BALLARD v. BHI ENERGY I SPECIALTY SERVICES LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRANDON BALLARD, )

)

Plaintiff, )

)

v. ) Civil Action No. 22-115

)

BHI ENERGY, INC., )

)

Defendant. )

MEMORANDUM OPINION

Plaintiff Brandon Ballard filed this putative class action in the Court of Common Pleas of

Beaver County, Pennsylvania, on December 23, 2021. (Docket No. 1-1 (“Complaint”)). In the

Complaint, Plaintiff asserts a single claim against his employer, Defendant BHI Energy, Inc.,1

alleging that BHI violated the Pennsylvania Minimum Wage Act of 1968 (“PMWA”), 43 P.S.

§ 333.101 et seq., and owes unpaid wages for overtime. BHI timely removed the action to this

Court on January 20, 2022, on the basis of both diversity and federal question jurisdiction.

(Docket No. 1). In its Notice of Removal, BHI asserts that, because the relevant terms and

conditions of Plaintiff’s employment were governed by a collective-bargaining agreement

(“CBA”)2 between BHI and the labor union of which Plaintiff was a member, and because

1 Defendant notes in its brief that Plaintiff improperly names “BHI Energy, Inc.” as the defendant in this

action, but that no such entity exists. (Docket No. 9 at 1 n.1). Defendant explains that it has filed its Motion to

Dismiss as if Plaintiff had named the entity that employed him, “BHI Energy I Specialty Services LLC,” as the

defendant in this action. (Id.). Accordingly, the Court will refer herein to Defendant in this action as “BHI” or

“Defendant.”

2 While a court does not generally consider matters outside of the pleadings in ruling on a motion to dismiss,

it may consider documents that are “integral to or explicitly relied upon in the complaint” or any “undisputedly

authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based

on the document.” In re Asbestos Prods. Liab. Litig. (No. VI), 822 F.3d 125, 133 n.7 (3d Cir. 2016) (internal

citations, quotation marks and emphasis omitted). Here, although the Complaint does not refer to the CBA, it is an

“undisputedly authentic document” that BHI has attached as an exhibit to its Motion to Dismiss. Id. The CBA is

also “integral” to Plaintiff’s claims of unpaid overtime, since the parties’ “dispute unquestionably arises out of

[Plaintiff’s] employment,” which is partly governed by the CBA. Hughes v. United Parcel Service, Inc., 639 F.

resolution of Plaintiff’s claim would require interpretation of the CBA, Plaintiff’s claim in this

action is wholly preempted by Section 301 of the Labor Management Relations Act, 1947

(“LMRA”), 29 U.S.C. § 141 et seq., and is therefore subject to federal jurisdiction. (Docket No.

1, ¶¶ 4-10). BHI has now filed an Amended and Substituted Motion to Dismiss Plaintiff’s

Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a

claim upon which relief can be granted. (Docket No. 9 (“Motion to Dismiss”)). For the reasons

that follow, BHI’s Motion to Dismiss is denied.

I. Background

As the parties are well-acquainted with the factual background of this case, at this

juncture the Court will present an abbreviated version of the facts – as alleged in the Complaint,

and in the light most favorable to Plaintiff – that are relevant to the motion presently before the

Court. Shell Polymers, a subsidiary of Shell Oil Company, is building a 380-acre petrochemical

facility in Monaca, Pennsylvania (“Monaca facility”). (Docket No. 1-1, ¶ 5). BHI is a company

that employed individuals who are paid an hourly wage to perform work at the Monaca facility

(“Hourly Employees”). (Id. ¶ 6). Plaintiff is employed by BHI as an Hourly Employee, and he

worked at the Monaca facility from July 2019 through February 2020. (Id. ¶ 7). Hourly

Employees typically worked over 40 hours per workweek. (Id. ¶ 8). As a matter of policy, BHI

pays Hourly Employees based on the time that transpires between a scheduled start and end time,

with a 30-minute meal break deduction. (Id. ¶ 9).

