Beauregard v. Broadway Elec. Serv. Corp.

• Decision Date: 24 June 2022
• Docket Number: Civil Action 2:21-cv-1600
• Parties: JUSTIN BEAUREGARD, Plaintiff, v. BROADWAY ELECTRIC SERVICE CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

JUSTIN BEAUREGARD, Plaintiff,
v.
BROADWAY ELECTRIC SERVICE CORPORATION, Defendant.

Civil Action No. 2:21-cv-1600

United States District Court, W.D. Pennsylvania

June 24, 2022

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, UNITED STATES DISTRICT JUDGE

Plaintiff Justin Beauregard (“Beauregard”) filed this putative class action under the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. §§ 333.101-333.115, against Defendant Broadway Electric Service Corporation (“BESCO”) in the Court of Common Pleas of Beaver County, Pennsylvania. In the single-count Complaint, Beauregard asserts, on behalf of himself and others similarly situated, that BESCO violated the PMWA by failing to pay overtime wages to hourly employees for required activities before their scheduled start time and after their scheduled end time. (ECF No. 1-1, ¶¶ 19-24). BESCO removed the case to this Court. See 28 U.S.C. § 1441. (ECF No. 1). It then filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting that Beauregard's PMWA claim is preempted by Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185. (ECF No. 8). For the reasons below, the Court holds that the PMWA claim is not preempted by LMRA. Accordingly, BESCO's Motion to Dismiss will be denied.

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I. BACKGROUND

Shell Polymers, a subsidiary of Shell Oil Company, is currently constructing a large petrochemical facility in Monaca, Pennsylvania (“Monaca facility”). (ECF No. 1-1, ¶ 5). Work at the Monaca facility is governed by a Project Labor Agreement (“PLA”), which consists of several collectively bargained agreements, including the National Construction Agreement and various addendums, interpretations, and memoranda of understanding. (See ECF No. 9-1).^[1] The PLA requires contractors to employ “members of the local construction unions” and sets forth the terms and conditions of employment at the Monaca facility. (Id. at 3). Several provisions of the PLA-specifically, the Site Conditions Addendum-are relevant here:

3) Hours of Work-Article 8-

a) Except as provided in subsection d, the first shift shall consist of eight (8) or ten (10) hours per day between the hours of 6:00 a.m. and 5:30 p.m., plus one-half (1/2) hour for unpaid lunch, approximately mid-way through the shift Forty (40) hours per week shall constitute a regular week's work, whether consisting of five (5) eight (8) hour days, or a four (4) ten (10) hour days. A uniform starting time will be established for all crafts on each project or segment of work

c) Employees shall be at their place of work at the starting time and shall remain at their place of work (as designated by the Employer) performing their assigned functions until quitting time, which is defined as the scheduled end of the shift. Employees are in on Employee time and out on Employer Time. The

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parties reaffirm their policy of a fair day's work for a fair day's wage. There shall be no pay for time not worked unless the employee is otherwise engaged at the direction of the Employer. Due to the magnitude of the Project and congestion of the site, staggered starting times may be required. If necessary, these starting times would be between 6:00 a.m. and 8:00 a.m. This policy could help reduce the transportation problems at start and completion times.

d) Employer Furnished Transportation- e.g. from a remote parking lot or common park and ride area, the employer will furnish transportation to the project entrance prior to the shift starting time and the Employer will furnish transportation from the exit gate to the remote parking facility or park and ride location at the shift quitting time. All transportation by the Employer will be on employee's time. There will be no compensation. Bus Schedules will be established prior to the pre-job conference and included in the pre-job conference meeting with the Building Trades, to ensure the bus schedules afford employees to arrive at the gate prior to the beginning of shift. The Employer will provide timely transportation, when employees exit the project gates at the end of the shift, back to the remote parking or park and ride area. There will be no compensation.

e) Overtime shall be defined as all hours worked in excess of forty (40) hours in a week, or for 8-hours shifts, for work in excess of 8 hours per day; or for 10-hour shifts, for work in excess of 10 hours per day; such work and work performed on Saturday shall be paid at one and one-half times the straight time rate of pay, provided the employee has worked forty (40) hours since the start of the work week....

