BELL et al v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

Filing 48

ORDER THAT THE MOTION TO DISMISS IS GRANTED. THE COMPLAINT IS DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO FED.R.CIV.P. 12 (b)(1). ANY PENDING MOTIONS ARE DENIED AS MOOT. THE CLERK OF COURT IS DIRECTED TO CLOSED THIS CASE FOR STATISTICAL PURPOSES; ETC.. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 9/28/12. 9/28/12 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID BELL, et al.,
Plaintiffs,
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY,
Defendant.

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CIVIL ACTION
NO. 11-4047

OPINION
September 28, 2012

Slomsky, J.
I.

INTRODUCTION
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.1 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).2
Before the Court is Defendant SEPTA’s Motion to Dismiss the Complaint under Federal

1

This action is related to a case previously filed in this Court and now settled, Cooper et
al. v. Southeastern Pennsylvania Transportation Authority, no. 06-888, 2011 WL 3919742 (E.D.
Pa. Sept. 6, 2011). The plaintiffs in Cooper were “swing run” drivers who worked morning and
afternoon shifts with a mid-day break. The Cooper plaintiffs alleged they were not compensated
for pre-inspections before their afternoon runs, in contrast to the morning pre-trip inspection at
issue in this case.
2

Under the FLSA, a case must be filed within two years after it accrues or it is barred,
except in the instance of a willful violation, such as the alleged claim here. 29 U.S.C. § 255(a).
The statute requires a willful violation to be filed within three years after the action accrues. Id.
When a willful violation is alleged, a plaintiff may be entitled to damages covering the three year
period. Id.
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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’s Motion to Dismiss.
II.

FACTUAL BACKGROUND
On June 21, 2011, Plaintiffs commenced this collective action3 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,4 (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.

3

On March 20, 2012, pursuant to provisions of the FLSA, Plaintiffs filed a Motion for
Conditional Certification and Notification (Doc. No. 28), which is currently pending on the
docket. Given the resolution of the Motion to Dismiss, Plaintiffs’ additional Motion will be
denied as moot.
4

Transport Workers Union Local 234 represents Operators in the City Transit and
Frontier Divisions. United Transportation Union Local 1594 represents Operators in the
Suburban Transit Division. All but two Plaintiffs are assigned to the City Transit Division, and
the remaining two Plaintiffs are assigned to the Frontier and Suburban Transit Divisions
respectively. No Plaintiff is assigned to the Philadelphia-Trenton Coach Division.
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(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 pretrip 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
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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 onequarter 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.

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(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 arbitration procedures under
each CBA are found in Section 202, entitled “Arbitration.” (Doc. No. 12, Exhibit B(1) at 15-20);
see also (Doc. No. 12, Exhibit B(2) at 11-16.)
Moreover, the CBA with the United Transportation Union Local 1594 covering the
Suburban Division Operators contains grievance handling and arbitration terms, found in Articles
34 and 35. (Doc. No. 12, Exhibit B(3) at 89-101.) The specific provision relevant to this case
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states as follows:
When the subject matter of the dispute involves a policy change or a contract
interpretation by the Authority which directly impacts [the] labor Agreement, the
Union shall have the right to initiate a grievance at the Labor Relations hearing
level.
(Doc. No. 12, Exhibit B(3) at 95.)
This case is not the first FLSA claim brought by SEPTA employees concerning a pre-trip
morning inspection. (Doc. No. 12 at 7.) In or about 1996, the United Transportation Union
Local 1594 or certain of its members filed a FLSA claim over morning pre-trip inspection. (Doc.
No. 12 at 7.) The parties, however, subsequently agreed that arbitration was the appropriate
forum. (Id.) The union therefore filed a grievance and litigated the issue in arbitration. (Id.)
The arbitration panel denied the Union’s grievance by a 2-1 vote. (Id.) In addition, as evidenced
by this history and the CBAs between each union and SEPTA, the morning pre-trip inspection
apparently has long been the subject of negotiations with the unions representing the Operators.
(Id.)
III. MOTION TO DISMISS STANDARD
Defendant SEPTA has moved to dismiss all claims against it under Federal Rule of Civil
Procedure 12(b)(1), challenging the Court’s jurisdiction to address the merits of the complaint
because arbitration is the appropriate forum for resolution of the dispute. Federal Rule of Civil
Procedure 12(b)(1) requires a court to grant a motion to dismiss if the court lacks subject-matter
jurisdiction to hear a claim. Rule 12(b)(1) states:
Every defense to a claim for relief in any pleading must be asserted in the responsive
pleading if one is required. But a party may assert the following defenses by motion:

