2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-21-2001

Turner v. Philadelphia

Precedential or Non-Precedential:

Docket 00-1519

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

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Turner v. Philadelphia" (2001). 2001 Decisions. Paper 187.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/187
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 noncompensability; 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 clotheschanging 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 

 9