7) General Working Conditions-Article 18-

a) Employees shall be at their assigned place of work (as designated by the Employer) with their tools and ready to begin work at the starting time and shall remain at their place of work performing their assigned functions under the supervision of the Employer (s) until quitting time.

8) Safety-Article 19-

a) Employees are required to provide and wear safety boots that are above the ankle, lace up style with protective toe-caps and non-perforating midsoles compliant with ANSI Z41-1991. No compensation will be paid for craft providing their own work boots.

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b) Long sleeve shirts are required by all personnel. Specific employees performing specific skills will be required to be uniform in appearance e.g. Flaggers in red vests, Fire Watches in orange vests, Riggers in green vests, HSSE personnel in red hard hats, etc. as defined by the Employer. Each craft worker will be identified by trade using color band around the hard hat to distinguish the trade, and foreman will be identified using a single vertical stripe of the same color on each side of the hard hat, and General Foreman will be identified using two vertical stripes of the same color on each side of the Hard Hat. Hard Hats will be identified on the front of the hat with the Employer logo and the first name of the employee with his/her craft and badge no. on the back of the hard hat.

c) When process hydrocarbons are present on site, employees will be required to wear “Employer Provided” Fire Retardant Clothing (RFC).

(ECF No. 9-1, pp. 56-57, 62-64). The PLA also contains a “Grievance Adjudication Procedure” that applies “in the event any disputes arise out of the interpretation of this Agreement.” (Id. at 90). Specifically, the PLA provides that any grievance must be “called to the attention” of the employer or the union “within five (5) calendar days after the alleged violation was committed.” (Id.). Thereafter, grievances are subject to a multi-step review process involving union and employer representatives and must ultimately be resolved through “final and binding arbitration.” (Id.).

BESCO, an electrical services contractor, employed individuals who were paid an hourly wage to perform work at the Monaca facility. (ECF No. 1-1, ¶¶ 2, 6). Beauregard was one such employee, and he actively worked at the Monaca facility on a full-time basis from January 2021 to September 2021. (Id. ¶ 7). Beauregard's employment was thus subject to the PLA. Beauregard alleges that he and other hourly employees “typically worked over 40 hours per workweek.” (Id. ¶ 8). However, according to Beauregard, BESCO failed to pay “any compensation for required activities before their scheduled start time and required activities after their scheduled end time.” (Id. ¶ 24). Pre-start time activities included “waiting at an assigned

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parking lot for a shuttle bus, riding a shuttle bus from the parking lot to the Monaca facility, reporting to an assigned facility/lunch area, obtaining and donning personal protective equipment at the facility/lunch area, and walking or riding a vehicle onsite from the facility/lunch area to the initial job assignment.” (Id. ¶ 10). Post-end time activities were the same, but in reverse-i.e., “walking from the last job assignment to the assigned facility/lunch area,” “doffing and storing personal protective equipment at the facility/lunch area,” and “waiting for and riding the shuttle bus to the assigned parking lot.” (Id. ¶ 11). Beauregard further alleges that “[p]arking at the assigned parking lot [was] required.” (Id. ¶ 10). There, employees were “required to swipe a security badge to enter the shuttle bus loading area.” (Id.}. “This time [was] recorded for security purposes (but not compensation purposes).” (Id.}. Upon arrival at the job site, employees [were] again required to swipe a security badge, “but [that did] not trigger the start of paid time.” (Id.}. Rather, until the employees “arrive[d] at the job assignment location on site by the scheduled start time, no compensation [was] paid.” (Id.).

In October 2021, Beauregard filed suit in state court on behalf of himself and other hourly employees of BESCO who worked at the Monaca facility “during the past three years.” (Id. ¶ 12). He asserts that BESCO's failure to pay them overtime wages for required activities violated the PMWA. (Id. ¶ 24). See 43 P.S. §§ 333.104, 333.113. BESCO removed the case to this Court^[2] and subsequently filed a Motion to Dismiss under Rule 12(b)(6). (ECF Nos. 1, 8).

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II. STANDARD OF REVIEW

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must accept all well-pleaded factual allegations as true and view them in the light most favorable to a plaintiff. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); see also DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262-63 (3d Cir. 2008). Although a court must accept the...