Hourly Employees, including Plaintiff, are required to be at their initial job assignment

within the Monaca facility at their scheduled start time. (Docket No. 1-1, ¶ 10). Hourly

Employees are also required to park in assigned parking lots, which are located at various sites

App’x 99, 103 (3d Cir. 2016). Therefore, the Court may consider the CBA in connection with BHI’s Motion to

Dismiss.

that require travel to the Monaca facility job site by shuttle. (Id.). At each parking lot, Hourly

Employees must swipe a security badge to enter the shuttle bus loading area, and that time is

recorded for security purposes but not for compensation purposes. (Id.). Hourly Employees

must again swipe a security badge upon arrival at the job site, and that time is also recorded for

security purposes but does not trigger the start of paid time. (Id.). Thus, Hourly Employees’

uncompensated pre-workday activities include waiting at an assigned parking lot for a shuttle

bus, riding a bus from the parking lot to the Monaca facility, reporting to an assigned

facility/lunch area, obtaining and donning personal protective equipment at that area, and

walking or riding in a vehicle onsite from the facility/lunch area to the initial job assignment.

(Id.). No compensation is paid to Hourly Employees until they arrive at the job assignment

location onsite by their scheduled start time. (Id.).

At the end of the workday, all Hourly Employees again swipe their security badges in

exiting the facility prior to boarding shuttle buses to travel back to the assigned parking lots.

(Docket No. 1-1, ¶ 11). At that point, Hourly Employees must still wait for and ride the shuttle

buses to their assigned parking lots, although that time is uncompensated. (Id.). Depending on

the distance between an Hourly Employee’s last job assignment and the assigned facility/lunch

area, additional uncompensated post-workday activities may include walking from the last job

assignment to the assigned facility/lunch area, and doffing and storing personal protective

equipment at that area. (Id.).

Plaintiff states in the Complaint that the PMWA entitles employees to compensation for

all hours worked in a week, and that such compensable time includes all time during which an

employee is required by the employer to be on the premises of the employer, regardless of

whether the employee is actually performing job-related duties while on the premises. (Docket

No. 1-1, ¶ 22 (citing 43 P.S. § 333.104(a)). Plaintiff further notes that the PMWA requires that

employees receive overtime compensation not less than one and one-half times the employee’s

regular rate of pay for all hours worked over 40 in a workweek. (Id. ¶ 23, (citing 43 P.S.

§ 333.104(c)). Plaintiff asserts that BHI has violated the PMWA by failing to pay Plaintiff and

members of the putative class any compensation for required activities before their scheduled

start time and after their scheduled end time during weeks in which their paid hours equaled or

exceeded 40 hours. (Id. ¶ 24 (citing 43 P.S. § 331.104(c) and 34 Pa. Code § 231.1(b)).

BHI removed the case to this Court (Docket No. 1)3 and filed its Motion to Dismiss

Plaintiff’s Complaint for failure to state a claim upon which relief can be granted pursuant to

Rule 12(b)(6) (Docket No. 9), which is presently before the Court. Also before the Court are

BHI’s brief in support of its Motion to Dismiss (Docket No. 10), Plaintiff’s brief in opposition

(Docket No. 19), Defendant’s reply (Docket No. 20), and Plaintiff’s notice of supplemental

authority4 (Docket No. 21). BHI argues that Plaintiff’s PMWA claim is preempted by LMRA

Section 301 and, relatedly, that Plaintiff must exhaust the CBA’s grievance process or otherwise

arbitrate his claim under the terms of the CBA. In response, Plaintiff asserts that resolution of

his PMWA claim does not require an interpretation of any CBA provision, so the LMRA does

not preempt it. Additionally, and relatedly, Plaintiff argues that the pre- and post-workday

3 BHI removed this case on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), and federal

question jurisdiction pursuant to the LMRA, 28 U.S.C. § 1331; 29 U.S.C. § 185(a). Although the Court finds herein

that the LMRA is not applicable to Plaintiff’s PMWA claim, and that the Court therefore does not have federal

question jurisdiction over such claim, the Court has diversity jurisdiction over this matter since the amount in

controversy exceeds $75,000.00 and there is complete diversity of citizenship between Plaintiff (a North Carolina

citizen) and BHI (a business corporation being a resident of the State of Massachusetts). (Docket No. 1).

