SMITH et al v. ALLEGHENY TECHNOLOGIES, INC. et al
Filing
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MEMORANDUM OPINION & ORDER. Signed by Judge Mark R. Hornak on 2/28/18. (jad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RALPH SMITH, et al.,
)
)
Plaintiffs,
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V.
)
)
2: 17-cv-00911
)
ALLEGHENY TECHNOLOGIES, INC., et
al.,
)
)
)
Defendants.
MEMORANDUM OPINION
Mark R. Hornak, United States District Judge.
This matter is before the Court on Defendants Allegheny Technologies, Inc., ("ATI") and
Strom Engineering Corporation's ("Strom's") objections (ECF Nos. 47 & 48) to the November
27, 2017, Report and Recommendation ("R&R") of Magistrate Judge Robert C. Mitchell (ECF
No. 45). The R&R recommends that the Court: (1) deny ATI's Motion to Dismiss (ECF No. 13);
(2) deny Strom's Motion to Strike (ECF No. 15); (3) grant Plaintiffs' Expedited Motion to
Conditionally Certify a Collective Action (ECF No. 11); and (4) deny Defendants' Motion to Stay
Plaintiffs' Expedited Motion (ECF No. 25) as moot.
Plaintiffs filed an omnibus response to Defendants' objections (ECF No. 49), and this Court
held oral argument on January 29, 2018. Also before the Court is Plaintiffs' Motion for Equitable
Tolling of its Expedited Motion to Certify (ECF No. 50), which has been fully briefed. The
objections to the R&R and the pending motions are ripe for disposition.
The factual background and procedural history of this case, along with the well-known
legal standard for ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), is accurately described in the R&R and will not be repeated here. (See R&R, ECF No.
45, at 1--4.) In resolving a party's objections, the Court conducts a de novo review of any part of
the R&R involving a dispositive motion that has been properly objected to. Fed. R. Civ. P.
72(b)(3); 28 U.S.C. § 636(b)(l). The Court may accept, reject, or modify the recommended
disposition, as well as receive further evidence or return the matter to the Magistrate Judge with
instructions. Id.
Upon careful review of the Complaint, all pending motions and the parties' briefs in
connection with those motions, the R&R, and the objections and briefs in support thereof and in
opposition thereto, the Court concludes that Plaintiffs' allegations fail to state any plausible claim
that their time spent commuting across the union picket line was compensable under the Fair Labor
Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., as amended by the Portal-to-Portal Act
of 194 7, § 251 et seq., and under parallel provisions of Pennsylvania and Oregon state law.
Accordingly, the Court declines to adopt the R&R, and for the reasons that follow, ATI's Motion
to Dismiss (ECF No. 13) is granted as to both ATI and Strom. 1 Because this motion is dispositive,
1
Strom filed a Motion to Strike certain assertions in the Complaint, ECF No. 15, but it did not formally join ATl's
Motion to Dismiss. Despite this, Strom joined in ATI's objections to the R&R on this point (Def. Strom's Obj. to
R&R, ECF No. 48, at 3 n. l ), and all parties, including Plaintiffs, have appeared to treat the Motion to Dismiss as a
joint motion between both Defendants. (See Pis.' Mem. Opp'n to Mot. to Dismiss, ECF No. 35, at 8 n.1 ("Neither
party appeared to join in the other parties' motion .... Plaintiffs assume, however, that the Defendants are
coordinating their efforts.").)
The Court is puzzled by this somewhat piecemeal litigation approach on Strom's part. Nevertheless, the
grounds in favor of dismissal raised in ATl's Motion are common to both Defendants, and Plaintiffs fully responded
to these arguments in its briefings. See Coulter v. Unknown Prob. Officer, 562 F. App'x 87, 89 n.2 (3d Cir. 2017)
(affirming district court's sua sponte dismissal ofnon-moving defendant where the grounds raised by the moving
defendants were common to all defendants and the plaintiff had an opportunity to respond to the moving defendants'
arguments); Sims v. Gregg, No. 15-cv-5426, 2017 WL 783748, at *7 (E.D. Pa. Feb. 28, 2017) (sua sponte
dismissing complaint against both moving and non-moving defendants where claims were time barred); Fleck v.
