The opinion of the court was delivered by: Hon. George W. Lindberg
MEMORANDUM OPINION AND ORDER
Before the Court are the parties' cross-motions for summary judgment. For the reasons set forth more fully below, Defendant Union Pacific Railroad Company's ("Union Pacific") motion for summary judgment on plaintiff's second amended complaint ("complaint") is granted in part. Plaintiff Brotherhood of Locomotive Engineers and Trainmen, General Committee of Adjustment, Central Region's ("BLET") motion for summary judgment is denied.
This case involves the most recent iteration of a long-standing dispute between the parties regarding Union Pacific's method for calculating through-freight locomotive engineers' ("engineers") eligibility for leave and the amount of available leave time under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601. This Court handled a past dispute between these parties regarding the calculation of FMLA leave. See Brotherhood of Locomotive Engineers v. Union Pacific, Case No. 07 C 160 (J. Lindberg). Since the inception of the 2007 case, the parties have worked, within the confines of the parties' collective bargaining agreement, to reach a compromise regarding their disagreements over the application of the FMLA to the engineers. The parties have made progress and narrowed their disagreement to a single issue addressed below.
The parties and the Court are well-versed on the factual background of this case, so an extensive recitation of the underlying facts is not necessary. All relevant facts are undisputed unless specifically noted below. BLET did not file a response to Union Pacific's Rule 56.1 statement of undisputed facts, so Union Pacific's facts are deemed admitted. Union Pacific and its engineers operate under a collective bargaining agreement, executed under the provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq. Many of the terms of the engineers' employment are governed by that agreement, including pay which is by the mile, not the hour, or day. The agreement also provides that engineers may receive pay for each hour, after an agreed upon number of hours, spent at an away from home terminal. That pay is called "held away" pay.
Union Pacific's Crew Management Services ("CMS") Department administratively manages the schedules of Union Pacific's engineers using a computerized system (the "CMS system"). The engineers are always assigned some type of "status" within the CMS system. There are various status types. "OK" is a status used to indicate that an engineer is ready and available for work.
Union Pacific considers an engineer's time spent in the following statuses as "working hours" for purposes of calculating eligibility for FMLA leave and available FMLA leave: (1) time spent on duty, including deadhead time and limbo time; (2) time spent in mandatory classes, or acting as a peer trainer; (3) paid time spent in "OS" status; and (4) time spent in company officer status. Union Pacific does not consider OK status, rest time, or time spent at an away from home terminal as "working hours" for FMLA purposes. The BLET argues that all time spent in OK status at away from home terminals, both paid and unpaid, should be considered "working hours" for FMLA purposes.
Under Union Pacific's current FMLA leave calculation methodology, Union Pacific determines an employee's "normal workweek" by (1) determining the number of hours worked in the 52-week period proceeding the first FMLA leave request, including the adding-back of any leave taken, then dividing by 52 weeks to get an average number of hours worked in a week, and then (2) multiplying by 12 weeks. The parties agree that this is the correct methodology for calculating available leave.
One of the realities of a job as a through-freight locomotive engineer is spending time, including overnight stays, on the road near the railroad's various away from home terminals. While on OK status at away from home terminals, the engineers are not required to stay at the terminals, or at housing provided by Union Pacific. It is undisputed that the engineers are free to engage in a wide variety of leisure activities and can use their time as they choose, with limited exceptions. Engineers cannot consume alcohol or various drugs, and they must be able to report to work on 1.5 to 3 hours of notice. Being able to report to work includes being rested enough to properly operate a train. Engineers are subject to and can be disciplined for violating certain rules of conduct, but neither party included a list of those rules as an attachment to their summary judgment submissions.
Union Pacific has reduced the engineers' uncertainty about when they will be required to report for duty by creating an automated train lineup system. Engineers can use the internet or a telephone to check the train lineup system. That system provides engineers with estimates of when they might be required for duty. Subject to the foregoing limitations, while in OK status near away from home terminals, engineers are free to, among other things, eat, sleep, golf, fish, boat, exercise, shop, go to the movies, and visit friends.
To succeed on a motion for summary judgment, the moving party must show that the pleadings, depositions, answers to interrogatories, and admissions on file, together with any admissible affidavits do not create a genuine issue of material fact and that it is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In considering these cross-motions for summary judgment, the Court must construe all facts in the light most favorable to the non-moving party and must view all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The sole legal issue before the Court is whether Union Pacific is required to count the time its engineers spend in OK status near away from home terminals as hours worked for purposes of calculating eligibility for FMLA leave and available leave time under the FMLA. The BLET argues that those hours should be counted, while Union Pacific contends that they should not be considered hours worked. This Court agrees with Union Pacific.
Congress passed the FMLA in 1993. Thereafter, at the direction of Congress, the Department of Labor issued implementing regulations regarding the FMLA. See 29 U.S.C. § 2654; 29 C.F.R. § 825.100 et seq. Section 825.110 of the FMLA regulations gives guidance as to the definition of "hours worked." Section 825.110 states that "hours of service is determined according to the principles established under the Fair Labor Standards Act [("FLSA")]for determining compensable hours of work." 29 C.F.R. § 825.110. In Skidmore, the Supreme Court provided guidance for determining whether an employee's time constitutes working time under the FLSA. Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944). The test for what time constitutes "work" involves considering whether the time was spent "predominantly for the employer's benefit or for the employee's." Id. The test requires consideration of contractual agreements between the parties, the nature and extent of restrictions on the employee's time, and surrounding circumstances. Id. "Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours ...