MEMORANDUM
The plaintiffs, on behalf of themselves and 231 others, are suing the City of Philadelphia and Thomas Costello, the City Prisons Commissioner, for compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). Plaintiffs are current or former correctional officers in the City prison system. They seek $1.4 million in overtime back pay for time spent changing into and out their uniforms, another $1.4 million in liquidated damages, attorney fees and a court order requiring the City to pay for change time hereafter. Plaintiffs claim that the City’s failure to I compensate them for this change time constitutes a violation of the FLSA. 1
*461 Presently before the court is defendants’ motion for summary judgment.
Under the FLSA, employers may employ an employee for no longer than forty hours per week unless such employee receives overtime compensation for the additional time at a rate of at least one and one-half times the employee’s regular rate of pay. See 29 U.S.C. § 207(a)(1). There is an exception to this general rule, however, for employees who are employed under a bona fide collective bargaining agreement. In determining the number of hours for which an employee is employed, “there shall be excluded any time spent in changing clothes” when such time is “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. § 203(o).
It is uncontroverted that there is no express provision regarding compensation for uniform change time in the collective bargaining agreement governing the parties’ employment relationship. The controlling issue is whether the uniform change time is excluded from compensable work hours because of a “custom or practice under a bona fide collective-bargaining agreement.”
From the competent evidence of record, as uncontroverted or otherwise viewed in the light most favorable to plaintiffs, the pertinent facts are as follow.
Defendants require correctional officers to wear official uniforms while performing their jobs. The officers are prohibited from wearing their uniforms while off-duty or while off of prison property and thus must change into and out of their uniforms on prison premises. Plaintiffs spent or spend two and one-half hours per week on average changing into and out of their uniforms. This time is not included in their scheduled work shifts.
City correctional officers are organized under the American Federation of State, County and Municipal Employees District Council 33, Local 159B (the “Union”), and are employed pursuant to a collective bargaining agreement between the Union and the City. Every collective bargaining agreement between the parties over a period of thirty years, including the current one, has been silent as to compensation for uniform change time.
In his then capacity as President of the Union, William Turner proposed compensation for change time to the Commissioner and Deputy Commissioner in labor management meetings. 2 In Mr. Turner’s words, this also “was one of the things that had been brought to the table” in discussions with William Grab, then Labor Relations Administrator for the City. The Union, however, elected not to press for compensation for uniform change time in formal collective bargaining negotiations. The Union did formally negotiate for other uniform related and pre-shift compensation. The Union secured a uniform maintenance allowance and overtime compensation of one hour per week for time correctional officers spent at required pre-shift roll calls.
Neither the FLSA nor its implementing regulations define the terms “custom” and “practice.” The term “custom” suggests an “ongoing understanding with some continuity,” or “an ongoing, even if recent, course of conduct.”
Arcadi v. Nestle Food Corp.,
For some thirty years, with the Union’s acquiescence, the City has not compensated correctional officers for change time. This clearly constitutes a custom and practice.
See Hoover v. Wyandotte Chemicals Corp.,
Neither the statute nor the regulations define the term “under a bona fide collective-bargaining agreement,” and no court has squarely defined the term. Plaintiffs rely on a few cases in which courts noted some history of negotiation regarding change time which had in fact occurred. No court, however, has held that the absence of such formal negotiations precludes the existence of a requisite custom or practice.
In one of the cases relied on by plaintiffs, the Court discussed negotiations regarding change time in the context of rejecting plaintiffs’ contention that such negotiations obviated an existing custom and practice.
See Hoover,
In another case, the Court discussed negotiations regarding change time because it was in the course of such negotiations that an understanding sufficient to constitute a practice arose.
See Arcadi,
Also somewhat instructive are cases arising under the National Labor Relations Act or Railway Labor Act in which courts concluded without reference to actual negotiation that a particular practice or custom can become an implied term of employment through long-standing acquiescence.
See Detroit & Toledo Shore Line R. Co. v. United Transp. Union,
Plaintiffs have offered no reason to distinguish between acquiescence without formal negotiation and acquiescence after formal negotiation, and such a distinction is not logical. It is illogical to find acquiescence from an unsuccessful attempt formally to negotiate for compensated change time but not from a decision to forego even an attempt to secure such compensation through formal negotiation after unsuccessful informal requests.
The parties’ employment relationship is governed by a collective bargaining agreement. Uniform change time is the type of activity which ordinarily would 'be discussed during collective bargaining negotiations by any union inclined to do so. The Union has negotiated for overtime compensation for pre-shift roll calls and recompense for uniform maintenance.
The correctional officers were well aware that uniform change time was not compensated by the City. The City has never compensated for uniform change time throughout the life of the collective bargaining relationship. The President of the Union requested compensation for change time at labor management meetings. The Union elected not to press the issue in formal collective bargaining negotiations, and never filed a grievance or demanded arbitration regarding this matter. The City’s correctional officers have acquiesced over a long period of time in the clothes change policy.
The court concludes that there is a custom and practice in the context of a collective bargaining relationship and under a bona fide collective bargaining agreement to exclude uniform change time from the compensable work hours of City correctional officers. Accordingly, § 203(o) is applicable and defendants are, entitled to summary judgment.
Notes
. Interestingly, the lead plaintiff, William Turner, did not work as a correctional officer during the time period covered by this lawsuitl and no longer works for City. He would nol| *461 be entitled to recover even if plaintiffs were to prevail.
. Mr. Turner was President of the Union for three years between June 1994 and June 1997.