In Burnside v. Kiewit Pacific Corporation (9th Cir. 2007) ___ F.3d ___ (June 20, 2007, Case No. 0457134), a group of construction workers filed suit in San Diego County Superior Court, alleging that Kiewit never compensated them for time they spent traveling from designated meeting sites to their jobsites and from those jobsites back to the designated meeting sites; Kiewit required them to undertake this round trip daily; and they were not allowed to get to the jobsites on their own. Because the workers were subject to a collective bargaining agreement, Kiewit removed the case to U.S. District Court, where Judge Marilyn Huff ruled that their wage and hour claims, brought under state law, were preempted by section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a) (which governs suits between employers and collective bargaining units and members).
On appeal, the Ninth Circuit reversed, holding that such claims are not preempted because the claims are based on rights conferred by state law, independent of the collective bargaining agreements, and can be resolved without interpreting the agreements, and thus were not preempted by LMRA § 301. In light of this decision, the trial court's summary judgment, based upon a failure to exhaust administrative rights, and failure to file suit within six months under the LMRA, 29 U.S.C. § 160(b), was granted in error. Writing for a unanimous court, Justice Marsha Berzon went on to explain that this case falls under the rule set forth in Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 578.
The California Supreme Court has recognized an employee’s state law right to be compensated for time spent traveling from a designated meeting point to the jobsite and from the jobsite back to the meeting point, when the employer requires this travel. See Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000) (applying a wage order that covers agricultural employees). Moreover, post-Morillion, the state’s Industrial Welfare Commission (“IWC”) adopted a regulation, known as California Industrial Commission Wage Order 16-2001, that applies this right to the employees in this appeal. See CAL. CODE REGS. tit. 8, § 11160. As a result, because the right to be compensated for employer-mandated travel exists as a matter of state law, independent of the CBAs, on this initial basis at least the employees’ claims are not preempted.
In short, a unionized employee cannot be deprived of the full protections afforded by state law simply by virtue of the fact that her union has entered into a CBA. The court also rejected Kiewit's arguments that the claims are nevertheless preempted by section 301 because they “substantially depend on” an interpretation of the terms of the CBAs; and that the claims are primarily claims for overtime wages, not compensation for compulsory travel time, and thus preempted by section 301 Firestone v. Southern California Gas Co. (9th Cir. 2000) 219 F.3d 1063, where the overtime premium was determined by interpreting a CBA.
Contrary to some news stories and summaries we've read elsewhere, the Ninth Circuit did not hold that the employees were entitled to any pay. The factual inquiry as to liability (did they require such off-the-clock travel) and damages (how many times and for how many hours) will be made, on remand, in state court.