4 Plaintiff submitted for the Court’s consideration the opinion by the Honorable William S. Stickman IV in

Beauregard v. Broadway Elec. Serv. Corp., Civ. Action No. 2:21-cv-1600, 2022 WL 2293969 (W.D. Pa. June 24,

2022), in which Judge Stickman held that the plaintiff’s PMWA claims were not preempted by the LMRA and

denied the defendant’s motion to dismiss. In his opposition brief, Plaintiff previously drew the Court’s attention to

the opinion by the Honorable David S. Cercone in LaRue v. Great Arrow Builders LLC, No. 2:19cv932, 2020 WL

5747818 (W.D. Pa. Sept. 25, 2020), in which Judge Cercone also denied the defendant’s motion to dismiss, holding

that the plaintiff’s PMWA claims were not preempted by the LMRA. Plaintiff suggests that the facts and claims in

Beauregard and LaRue are strikingly similar to the facts and claims in this case, and the Court agrees.

activities at issue here are forms of compensable work under the PMWA, and since he only

advances his statutory rights thereunder in his claim, the Section 301 preemption doctrine does

not apply and there is nothing to pursue through a grievance procedure and nothing to arbitrate

under the CBA.

II. Standard of Review

In considering a Rule 12(b)(6) motion to dismiss, the factual allegations contained in the

complaint must be accepted as true and must be construed in the light most favorable to the

plaintiff, and the court must “‘determine whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.

2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). While Federal Rule of Civil Procedure

8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled

to relief,” the complaint must “‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555

(internal citation and quotation marks omitted)). Moreover, while “this standard does not require

‘detailed factual allegations,’” Rule 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555); Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

It should be further noted, therefore, that in order to survive a motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The

Supreme Court has noted that a “claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The standard “‘does not impose a

probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise

a reasonable expectation that discovery will reveal evidence of’ the necessary element.”

Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). Moreover, the requirement that a

court accept as true all factual allegations does not extend to legal conclusions; thus, a court is

“‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555 (internal citation and quotation marks omitted)).

III. Legal Analysis

A. Relevant Federal and State Law

Both federal and state laws provide workers with various wage protections. While the

Fair Labor Standards Act of 1938 (the “FLSA”), 29 U.S.C. § 201 et seq., establishes “a national

floor under which wage protections cannot drop,” it does not preclude states from enacting more

beneficial wage and hour laws. Chevalier v. Gen’l Nutrition Ctrs., Inc., 220 A.3d 1038, 1055

(Pa. 2019). Thus, the Pennsylvania Minimum Wage Act provides more generous protections to

employees in the state. See id. Among the PMWA’s protections are requirements that “[e]very

employer shall pay to each of his or her employees wages for all hours worked,” and employees

“shall be paid for overtime not less than one and one-half times the employee’s regular rate

. . . . for hours in excess of forty hours in a workweek.” 43 P.S. § 333.104(a), (c). Furthermore,

“hours worked” has been defined in Pennsylvania by regulation as:

. . . time during which an employee is required by the employer to be on

the premises of the employer, to be on duty or to be at the prescribed work

place, time spent in traveling as part of the duties of the employee during

normal working hours and time during which an employee is employed or

permitted to work; provided, however, that time allowed for meals shall be

excluded unless the employee is required or permitted to work during that

time, and provided further, that time spent on the premises of the employer

for the convenience of the employee shall be excluded.

34 Pa. Code § 231.1(b).

In order to state a plausible claim under the PMWA for unpaid wages, a plaintiff must

sufficiently allege that (1) the plaintiff was an employee, (2) the defendant was the employee’s

employer, and (3) the defendant failed to pay the plaintiff wages as required by the PMWA. See

43 P.S. § 333.104; Wintjen v. Denny’s, Inc., No. 2:19-CV-00069, 2021 WL 5370047 (W.D. Pa.

Nov. 18, 2021). To allege a claim based on unpaid overtime wages, a plaintiff may allege that he

or “‘she “typically” worked forty hours per week, worked extra hours during such a forty-hour

week, and was not compensated for extra hours beyond forty hours he or she worked during one

or more of those forty-hour weeks.’” Bansept v. G & M Auto., 434 F. Supp. 3d 253, 258-59

(E.D. Pa. 2020) (quoting Davis v. Abington Mem’l Hosp., 765 F.3d 236, 243 (3d Cir. 2014)).

Section 301(a) of the LMRA, on the other hand, has been construed by the United States

Supreme Court “to authorize the federal courts to fashion a body of common law for the

enforcement of collective bargaining agreements.” LaRue, 2020 WL 5747818, at *3

(citing Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448, 456 (1957)). In

fact, Section 301 can completely preempt state law claims in certain instances. Section 301

provides as follows:

Suits for violation of contracts between an employer and a labor

organization representing employees in an industry affecting commerce as

defined in this chapter, or between any such labor organizations, 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).

