOLLAND;
LINDA MULLIN; JOHN MUNIZZA; JANICE MURPHY;
CLAUDE MYERS; NANETTE NORMAN; JAMES NUSKY,
JR.; BERNARDO OLIVER; SUSAN ORTIZ; WILLIAM ORTIZ;
DENEAN OSBORNE; BRYAN OUTTERBRIDGE; PAUL
PALMER; CLAYTON O. PICKENS; WANDA PICKETT;
AARON PIERCE; RENEE POLES; ANTHONY PORTA;
CHRISTOPHER PORTA; ANN PORTER; ANNAMARIA
POWELL; EARL PRYOR; NINA QUARLES; WILLIAM
QUIGLEY; MARIAN REESE; MARSHALL ROBINSON;
MARTY ROBINSON; MARTA RODRIGUEZ; JULIA
ROGERS; NANCY ROLLINS; WILLIAM ROSS; KEITH
RUSSELL; ROBERT RUSSELL; JOHN SAHOU; JOHN
SCHMIDT; GEORGE SCOTT; KENNETH SHAW; PETER
SHAW; LISA SHELTON; ROBERT SHELTON; CATHERINE
SHIRLEY; KATIE SINGLETON; EUGENE SMITH; KEVIN
SMITH; PHYLLIS SMITH; ROOSEVELT SMITH; SHARON
SMITH; SIDNEY SMITH; FRANCINE SMITH-SHELTON;

                               2
VERONICA SMOKES; CHARLENE SNEAD; RICHARD
SPINELLI; CHARLES SPORT; DENISE ST. JOHN; MARY
STATON; LATANYA M. STEPHENSON; PAMELA L.
STEVENS; WILLIAM E. STEWART, JR.; CHERYL
STOVALL; NATHANIEL SULLIVAN; ALBERT SWINDLE,
JR.; JOHN TARCZEWSKI; ANIKA TAYLOR; BARBARA
THOMAS; PATRICIA THOMAS; BRADFORD THOMPSON;
FLOYD TILLMAN; DONALD TOMES; GEORGE TRAPP;
KIMTHIA TRUESDALE; JANICE TURNER; CHARLES
TURPIN; CORNELL TYLER; UFA UTLEY; LILLIAN
WALKER; WAYNE WALLACE; MICHAEL WEAVER;
FREDERICK WEBB; THERESA WEBER; BERNADETTE
WEST; ROCHELLE WHITTINGTON; RONALD WILCH;
FRED WILEY; IRIS N. WILEY; WILLIAM WILEY; RONALD
WILKINS; ERIC WILLIAMS; JIMMY WILLIAMS; IRVIN
WYATT; PATRICIA YOUNG; TIMOTHY YOUNG, Appellants

v.

CITY OF PHILADELPHIA; THOMAS COSTELLO,
PRISONS COMMISSIONER

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 98-cv-02990)
District Judge: Honorable Jay C. Waldman

Argued: July 31, 2001

Before: BECKER, Chief Judge, McKEE, and
WEIS, Circuit Judges.

(Filed: August 21, 2001)

                               3
       ROBERT GOGGIN, ESQUIRE
       William L. Keller & Associates, P.C.
       1528 Walnut Street
       Philadelphia, PA 19107

       WALTER WEIR, JR., ESQUIRE
       RICHARD P. COE, JR., ESQUIRE
        (ARGUED)
       Weir & Partners, LLP
       1339 Chestnut Street
       Suite 500,
       The Widener Building
       Philadelphia, PA 19107

       Counsel for Appellants

       MARK J. FOLEY, ESQUIRE
       RAYMOND A. KRESGE, ESQUIRE
        (ARGUED)
       GEORGE A. VOEGELE, JR.,
        ESQUIRE
       Klett, Rooney, Lieber &
        Schorling, P.C.
       Two Logan Square, 12th Floor
       Philadelphia, PA 19103-2756

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal from an order of the District Court
granting summary judgment for the defendants in a class
action suit brought by over 200 current and former
corrections officers against the City of Philadelphia and the
City Prisons Commissioner. The officers, seeking overtime
compensation under the Fair Labor Standards Act (FLSA)
for the time they spent changing into and out of their
uniforms, demand $1.4 million in overtime back pay for
this change time, along with $1.4 million in liquidated
damages, attorneys fees, and a court order requiring
change time compensation in the future. For the reasons
that follow, we affirm.