Univ. of Pa., No. 12-cv-3765, 2013 WL 12141349, at *7 (E.D. Pa. Feb. 20, 2013) ("Plaintiffs' failure to offer any
facts of 'other similarly situated individuals or groups' is fatal to their Equal Protection claims against flll defendants
in this matter, and since plaintiffs were adequately noticed of this possible basis for the dismissal of this claim in the
Penn defendants' motion to dismiss, we will dismiss it against all moving and non-moving defendants .... "
(emphasis in original)). Therefore, because Plaintiffs' Complaint fails to state a claim against Strom for identical
reasons as against ATI, the Court will consider ATI' s Motion to Dismiss as a joint motion between both Defendants
and sua sponte dismiss the claims against Strom.
2
the remaining pending motions are denied as moot, and the Plaintiffs' Complaint is dismissed with
prejudice. 2
I.
Count I: FLSA
The FLSA requires employers to pay employees overtime compensation for each hour
worked in excess of forty hours in each work week. See 29 U.S.C. § 207(a)(l). Among other
exemptions, the Portal-to-Portal Act clarifies that employers are not required to compensate
employees for their commute to and from work 3 unless that commute is either the "principal
activity" for which the employee is employed or is "integral and indispensable" to such a principal
activity. See 29 U.S.C. § 254(a); Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513, 516-17
(2014 ). An activity is "integral and indispensable" to the principal activities that an employee is
employed to perform "if it is an intrinsic element of those activities and one with which the
employee cannot dispense if he is to perform his principal activities." Integrity Staffing, 135 S. Ct.
at 517.
A. Principal Activity of Employment
The Court concludes that Plaintiffs' travel time across the picket line is noncompensable
commuting time. First, the commute was not the "principal activity or activities which [the]
employee is employed to perform." 29 U.S.C. § 254(a)(l). The Department of Labor has further
clarified what constitutes a principal activity:
[I]n order for an activity to be a "principal" activity, it need not be predominant in
some way over all other activities engaged in by the employee in performing his
job .... The "principal" activities referred to in the statute are activities which the
employee is "employed to perform" .... Congress intended the words "principal
2
For the reasons set forth in this Memorandum Opinion, the Court concludes that given the contours of the
applicable statutory and decisional law, any amendment would be futile.
3
'"Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities
which such employee is employed to perform, and activities which are preliminary to or postliminary to said
principal activity or activities' are excluded from FLSA's protections by the Portal-to-Portal Act; employers need
not pay employees overtime or minimum wage for such activity." Adams v. United States, 471 F.3d 132 l, 1325
(Fed. Cir. 2006) (quoting 29 U.S.C. § 254(a)).
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activities" to be construed liberally in the light of the foregoing principles to include
any work of consequence performed for an employer, no matter when the work is
performed.
29 C.F.R. § 790.8. Accordingly, the Court will liberally construe the term "principal activities" to
include "any work of consequence" that Plaintiffs performed for Defendants. Id
As alleged in Plaintiffs' Complaint, Plaintiffs' job duties included "pressing buttons,
operating a crane, lifting materials on to and off of machines, welding, and other repetitive and
rote manual labor tasks." (Compl., ECF No. 1,
~
73.) Plaintiffs are steelworkers; the principal
activity for which they were hired, and the work of consequence they performed for their employer,
was to make steel while the regular steelworkers at ATI' s facilities were locked out.
Plaintiffs do not contest that they were hired to make steel, but assert that an additional
principal activity for which they were hired was to serve as economic weapons to put pressure on
the labor union-specifically, by crossing the union picket line and keeping the ATI steelmaking
facilities open during the lockout. As the Complaint alleges, "ATI and Strom's purpose behind
requiring Plaintiffs and Class Members to travel in Strom vans was to safely transport them past
the USW4 picket lines and to their ATI worksites, in order to pressure the USW into accepting
ATl's labor bargaining demands while maintaining A Tl's business operations." (Id.
~
83.)
Plaintiffs are correct that an employee can have more than one principal activity. See 29
U.S.C. § 254(a)(l) (referring to "principal activity or activities" (emphasis added)); 29 C.F.R.