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(1) lack of subject-matter jurisdiction . . . .
Fed. R. Civ. P. 12(b)(1). “[A] party asserting that the court has jurisdiction always bears the
burden of showing that the case is properly before the court.” Birchall v. Countrywide Home
Loans, Inc., No. 08-2447, 2009 WL 3822201, at *4 (E.D. Pa. Nov. 12, 2009) (citing Packard v.
Provident Nat’l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)). In deciding a Rule 12(b)(1) motion,
a court must first determine whether its subject-matter jurisdiction under Rule 12(b)(1) is being
challenged on a facial or factual basis. Walthour v. Child & Youth Servs., 728 F. Supp. 2d 628,
635 (E.D. Pa. 2010).
A facial attack challenges the sufficiency of Plaintiff’s pleadings. When a
defendant makes a facial attack, a court must accept the allegations contained in
the plaintiff's complaint as true. Conversely, when a defendant makes a factual
attack on the court's jurisdiction, the court does not attach a presumption of
truthfulness to the plaintiff's allegations, and the existence of disputed material
facts does not preclude the court from deciding for itself the jurisdictional issues
raised in the motion to dismiss.
Id. (internal citations and quotations omitted).
The parties agree that SEPTA raises a factual challenge to this Court’s subject matter
jurisdiction. Thus, this Court need not credit Plaintiffs’ allegations with a presumption of
truthfulness.
IV. DISCUSSION
A.

Federal Law in Support of Arbitration

The Federal Arbitration Act (“FAA”) provides that:
A written provision in any maritime transaction or a contract evidencing a transaction
involving commerce to settle by arbitration a controversy thereafter arising out of
such contract or transaction, or the refusal to perform the whole or any part thereof,
or an agreement in writing to submit to arbitration an existing controversy arising out
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of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the revocation of any contract.
9 U.S.C. § 2. This statutory language “reflects a ‘liberal federal policy favoring arbitration.’”
Khan v. Dell Inc., 669 F.3d 350, 354 (3d Cir. 2012) (quoting Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp,, 460 U.S. 1, 24 (1983)). As such, “questions of arbitrability must be
addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone
Mem’l Hosp., 460 U.S. at 24. In fact, the FAA“‘requires courts to enforce the bargain of the
parties to arbitrate.’” Marmet Heath Care Center, Inc. v. Brown, 132 S. Ct. 1201, 1203 (2012)
(quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985)). “‘Arbitration under the
[Federal Arbitration] Act is a matter of consent, not coercion, and parties are generally free to
structure their arbitration agreements as they see fit.’” Sutter v. Oxford Health Plans LLC, 675
F.3d 215, 220 (3d Cir. 2012) (quoting Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford
Junior Univ., 489 U.S. 468, 479 (1989)).
Moreover, the Labor-Management Relations Act (“LMRA”), which governs the
relationship between employers and unions states:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce . . . may be brought in any
district court of the United States having jurisdiction of the parties, without respect
to the amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). In discussing this provision of the LMRA, the Supreme Court preserved the
power of arbitrators to interpret CBAs, specifically stating: “interpretation of
collective-bargaining agreements remains firmly in the arbitral realm.” Lingle v. Norge Div. of
Magic Chef, Inc., 486 U.S. 399, 411 (1988).

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This Court must adhere to the strong federal policy in favor of arbitration. In this case,
regardless of how Plaintiffs frame their grievance over the alleged failure to properly compensate
them for work during the morning pre-trip inspection, it involves an interpretation of the CBAs.
Since the terms of the CBAs require the parties to arbitrate disputes arising from contract
interpretation, federal law requires that this procedure be followed and this Court will not
override this clear mandate.
B.

Plaintiffs’ FLSA Claims Require Interpretation of the CBAs

Plaintiffs assert that SEPTA requires Operators to perform morning pre-trip inspections
without payment. (Doc. 17 at 3.) In contrast, Defendant contends that compensation for the
morning inspections are covered by provisions of the CBAs. While the CBAs discuss pre-trip
inspections without referring specifically to the one done in the morning, any finding by this
Court about the applicability of the provisions at issue to morning inspections necessitates an
interpretation of the agreements. Since this is an issue of contract interpretation, this claim must
be decided by an arbitrator in accordance with the arbitration provisions in the CBAs.
In Vadino v. A. Valey Engineers, 903 F.2d 253 (3d Cir. 1990), the Third Circuit
addressed a situation analogous to this case. The plaintiff in Vadino alleged, in relevant part, that
the defendant violated the FLSA in computing overtime wages by using the incorrect wage rate,
where the wage rates were listed in the CBA. In holding that this claim could not be pursued in
federal court under the provisions of the FLSA, the Third Circuit found that “the FLSA contains
no language suggesting that an action filed thereunder would be an appropriate vehicle for the
interpretation of a disputed provision of the collective bargaining agreement.” Id. at 265. The

