Tyger v. Precision Drilling Corp.

• Decision Date: 11 April 2018
• Docket Number: No. 4:11–CV–01913,4:11–CV–01913
• Parties: Rodney TYGER and Shawn Wadsworth, on behalf of themselves and those similarly situated, Plaintiffs. v. PRECISION DRILLING CORP., et al., Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

308 F.Supp.3d 831

Rodney TYGER and Shawn Wadsworth, on behalf of themselves and those similarly situated, Plaintiffs.

v.PRECISION DRILLING CORP., et al., Defendant.

No. 4:11–CV–01913

United States District Court, M.D. Pennsylvania.

Filed April 11, 2018

Joshua S. Boyette, Justin L. Swidler, Richard S. Swartz, Nicholas D. George, Swartz Swidler LLC, Cherry Hill, NJ, Travis Martindale–Jarvis, Pro Hac Vice, Swartz Swidler LLC, Philadelphia, PA, for Plaintiffs.

Mark T. Phillis, Pro Hac Vice, Marcy L. McGovern, Terrence H. Murphy, Pro Hac Vice, Emilie R. Hammerstein, Littler Mendelson, P.C., Jeremy A. Mercer, Blank Rome LLP, Pittsburgh, PA, Michael P. Gaetani, Norton Rose Fulbright US LLP, Canonsburg, PA, Michael C. Crow, Greg Moore, Pro Hac Vice, Jamila S. Mensah, Kimberly F. Cheeseman, Norton Rose Fulbright US LLP, Houston, TX, Joseph C Dole, Norton Rose Fulbright US LLP, New York, NY, for Defendants.

MEMORANDUM OPINION

Matthew W. Brann, United States District Judge

Plaintiffs Rodney Tyger and Shawn Wadsworth, on behalf of themselves and those similarly situated, and Defendants Precision Drilling Corp., Precision Drilling Oilfield Services, Inc., and Precision Drilling Company, LP have filed cross-motions for partial summary judgment. For the reasons discussed below, Defendants' Motion is granted in part and denied in part, and Plaintiff's Motion is denied.¹

I. INTRODUCTION

This case has long history before the Court. Named Plaintiffs Rodney Tyger and Shaun Wadsworth ("Plaintiffs"), on behalf of themselves and those similarly situated, filed this Fair Labor Standards Act ("FLSA") collective action complaint on October 17, 2011.² Plaintiffs filed an amended complaint on January 4, 2012,³ and Defendants Precision Drilling Corp., Precision Drilling Oilfield Services, Inc., and Precision Drilling Company, LP ("Defendants") answered on February 7, 2012.⁴

Defendants thereafter moved for summary judgment on all claims on February 29, 2012,⁵ and Plaintiffs moved to conditionally certify a collective action on February 24, 2012.⁶ The Honorable Christopher C. Conner of this Court, to whom the matter was originally assigned, denied Defendants' motion for summary judgment on December 18, 2012 "without prejudice to defendant's right to refile such a motion at the close of discovery."⁷ On January 7, 2013, Chief Judge Conner conditionally certified a class of "all Precision hourly rig employees who worked for Precision in the United States within the last three years" based on the three FLSA claims identified in the Amended Complaint.⁸ Approximately 1,000 hourly, non-managerial employees have since joined this suit.⁹

On January 17, 2013, this matter was reassigned to me. Following an extensive discovery period, including expert discovery, the parties both moved for summary judgment. Defendants filed a motion for partial summary judgment on April 10, 2017.¹⁰ In this motion, Defendants argue that no genuine issue of material fact exists and they are therefore entitled to summary judgment because: (1) the time Plaintiffs spent donning and doffing personal protective equipment was not compensable; and (2) the Plaintiffs' post-donning and pre-doffing walking time was not compensable.¹¹ This matter has been fully briefed and is now ripe for disposition.¹²

Plaintiffs cross moved for summary judgment on April 14, 2017.¹³ In this Motion, Plaintiffs request that the Court find, as a matter of law, that "(1) Plaintiffs' donning, doffing, and inspecting personal protective equipment ("PPE") was integral and indispensable to their jobs and therefore constituted "work" as a matter of law; (2) Walking and waiting time following the donning and prior to the doffing is compensable as a matter of law—as well as unpaid meeting / shift-change time beyond the paid shift; [and] (3) Time spent in required safety and changeover meetings constituted "work" as a matter of law."¹⁴ This matter has been fully briefed and is ripe for disposition.¹⁵

II. FACTUAL BACKGROUND¹⁶

Defendants Precision Drilling Corp., Precision Drilling Oilfield Services, Inc., and Precision Drilling Company, LP ("Defendants") operate oil and gas drilling rigs under contract with oil and gas producers, known as "operators."¹⁷ On drilling rigs operated by Defendants, rig hand staffing includes the positions of floorhand (leasehand), motorhand, derrickhand, driller, and rig manager (collectively "rig hands").¹⁸ Each of Defendants' rigs are staffed by two of these crews, with each crew scheduled for a twelve hour shift followed by either a quarter hour or half hour pre-tour safety meeting.¹⁹ Rig hands work for multiple weeks in a row at more than twelve hours a day. They therefore work significantly more than 40 hours per week.²⁰