Section 301’s preemptive effect over state law claims has evolved over the years. See

Voilas v. Gen. Motors Corp., 170 F.3d 367, 373 (3d Cir. 1999). In Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202 (1985), the United States Supreme Court described the limits of Section

301’s preemptive impact on state law claims as follows:

Of course, not every dispute concerning employment, or tangentially

involving a provision of a collective-bargaining agreement, is pre-empted

by § 301 . . . . Section 301 on its face says nothing about the substance of

what private parties may agree to in a labor contract. Nor is there any

suggestion that Congress, in adopting § 301, wished to give the

substantive provisions of private agreements the force of federal law,

ousting any inconsistent state regulation. Such a rule of law would

delegate to unions and unionized employers the power to exempt

themselves from whatever state labor standards they disfavored. Clearly,

§ 301 does not grant the parties to a collective-bargaining agreement the

ability to contract for what is illegal under state law.

Id. at 211-12. Accordingly, the Supreme Court held that Section 301 preemption is limited to

instances in which the resolution of a state law claim “is substantially dependent upon analysis of

the [collective-bargaining agreement’s] terms.” Id. at 220. The term “substantially dependent”

has been interpreted as meaning “inextricably intertwined.” Id. at 213.

The Supreme Court further explained Section 301 preemption in Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399 (1988), holding “that an application of state law is pre-empted by

[Section 301] only if such application requires the interpretation of a collective-bargaining

agreement.” Id. at 413. The Supreme Court noted therein that, “even if dispute resolution

pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other,

would require addressing precisely the same set of facts, as long as the state-law claim can be

resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement

for § 301 pre-emption purposes.” Id. at 409-10. Moreover, as the Supreme Court observed in

Livadas v. Bradshaw, 512 U.S. 107 (1994), “[W]hen the meaning of contract terms is not the

subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the

course of state-law litigation plainly does not require the claim to be extinguished.” Id. at 124.

Thus, a state law claim that merely addresses similar facts as those involving a CBA, or that

simply entails consultation of a related CBA, does not depend on “interpretation” of that CBA,

and is therefore not preempted by Section 301.5

B. LMRA Section 301 Preemption and Plaintiff’s PMWA Claim

As explained, supra, the disputed issue underlying Plaintiff’s Complaint is whether time

allegedly spent engaging in certain required work-related activities, before the scheduled start

time and after the scheduled end time of each workday, is compensable under the PMWA.

Specifically, Plaintiff alleges that such compensable activities include waiting at an assigned

parking lot for a shuttle bus, riding the shuttle bus from that parking lot to the Monaca facility,

reporting to an assigned facility/lunch area, obtaining and donning personal protective equipment

at that area, walking or riding in a vehicle from that facility/lunch area to the initial job

assignment, waiting for and riding a shuttle bus back to an assigned parking lot at the end of the

workday, and walking from the last job assignment to the assigned facility/lunch area and

doffing and storing personal protective equipment at that area at the end of the workday.

BHI argues that Plaintiff’s claim alleging unpaid overtime related to such activities

should be dismissed because such time is covered by the CBA and is therefore preempted by

LMRA Section 301. As explained above, however, in order for Plaintiff’s PMWA claim to be

preempted by Section 301, the determination of whether the activities at issue constitute

compensable work (and thus qualify for overtime compensation) under the PMWA would have

to depend on interpretation of the CBA. Therefore, to support its contention that the CBA must

5 The LMRA also precludes certain federal law claims, such as FLSA claims, that require interpretation of a

CBA. See Bell v. SEPTA, 733 F.3d 490, 494 (3d Cir. 2013). Because there is “significant overlap between LMRA

preemption (e.g., LMRA preempting a PMWA claim) and LMRA preclusion (e.g., LMRA precluding a FLSA

claim), courts often rely interchangeably on precedent involving either doctrine.” Beauregard, 2022 WL 2293969,

at *6 n.3 (citing LaRue, 2020 WL 5747818, at *9-10; Oddo v. Bimbo Bakeries USA, Inc., Civ. No. 2:16-cv-04267,