§ 790.8 ("[A]n employee may, for purposes of the Portal-to-Portal Act[,] be engaged in several
'principal' activities during the workday."). But to the extent hiring Plaintiffs as replacement
workers weakened the labor union's collective bargaining power (a theory the Court will accept
4
As explained in the Complaint, "USW" is the union involved in the ATI labor dispute: the United Steel, Paper and
Forestry, Rubber, Manufacturing, Energy, Allied industrial and Service Workers International Union, AFL-CIO,
CLC. (See Comp!., ECF No. 1, ~ 32.)
4
as true for the purposes of this Motion to Dismiss), it was because the replacement workers kept
the steelmaking business running by making steel-not simply because Plaintiffs engaged in the
act of crossing the picket line. More directly, if Plaintiffs had crossed the picket line but did not
go on to produce steel, there would not have been any additional economic pressure to accept
ATI's labor bargaining demands. Conversely, if ATI managed to continue making steel without
anyone crossing the picket line, the union's bargaining power would have been identically
weakened even without the commute by anyone in Strom's vans. In short, the only source of
economic pressure that the replacement workers placed on the union was from doing steel work,
and not from the act of crossing the picket line in and of itself. Accordingly, even accepting the
factual allegations of the Complaint as true and liberally construing "principal activities" to mean
any work of consequence performed for an employer, crossing the picket line in and of itself could
not be "the" or "a" principal activity for which Plaintiffs were engaged, as the Complaint itself
demonstrates. 5
B. Integral and Indispensable Test
Under the Portal-to-Portal Act and the Supreme Court's decision in Integrity Staffing, the
question then becomes whether the required commute across the picket line in Strom's vans was
integral and indispensable to Plaintiffs' principal activity-that is, the productive work of making
5 To conclude otherwise would in reason and logic make the act of going to work, any work, a "principal activity,"
exactly the result that the Portal-to-Portal Act disclaimed. Other courts have concluded that commuting time, even
when an employer dictates the terms of that commute, is not ordinarily compensable under the Portal-to-Portal Act.
For example, in Adams v. United States, federal law enforcement officers asserted that the time they spent
commuting to and from work in government-owned police vehicles was compensable because commuting in those
vehicles was a condition of their employment, and the officers were under various requirements during their
commuting time: they were required to have their weapons and other law enforcement-related equipment on them,
to have on and monitor their vehicles' communication equipment, and they were not allowed to run any personal
errands in their government vehicles-their commute had to "proceed directly from home to work and back again
without unauthorized detours or stops." 417 F.3d at 1323. The Federal Circuit upheld summary judgment in favor of
the government (and against the officers) and held that under the Portal-to-Portal Act, "commuting done for the
employer's benefit, under the employer's rules, is noncompensable ifthe labor beyond the mere act of driving the
vehicle is de minimis." Id. at 1328.
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steel. The terms "integral" and "indispensable" are used in their ordinary sense. Integrity Staffing,
135 S. Ct. at 517. As the Supreme Court explained, integral means "[b ]elonging to or making up
an integral whole; constituent, component; spec[ifrcally] necessary to the completeness or integrity
of the whole; forming an intrinsic portion or element, as distinguished from an adjunct or
appendage," and an indispensable duty is one "[t]hat cannot be dispensed with, remitted, set aside,
disregarded, or neglected." Id. An activity that is "two steps removed" from an employee's
productive work is not integral and indispensable, and is therefore noncompensable. Id. at 518.
The Court concludes that taking the allegations of the Complaint as true, they do not
demonstrate that Plaintiffs' required commute across the picket line was integral and indispensable
to Plaintiffs' work as steelworkers. Although Plaintiffs' commute was certainly not "ordinary" in
the sense that a typical employee does not need to travel across a picket line to get to work, the
Court is unconvinced that this fact makes Plaintiffs' travel any more integral to its productive work
for these purposes than a typical steelworker who commutes to A Tl's facilities in a non-labor
dispute setting. Plaintiffs assert that crossing the picket line was integral to maintaining ATI' s
business operations and is therefore compensable, but also disclaimed at oral argument that the
natural and probable consequence of the Court accepting this argument would be to make traveling
to work during a labor dispute compensable time for any employee. Beneath this argument lies the
apparent crux of Plaintiffs claim: that although commuting time, or even commuting across a
picket line, is not ordinarily compensable, it is in this case because (1) Strom and ATI required
Plaintiffs to cross the picket line in a particular way (here, in Strom's vans), and (2) safely
transporting replacement workers across picket lines is a key to Strom's business model and
provided a collective-bargaining benefit to A Tl. Both of these arguments fail to get around the
directives of the Portal-to-Portal Act.