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court, therefore, declined to interpret the CBA and determine the applicable wage rate, holding
that:
claims which rest on interpretations of the underlying collective bargaining
agreement must be resolved pursuant to the procedures contemplated under the
[Labor Management Relations Act], specifically grievance, [and] arbitration[.]
Id. at 266. The Vadino decision further explained, “an employee cannot circumvent the
necessity of complying with the LMRA [grievance and arbitration] procedure to get a
determination of his or her right to the wages claimed.” Id. at 266.
In an opinion applying Vadino, a Court in this District held that a FLSA claim required
arbitration when the plaintiff alleged certain activities were considered work under the FLSA.
Townsend v. BC Natural Chicken LLC, No. 06-4317, 2007 WL 442386 (E.D. Pa. Feb. 2, 2007).
The court reasoned that the claim required interpretation of the CBA provision addressing time
spent changing clothes and washing, and therefore, the issue must be arbitrated. Id.
Here, the holdings in Vadino and Townsend are persuasive in resolving the instant claim
of Plaintiffs. The claim at issue in this case is compensation for morning pre-trip inspections
pursuant to the terms of the CBAs noted above specifically discussing the right to such
compensation. Although Plaintiffs assert there is “no underlying dispute over any term of the
operative [CBAs]” (Doc. No. 17 at 1), the Court disagrees. Compensation for work conducted
prior to the official work start time is specifically addressed in each of the three CBAs. Thus,
any finding about the applicability of these provisions to pre-trip morning inspections would
involve a question of interpretation of the CBAs, which is not a question for this Court to decide.
Rather, based on clear federal policy favoring arbitration and precedential case law on point, the

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applicability of the terms of the CBAs must be arbitrated according the procedures established in
the agreements, even when a claim is made under the FLSA.
C.

Negotiation History and Pre-Trip Inspection Compensation

In addition to the compelling federal policy and case law requiring the arbitration of CBA
issues involving contract interpretation, other related matters further support this Court’s decision
to dismiss this matter.
As noted previously, SEPTA and the unions have bargained over the compensable nature
of a pre-trip inspection at the negotiating table, which resulted in the terms quoted above in the
CBAs. (Doc. No. 12 at 7). In addition, in a related action which was previously settled, Cooper
v. SEPTA, 2011 WL 3919742, Allison Cooper, a plaintiff in that case and in this one who is also
a union officer, provided a sworn affidavit in regard to morning inspection that states:
13.

The first pretrip inspections are “on the clock.” In other words, SEPTA
pays for the work performed in conducting the pretrip inspections.
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15.

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Unlike the first of that day’s inspection, however, the day’s second
inspection is “off the clock.” In other words, SEPTA does not pay for the
second inspections. Instead, all “swing run” drivers start “on the clock”
only after their buses leave the district. Necessarily, pretrip inspection must
occur before buses leave the district.

Affidavit of Allison Cooper at ¶13 (attached to Doc. No. 12 as Exhibit E). The clear import of
Cooper’s affidavit is that compensation is paid for the morning pre-trip inspection. Moreover, in
Cooper, “Plaintiffs conceded that subsection (c) [of the City Transit Division’s CBA] covers the
morning pre-trip inspection by adding 15 minutes to the scheduled run time for having to report in
advance of the scheduled starting time.” Cooper v. SEPTA, 699 F.Supp.2d 690, 695 (E.D. Pa.
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2010). Thus, it is apparent that Plaintiffs’ claim in this case does not cover new ground, and is
subject to interpretation of the CBAs. Under these circumstances, an arbitrator must decide the
claim of Plaintiffs.
IV.

CONCLUSION

For reasons stated above, Defendant SEPTA’s Motion to Dismiss will be granted. An
appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID BELL, et al.,
Plaintiffs,
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY,
Defendant.

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CIVIL ACTION
NO. 11-4047

ORDER
AND NOW, this 28th day of September 2012, upon consideration of the Motion to
Dismiss filed by Defendant Southeastern Pennsylvania Transportation Authority’s (“SEPTA”)
(Doc. No. 12), Plaintiffs’ Memorandum in Opposition to Defendant’s Motion to Dismiss (Doc.
No. 17), Defendant’s Reply Brief in Support of its Motion to Dismiss (Doc. No. 18), and the
arguments made by counsel for the parties at the November 30, 2011 hearing, it is ORDERED as
follows:
1.

The Motion to Dismiss (Doc. No. 12) is GRANTED. The Complaint is
DISMISSED for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1).

2.

Any pending motions are DENIED as MOOT.

3.

The Clerk of Court is directed to close this case for statistical purposes.
BY THE COURT:
/s/ Joel H. Slomsky
JOEL H. SLOMSKY, J.