                                4
I.

The FLSA actually speaks directly to this issue. Under
S 207(a)(1), employers must pay their employees an
overtime wage for hours worked in excess of forty hours per
week. See 29 U.S.C. S 207(a)(1). We assume arguendo, as
plaintiffs would have us do, that clothes and uniform
change time would ordinarily be included within hours
worked.1 Section 203(o), however, provides a specific
exclusion from the calculation of hours worked for clothes
and uniform change time:

        Hours Worked.--In determining for the purposes of
       sections 206 and 207 of this title 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.

29 U.S.C. S 203(o). The express terms of the relevant
collective bargaining agreement in this case do not mention
an exclusion of change time from hours worked. The
dispositive issue, therefore, is whether there is a"custom or
practice under a bona fide collective-bargaining agreement"
in the Philadelphia corrections system of excluding change
time from compensable hours worked.

Because this is an appeal from the grant of summary
judgment in favor of the defendants, in order to succeed on
appeal plaintiffs need to demonstrate that there is a
genuine issue of material fact as to whether such a"custom
or practice under a bona fide collective-bargaining
agreement" exists. Judge Waldman, the author of the
District Court's opinion, did not think such a genuine issue
was created, in light of the following uncontroverted facts:

       (1) The City of Philadelphia has not compensated
       corrections officers for change time for over 30 years.

       (2) Every collective bargaining agreement between the
_________________________________________________________________

1. Defendants do not dispute this point.

                               5
       City of Philadelphia and the corrections officers' union
       --the American Federation of State, County and
       Municipal Employees District Council 33, Local 159B--
       has been silent as to compensation for uniform change
       time.

       (3) William Turner, one of the lead plaintiffs, served for
       some time as the union's president. During his tenure
       (between June 1994 and June 1997), he proposed at
       several labor management meetings with the
       Commissioner and Deputy Commissioner of Prisons,
       and with Philadelphia's Labor Relations Administrator,
       that change time be made compensable. However, the
       union did not make this request in formal collective
       bargaining negotiations. At the same time, the union
       did ask for and receive a uniform maintenance
       allowance and overtime compensation for the one hour
       per week that corrections officers spent at mandatory
       pre-shift roll calls.

       (4) The union never filed a grievance or demanded
       arbitration based on the non-compensability of change
       time.

II.

According to Judge Waldman, corrections officers'
acquiescence to not being compensated for change time can
constitute a "custom or practice under a bona fide
collective-bargaining agreement" for purposes ofS 203(o).
See Turner v. City of Philadelphia, 96 F. Supp. 2d 460, 461-
62 (E.D. Pa. 2000). Judge Waldman believed that the
uncontroverted facts listed above sufficed to establish
acquiescence on the officers' part. Consequently, he
concluded that there was no genuine issue of material fact
as to the existence of such a "custom or practice under a
bona fide collective-bargaining agreement," and entered
summary judgment for the defendants. We agree.

The sole legal issue, both before Judge Waldman and
again on this appeal, concerns the proper reading of the
phrase "custom or practice under a collective-bargaining
agreement." Plaintiffs have insisted that a "custom or
practice" within the meaning of S 203(o ) cannot arise unless

                               6
the particular issue that is the subject of the"custom or
practice" was raised in formal collective bargaining
negotiations. We have examined the cases cited by plaintiffs
in their briefs in support of this proposition, see, e.g.,
Arcadi v. Nestle Food Corp., 38 F.3d 672, 675 (2d Cir.
1994); Hoover v. Wyandotte Chems. Corp., 455 F.2d 387,
389 (5th Cir. 1972); Williams v. W.R. Grace & Co., Davidson
Chem. Div., 247 F. Supp. 433, 435 (E.D. Tenn. 1965); none
of these cases, however, makes the existence of formal
negotiations a necessary element.2