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First, the Supreme Court's decision in Integrity Staffing foreclosed any argument that
crossing the picket line is compensable because it was required by ATI or Strom, or because it
provided a collateral benefit to Defendants. A court "err[s] by focusing on whether an employer
required a particular activity. The integral and indispensable test is tied to the productive work that
the employee is employed to perform." 135 S. Ct. at 519 (emphasis in original). "If the test could
be satisfied merely by the fact that an employer required an activity, it would sweep into 'principal
activities' the very activities that the Portal-to-Portal Act was designed to address .... A test that
turns on whether the activity is for the benefit of the employer is similarly overbroad." Id.
The proper question is whether commuting in Strom's vans was integral and indispensable
to Plaintiffs' productive work of making steel-and the Court concludes it is not, at least not with
respect to the FLSA analysis post-Integrity Staffing. Defendants could eliminate the requirement
that Plaintiffs commute to the ATI facilities in Strom's vans and allow Plaintiffs to commute to
work on their own, and the method of locomotion into the plant would have no obvious effect on
Plaintiffs' ability to make steel and maintain ATI's business operations. This compels the Court's
conclusion that Plaintiffs' method of commuting across the picket line is not indispensable to the
productive work of making steel. Similarly, and somewhat puzzlingly, Plaintiffs asserted at oral
argument (in response to the Court's hypothetical question) that if Strom's van broke down one
day and the replacement workers had to walk to work together, this travel time walking across the
picket line would not be compensable, whereas the same travel on all of the days where the van
functioned properly would be compensable. To suggest that what is integral and indispensable to
the principal activity that Plaintiffs were employed to perform can vary by the day based on the
working order of Strom's vans demonstrates that the travel requirement (or more precisely, the
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mode of that travel) was neither integral nor indispensable to Plaintiffs' productive work as
steelworkers. 6
Second, Plaintiffs make much of the fact that transporting replacement workers across
picket lines is a key to Strom's business model and is (according to Plaintiffs) the entire reason
ATI hired Strom. The Complaint quotes Strom's website, which states, "When you utilize our
comprehensive industrial strike staffing services, we will determine your business's unique needs,
locate, accommodate, and train qualified workers, secure safe transportation across picket lines,
and follow the appropriate protocol for strike staffing disbandment after a new labor contract has
been approved." (Compl., ECF No. 1,
~
20.) Plaintiffs allege that because Strom was hired to
transport the replacement workers across the picket line, the time Plaintiffs spend being transported
should be compensable. But this argument conflates Strom's principal activities with Plaintiffs'
principal activities. Unlike Plaintiffs, Strom's principal activities did not include producing steel;
rather, according to Plaintiffs' Complaint, Strom located, accommodated, trained, transported, and
disbanded the replacement workers. This does not mean Plaintiffs must be compensated because
crossing the picket line benefitted Strom or ATI,7 and it does not change the definition of the
productive work that Plaintiffs were employed to perform: making steel.
This result is fully in line with Supreme Court precedent applying the integral and
indispensable test in FLSA cases. In Integrity Staffing, the Court held that antitheft security
screenings, which warehouse workers were required to undergo at the end of each shift, were
noncompensable postliminary activities because the defendant "did not employ its workers to
6
Plaintiffs' response to this hypothetical further demonstrates that the act of crossing the picket line in and of itself
was not a principal activity of Plaintiffs' employment, even in the eyes of the Plaintiffs. If crossing the picket line
was "work of consequence performed for an employer" (29 C.F.R. § 790.8), it would be compensable regardless of
the mode of transportation.
