This is an appeal from an order of the District Court granting summary judgment for the defendants in a class action suit brought by over 200 current and former corrections officers against the City of Philadelphia and the City Prisons Commissioner. The officers, seeking overtime compensation under the Fair Labor Standards Act (FLSA) for the time they spent changing into and out of their uniforms, demand $1.4 million in overtime back pay for this change time, along with $1.4 million in liquidated damages, attorneys fees, and a court order requiring change time compensation in the future. For the reasons that follow, we affirm.

The FLSA actually speaks directly to this issue. Under S 207(a)(1), employers must pay their employees an overtime wage for hours worked in excess of forty hours per week. See 29 U.S.C. S 207(a)(1). We assume arguendo, as plaintiffs would have us do, that clothes and uniform change time would ordinarily be included within hours worked.1 Section 203(o), however, provides a specific exclusion from the calculation of hours worked for clothes and uniform change time:

Hours Worked.--In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was 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. S 203(o). The express terms of the relevant collective bargaining agreement in this case do not mention an exclusion of change time from hours worked. The dispositive issue, therefore, is whether there is a"custom or practice under a bona fide collective-bargaining agreement" in the Philadelphia corrections system of excluding change time from compensable hours worked.

Because this is an appeal from the grant of summary judgment in favor of the defendants, in order to succeed on appeal plaintiffs need to demonstrate that there is a genuine issue of material fact as to whether such a"custom or practice under a bona fide collective-bargaining agreement" exists. Judge Waldman, the author of the District Court's opinion, did not think such a genuine issue was created, in light of the following uncontroverted facts:

(1) The City of Philadelphia has not compensated corrections officers for change time for over 30 years.

(2) Every collective bargaining agreement between the City of Philadelphia and the corrections officers' union --the American Federation of State, County and Municipal Employees District Council 33, Local 159B--has been silent as to compensation for uniform change time.

(3) William Turner, one of the lead plaintiffs, served for some time as the union's president. During his tenure (between June 1994 and June 1997), he proposed at several labor management meetings with the Commissioner and Deputy Commissioner of Prisons, and with Philadelphia's Labor Relations Administrator, that change time be made compensable. However, the union did not make this request in formal collective bargaining negotiations. At the same time, the union did ask for and receive a uniform maintenance allowance and overtime compensation for the one hour per week that corrections officers spent at mandatory pre-shift roll calls.

(4) The union never filed a grievance or demanded arbitration based on the non-compensability of change time.

According to Judge Waldman, corrections officers' acquiescence to not being compensated for change time can constitute a "custom or practice under a bona fide collective-bargaining agreement" for purposes ofS 203(o). See Turner v. City of Philadelphia, 96 F. Supp. 2d 460, 461-62 (E.D. Pa. 2000). Judge Waldman believed that the uncontroverted facts listed above sufficed to establish acquiescence on the officers' part. Consequently, he concluded that there was no genuine issue of material fact as to the existence of such a "custom or practice under a bona fide collective-bargaining agreement," and entered summary judgment for the defendants. We agree.

The sole legal issue, both before Judge Waldman and again on this appeal, concerns the proper reading of the phrase "custom or practice under a collective-bargaining agreement." Plaintiffs have insisted that a "custom or practice" within the meaning of S 203(o ) cannot arise unless the particular issue that is the subject of the"custom or practice" was raised in formal collective bargaining negotiations. We have examined the cases cited by plaintiffs in their briefs in support of this proposition, see, e.g., Arcadi v. Nestle Food Corp., 38 F.3d 672, 675 (2d Cir. 1994); Hoover v. Wyandotte Chems. Corp., 455 F.2d 387, 389 (5th Cir. 1972); Williams v. W.R. Grace & Co., Davidson Chem. Div., 247 F. Supp. 433, 435 (E.D. Tenn. 1965); none of these cases, however, makes the existence of formal negotiations a necessary element.2

Plaintiffs' reading of 203(o)'s "custom or practice" exclusion turns heavily on their interpretation of the phrase "under a bona fide collective-bargaining agreement." 29 U.S.C. S 203(o). According to plaintiffs, the phrase "under a bona fide collective-bargaining agreement" means that a "custom or practice" of non-compensability cannot come into being unless (1) the issue of compensability is specifically raised in formal collective bargaining negotiations, and then (2) dropped by the negotiators.3 Stated in a slightly different fashion, plaintiffs argue that they cannot have forfeited their FLSA right to change time compensation time by having failed to contest the Department of Corrections' 30-year-old policy of non-compensability; in their submission, to establish a"custom or practice under a bona fide collective-bargaining agreement" for S 203(o) purposes, one must show a specific abandonment of the compensability issue at a formal negotiation session.

We think that plaintiffs interpret the phrase "custom or practice under a bona fide collective-bargaining agreement" too narrowly, placing undue emphasis on the clause"under a bona fide collective-bargaining agreement" while virtually reading the clause "custom or practice" out ofS 203(o). In essence, plaintiffs construe "custom or practice under a bona fide collective-bargaining agreement" as"custom or practice established through formal collective bargaining negotiations." To the contrary, we view the phrase as simply restating the well-established principle of labor law that a particular custom or practice can become an implied term of a labor agreement through a prolonged period of acquiescence. See, e.g., Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 153-54 (1969); Bonnell/Tredegar Indus., Inc. v. NLRB, 46 F.3d 339, 344 (4th Cir. 1995); Railway Labor Executives Ass'n v. Norfolk & Western Ry. Co., 833 F.2d 700, 705 (7th Cir. 1987); Brotherhood of Maintenance of Way Employees v. Chicago & North Western Transp. Co., 827 F.2d 330, 334 (8th Cir. 1987).

Moreover, as Judge Waldman observed when plaintiffs made this legal contention, plaintiffs have offered no good reason justifying their proposed reading. See Turner, 96 F. Supp. 2d at 463. At oral argument on this appeal, plaintiffs did offer a slim rationale, which we find unpersuasive. Plaintiffs argued that formal negotiations are required for a "custom or practice" of non-compensability to exist because plaintiffs have a pre-existing statutory right under the FLSA to compensation for uniform change time. The fatal flaw in plaintiffs' rationale, however, is its failure to acknowledge that the scope of this FLSA right is specifically cabined by S 203(o)'s "custom or practice" exclusion, i.e., its exclusion from compensable hours worked of "any time spent in changing clothes . . . which was excluded from measured working time . . . by the express terms of or by custom or practice under a bona fide collective-bargaining agreement." 29 U.S.C. S 203(o). The fact that plaintiffs may possess a general, antecedent right under the FLSA to have change time included in compensable hours worked, therefore, is simply irrelevant to the logically subsequent question whether a "custom or practice" of non-compensation existed, thereby triggering S 203(o)'s provision mandating that the change time covered by that "custom or practice" be excluded from compensable hours worked.

Because the uncontroverted facts establish plaintiffs' long-standing acquiescence to a "custom or practice" of the non-compensability of change time, the judgment of the District Court will be affirmed.