2017 WL 2172440, at *8-9 (D.N.J. May 17, 2017); Phila. Metal Trades Council v. Konnerud Consulting W., Civ.

Action No. 15-5621, 2016 WL 1086709, at *4 (E.D. Pa. Mar. 21, 2016)).

be interpreted in order to resolve Plaintiff’s PMWA claim, BHI cites to certain provisions of the

CBA that govern the extent of shifts and when employees are eligible to receive overtime

compensation. (Docket No. 20-1, ¶¶ 34, 36, 37). BHI argues that these provisions address

“when Plaintiff’s shifts began, when they ended, and whether any portion of his shift would

consist of an unpaid break,” and when overtime compensation is provided. (Docket No. 10 at 6).

Upon review of those CBA provisions, however, the Court notes that, although they address

shifts and overtime payment, it is not apparent that such provisions require “interpretation” by

the Court to determine whether activities involving the shuttle buses are compensable under the

PMWA, nor does BHI explain how or why such provisions must be interpreted in order for the

Court to make such determination. Furthermore, while resolution of Plaintiff’s claim here will

depend on applying certain facts in conjunction with the PMWA’s “hours worked” provision,

discussed above, “consulting” the CBA provisions to consider whether the activities at issue are

clearly excluded from the Hourly Employees’ workday does not equate with “interpreting” the

CBA to determine whether such activities constitute compensable time under the PMWA. See

Beauregard, 2022 WL 2293969, at *6; LaRue, 2020 WL 5747818, at *16 (“‘[T]he mere fact that

we must look at the CBA in order to determine that it is silent on any issue relevant to [a

plaintiff’s] state claims does not mean that we have “interpreted” the CBA.’” (quoting Kline v.

Security Guards, Inc., 386 F.3d 246, 256 (3d Cir. 2004))).

Similarly, Plaintiff claims that he is entitled to compensation under the PMWA for time

spent obtaining, donning, doffing, and storing personal protective equipment, which are also

required work-related activities. Notably, BHI does not attempt to link this aspect of Plaintiff’s

claim directly to any specific provision of the CBA. As Plaintiff points out, whether such

activities are compensable work under the PMWA must be determined by applying the facts of

the case to the PMWA’s “hours worked” regulation, but BHI has shown no reason – nor is the

Court aware of any reason – why such determination would require the interpretation of a

provision of the CBA.

With regard to Plaintiff’s allegation that BHI owes him compensation for time spent

walking from the last job assignment to the assigned facility/lunch area and doffing and storing

personal protective equipment in that area, again, BHI cites to the CBA provisions that address

when shifts began and ended, whether any portion of shifts would consist of unpaid breaks, and

payment of overtime compensation. (Docket No. 20-1, ¶¶ 34, 36, 37). However, BHI fails to

indicate why the Court would need to interpret those particular CBA paragraphs in order to

determine the compensability of time spent engaging in such activities under the PMWA, nor is

the Court aware of any reason why an interpretation of those paragraphs would be necessary in

this regard.

Thus, the resolution of Plaintiff’s claim under the PMWA will involve certain factual

determinations as to the uncompensated pre- and post-workday activities in which Plaintiff was

required to engage, and whether those activities constitute compensable work under the PMWA.

The determination of whether such activities are compensable work under the PMWA “turns on

issues of fact under the PMWA’s regulations defining compensable time.” LaRue, 2020 WL

5747818, at *12. Upon examination of the CBA paragraphs identified by BHI as supposedly

requiring interpretation in order to determine whether those activities are compensable work

under the PMWA, as well as after consideration of the CBA as a whole, the Court finds no

relevant provisions that require interpretation by the Court in order to make such determination

as BHI contends.

BHI makes two additional arguments related to LMRA Section 301 preemption, neither

of which have merit. First, BHI asserts that Plaintiff cannot file his PMWA claim without

exhausting the CBA’s grievance procedures. Although BHI does not cite to a specific CBA

provision that pertains to such procedure, Plaintiff points out a provision of the CBA that lists a

series of steps and provides, “Where a disagreement exists between the Union and the Employer

concerning the meaning, interpretation or operation of this Agreement . . . it shall be resolved in

accordance with the grievance procedure outlined in this Agreement.” (Docket No. 20-1, ¶ 49).