Plaintiffs' reading of 203(o)'s "custom or practice"
exclusion turns heavily on their interpretation of the phrase
"under a bona fide collective-bargaining agreement." 29
U.S.C. S 203(o). According to plaintiffs, the phrase "under a
bona fide collective-bargaining agreement" means that a
"custom or practice" of non-compensability cannot come
into being unless (1) the issue of compensability is
specifically raised in formal collective bargaining
negotiations, and then (2) dropped by the negotiators.3
Stated in a slightly different fashion, plaintiffs argue that
they cannot have forfeited their FLSA right to change time
compensation time by having failed to contest the
Department of Corrections' 30-year-old policy of non-
compensability; in their submission, to establish a"custom
or practice under a bona fide collective-bargaining
agreement" for S 203(o) purposes, one must show a specific
abandonment of the compensability issue at a formal
negotiation session.

We think that plaintiffs interpret the phrase "custom or
practice under a bona fide collective-bargaining agreement"
too narrowly, placing undue emphasis on the clause"under
_________________________________________________________________

2. Defendants in fact point to a decision from the District Court for the
Northern District of Texas, which states: "The parties are not required to
have raised the issue of not compensating employees for clothes-
changing time in formal collective bargaining negotiations for the
provisions of 29 U.S.C. S 203(o) to apply." Bejil v. Ethicon, Inc., 125 F.
Supp. 2d 192, 197 (N.D. Tex. 2000).

3. If the formal collective bargaining negotiations result in the
inclusion
of a specific non-compensability provision in the collective bargaining
agreement, the S 203(o) exclusion would apply because change time is
made non-compensable by the "express terms of " the agreement.

                               7
a bona fide collective-bargaining agreement" while virtually
reading the clause "custom or practice" out ofS 203(o). In
essence, plaintiffs construe "custom or practice under a
bona fide collective-bargaining agreement" as"custom or
practice established through formal collective bargaining
negotiations." To the contrary, we view the phrase as simply
restating the well-established principle of labor law that a
particular custom or practice can become an implied term
of a labor agreement through a prolonged period of
acquiescence. See, e.g., Detroit & Toledo Shore Line R.R. Co.
v. United Transp. Union, 396 U.S. 142, 153-54 (1969);
Bonnell/Tredegar Indus., Inc. v. NLRB, 46 F.3d 339, 344
(4th Cir. 1995); Railway Labor Executives Ass'n v. Norfolk &
Western Ry. Co., 833 F.2d 700, 705 (7th Cir. 1987);
Brotherhood of Maintenance of Way Employees v. Chicago &
North Western Transp. Co., 827 F.2d 330, 334 (8th Cir.
1987).

Moreover, as Judge Waldman observed when plaintiffs
made this legal contention, plaintiffs have offered no good
reason justifying their proposed reading. See Turner, 96 F.
Supp. 2d at 463. At oral argument on this appeal, plaintiffs
did offer a slim rationale, which we find unpersuasive.
Plaintiffs argued that formal negotiations are required for a
"custom or practice" of non-compensability to exist because
plaintiffs have a pre-existing statutory right under the FLSA
to compensation for uniform change time. The fatal flaw in
plaintiffs' rationale, however, is its failure to acknowledge
that the scope of this FLSA right is specifically cabined by
S 203(o)'s "custom or practice" exclusion, i.e., its exclusion
from compensable hours worked of "any time spent in
changing clothes . . . which was excluded from measured
working time . . . by the express terms of or by custom or
practice under a bona fide collective-bargaining agreement."
29 U.S.C. S 203(o). The fact that plaintiffs may possess a
general, antecedent right under the FLSA to have change
time included in compensable hours worked, therefore, is
simply irrelevant to the logically subsequent question
whether a "custom or practice" of non-compensation
existed, thereby triggering S 203(o)'s provision mandating
that the change time covered by that "custom or practice"
be excluded from compensable hours worked.

                               8
III.

Because the uncontroverted facts establish plaintiffs'
long-standing acquiescence to a "custom or practice" of the
non-compensability of change time, the judgment of the
District Court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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