7
Particularly since, as noted above, Plaintiff conceded at oral argument that an employee crossing the picket line on
foot, or via other non-Strom means, would not be engaged in compensable work time.
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undergo security screenings, but to retrieve products from warehouse shelves and package those
products for shipment to Amazon customers." 135 S. Ct. at 518. In contrast, the Supreme Court
held in another case that the time meatpacker employees spent sharpening their knives was
compensable, because this activity was integral and indispensable to their productive work of
butchering meat. Mitchell v. King Packing Co., 350 U.S. 260, 263 (1956). In Mitchell, the record
reflected that the knives "must be 'razor sharp' for the proper performance of the work .... [A]
dull knife would slow down production ... affect the appearance of the meat as well as the quality
of the hides, cause waste and make for accidents." 350 U.S. at 262. Unlike the security screenings
in Integrity Staffing, and the time Plaintiffs spent traveling across the picket line in this case, the
sharpness of a meatpacker's knife is not "two steps removed from the productive activity" for
which the employees were hired. Integrity Staffing, 135 S. Ct. at 518.
Accordingly, Plaintiffs' allegations fail to state any plausible claim that their time spent
commuting across the picket line was compensable under the FLSA.
II.
Counts II, III, and IV: State Law and Unjust Enrichment Claims
For the same reasons that Plaintiffs' Complaint fails to state a claim under the FLSA, it
fails to state a claim for relief under Pennsylvania state law, Pennsylvania common law, and
Oregon state law.
A. Count II: Pennsylvania Minimum Wage Act
Unlike the FLSA, for travel time to be compensable under the Pennsylvania Minimum
Wage Act of 1968 ("PMWA"), the travel itself must be "part of the duties of the employee."
Espinoza v. Atlas R.R. Constr. LLC, 657 F. App'x 101, 105 (3d Cir. 2016); see also 43 P.S. §§
333.101-333.115; 34 Pa. Code§ 231.1 (defining "hours worked" as including "time spent
traveling as part of the duties of the employee during normal working hours"). To be considered
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"part of the duties of the employee," courts require "more than simply driving to or from a work
site"; instead, they require employees to be "performing work-related tasks, aside from travel,
during their travel time." Espinoza, 657 F. App'x at 106.
For the same reasons that the Court concluded Plaintiffs cannot establish that commuting
across the picket line in Strom's vans was either a principal activity or integral and indispensable
to a principal activity of their employment, Plaintiffs also have not shown, and cannot show, that
crossing the picket line in Strom's vans was a "duty" of their employment as outlined in Espinoza.
Count II is therefore dismissed.
B. Counts III and IV: Unjust Enrichment and Oregon Minimum Wage Act
Plaintiffs did not separately address ATI' s Motion to Dismiss regarding Counts III and IV
of the Complaint, instead agreeing with ATI that the Oregon Minimum Wage Statute ("OMWS")
is "'virtually identical' to federal law on this issue and that Plaintiffs' unjust enrichment claim is
entirely based on the FLSA, PMW A, and OMWS claims." (Pls.' Mem. Opp'n to Mot. to Dismiss,
ECF No. 35, at 13 n.5 (citing Def. ATl's Mem. Supp. of Mot. to Dismiss, ECF No. 14, at 25-27).)
The Court agrees. Because the Court has already concluded Plaintiffs claims fail under the FLSA
and the PMWA, their claims under the OMWS and for unjust enrichment under Pennsylvania
common law similarly fail. Counts III and IV are dismissed.
III.
Conclusion
For the reasons stated in this Memorandum Opinion, Plaintiffs' allegations fail to state any
plausible claim that their time spent commuting across the picket line was compensable under the
FLSA, the PMWA, the OMWS, or Pennsylvania common law. Accordingly, the Court declines to
adopt the R&R. ATI's Motion to Dismiss, ECF No. 13, is GRANTED in its entirety. Plaintiffs'
Complaint is dismissed as to all Defendants. Because the Court concludes any amendment would
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be futile, this dismissal is with prejudice. All other pending motions are DENIED without
prejudice as moot.
Mark R. Hornak
United States District Judge
Dated: February 28, 2018
cc:
All counsel ofrecord
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