Rig hands who work more than forty hours in a week are compensated at one and a half times their regular hourly rate.²¹ As additional compensation, hourly rig hands receive a flat amount of money for each day spent working with oil based mud or synthetic based mud.²² This reimbursement is primarily for the additional cost of more frequent boot replacements.²³ The crux of this dispute rests on whether (1) shifts are actually completed within that time frame, (2) pre-shift meetings were compensated before mid–2010, (3) employees performed work before and after those shift times, and (4) employees' shifts accurately and regularly pay for all time worked.²⁴

The daily routine of a rig hand on Defendants' well sites is as follows. On some rigs, the crew's scheduled work time commences with a joint meeting with the outgoing crew in the "dog house," or an elevated centralized building located on the rig.²⁵ Prior to that meeting, the incoming crew dons their basic PPE.²⁶ On other rigs, the incoming crew's shift begins with a pre-tour safety meeting in the company man's trailer, rig manager's trailer, or the safety trailer.²⁷ The routine for outgoing crews similarly varies depending on whether this changeover meeting is held. If a changeover meeting is held, the outgoing crew goes to the dog house prior to 6:00 a.m./p.m., and leaves after the meeting has concluded.²⁸ If a changeover meeting with both crews is not held, then the outgoing crew members are relieved individually by the incoming crew members.²⁹ Attendance at these pre-tour meetings, regardless of the form taken, is mandatory.³⁰

The basic PPE for rig hands includes steel toed boots, a hard hat, safety glasses, fire retardant coveralls ("FRC"), gloves, and ear plugs.³¹ The PPE is required by both Defendants' policy³² and the Occupational Health and Safety Administration.³³ It is worn to avoid common hazards of the worksite, including (1) Chemicals, (2) Electrical Shock, (3) Flying debris, (4) Gases—pressurized and nonpressurized, (5) Dropped objects, (6) Overhead equipment, (7) Rotating equipment, (8) Slippery surfaces, (9) Suspended loads, and (10) Working at heights.³⁴

One particular risk to the travails of rig hands are "tripping pipe" operations performed by a derrickhand.³⁵ During these operations, drilling pipe, weighing approximately 500 pounds and drill collars ranging from 2,700 pounds to 5,000 pounds, is lifted by elevator and secured before ultimately being lowered into the bore hole for drilling.³⁶ During this operation, the derrickhand works in an elevated monkeyboard and is harnessed with a 60' fall protection rope.³⁷ In this position, he maneuvers these large pipes into position.³⁸ The additional PPE used in this operation, including the fall protection rope, is not at issue in this suit.³⁹

Defendants' drilling rigs also use a variety of different types of drilling mud, including water-based mud, oil-based mud, and gel-based mud.⁴⁰ Gel-based mud includes caustic.⁴¹ Oil-based mud, on the other hand, commonly contains diesel fuel.⁴² Water-based mud does not contain diesel fuel or other petroleum based products.⁴³ Defendants have explained the risk of chemicals used in drilling muds, including "caustic," as follows:

Precision admits that its drilling operations at times involve the use of caustic and synthetic based mud, and the mixing of caustic and of additives in mud. Precision further admits that caustic is a common name for sodium hydroxide, used mainly to control pH in water based mud, and is a strong alkali that will cause severe burns to eyes, skin and respiratory tract . If an employee is exposed to caustic or its mixing in mud without proper PPE, such as rubber aprons and gloves, possibly use of a respirator, and safety glasses, then exposure can be harmful to an employee's health. Precision admits that exposure to synthetic based mud can be harmful to an employee's health and that harm to an employee's health is likely if, in the mixing process for synthetic based mud, the correct PPE, such as rubber aprons and gloves, and safety glasses, is worn. Precision admits that hundreds of different additives to mud may be used and exposure to the mixing of some of them can be harmful to an employee's health, but denies that harm is likely if proper PPE, like rubber aprons and gloves, in some cases respirators, and safety glasses, is worn.⁴⁴

Plaintiffs' expert, Ronald E. Bishop, Ph.D., himself states that drilling fluids used on Defendants' rigs contain glycol ethers, such as 2–butoxyethanol, which can disrupt red blood cells and potentially cause endocrine disruption.⁴⁵ Defendants, in turn, dispute the commonality of this finding concerning drilling fluids and, in the alternative, advance the conclusion of John M. DeSesso, Ph.D that 2–butoxyethanol exposure "does not cause injury to the testes or ovaries, does not cause teratogenicity, and is not a reproductive toxicant at reasonably anticipated human exposures."⁴⁶

During any given shift, rig hands get their dirt, mud, drilling mud, grease, lubricants, and other substances on their PPE.⁴⁷ While the extent to which PPE gets soiled depends on what rig operations are occurring and the position held by the employee,⁴⁸ Defendants do not dispute that the...