However, the cases cited by BHI in support of its exhaustion argument concern claims

involving Section 301 in which employees explicitly allege that a CBA had been breached. See,

e.g., Prof’l Emergency Med. Servs. Ass’n of N.J. v. Monmouth Ocean Hosp. Servs. Corp., 680 F.

App’x 100, 104-05 (3d Cir. 2017); Koshatka v. Phila. Newspapers, Inc., 762 F.2d 329, 332 (3d

Cir. 1985); Pickett v. Ocean-Monmouth Legal Servs., Inc., Civ. No. 11-6980, 2012 WL 254132,

at *3 (D.N.J. Jan. 27, 2012); Carpenter v. Wawa, Civ. Action No. 09-2768, 2009 WL 4756258,

at *3 (E.D. Pa. Dec. 3, 2009). Here, in contrast, Plaintiff is not alleging a Section 301 claim and

is not relying on an alleged breach of the CBA, but is instead bringing a claim under the PMWA

alleging a violation of his statutory rights. Further, as explained, supra, the disputed issue in this

case does not involve an interpretation of the CBA that has any impact on Plaintiff’s PMWA

claim. See, e.g., Bell v. SEPTA, 733 F.3d 490, 494-95 (3d Cir. 2013) (holding that plaintiffs did

not have to exhaust a CBA grievance provision before filing their FLSA claim because “there

exists no dispute over the interpretation or application of any of the provisions of the CBAs that

has any impact on the . . . FLSA claim”). Therefore, the Court finds that Plaintiff is not required

to exhaust the CBA’s grievance procedure before bringing his PMWA claim in court.

Second, BHI argues that Plaintiff’s PMWA claim is subject to mandatory arbitration

under the CBA. However, similar to its exhaustion argument, BHI’s arbitration argument relies

on the assumption that Plaintiff’s PMWA claim depends upon the Court needing to interpret the

CBA, which the Court has found to be false, supra. Further, although the CBA may address the

subject of Plaintiff’s compensation and job duties, as BHI points out, that fact alone does not

dictate that Plaintiff’s claim is subject to mandatory arbitration under the CBA. See, e.g., Jones

v. Does 1-10, 857 F.3d 508, 512 (3d Cir. 2017) (holding employees were not required to arbitrate

their FLSA claim because it did not depend upon a disputed interpretation of a CBA). In fact,

the CBA itself provides, “The arbitrator shall only have jurisdiction and authority to interpret,

apply or determine compliance with the provisions of this Agreement and shall not have

jurisdiction or authority to add to or detract from or alter in any way this Agreement.” (Docket

No. 20-1 at 13). As the Court has already determined that Plaintiff is not alleging a violation of

the CBA, nor must the Court interpret the CBA in considering Plaintiff’s claim, the Court finds,

accordingly, that Plaintiff is not bound by the CBA’s arbitration provision in resolving his claim

and may pursue his PMWA claim in court.

In conclusion, the Court finds that Plaintiff has adequately pled a violation of his

statutory rights under the PMWA in that he has alleged that he is an employee, that BHI is his

employer, and that he typically worked a forty-hour week but engaged in activities pre- or post-

workday, which were outside the scope of compensation under the CBA, but which qualified as

compensable work, for which he was not paid. Additionally, the Court finds that Plaintiff’s

PMWA claim is not preempted by LMRA Section 301, nor must Plaintiff exhaust the CBA’s

grievance procedures before filing his PMWA claim, nor is Plaintiff bound by the CBA’s

arbitration provision in resolving his claim. Plaintiff does not claim any right to be compensated

for pre- or post-workday activities under the terms of the CBA, but, rather, the CBA may provide

evidence of a compensation policy that clearly excludes from his compensable workday the time

spent engaging in such activities. Instead, Plaintiff’s sole claim is that he, and other similarly

situated Hourly Employees, are entitled to compensation for activities involving parking shuttles,

travel onsite, and donning and doffing personal protective equipment as a matter of statutory

right – independent of the CBA – under the PMWA.

Therefore, the Court finds that Plaintiff has stated a plausible claim upon which relief can

be granted against BHI under the PMWA, and BHI’s Motion to Dismiss Plaintiff’s Complaint is

denied.

IV. Conclusion

For the reasons stated, BHI’s Motion to Dismiss Plaintiff’s Complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure is denied.

An appropriate Order follows.

Dated: September 26, 2022 s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record