Burnside v. Kiewit Pacific Corp., 04-57134.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation491 F.3d 1053
Docket NumberNo. 04-57134.,04-57134.
PartiesRobert BURNSIDE; Francisco Gomez; Ray Arnett, Individually, on behalf of themselves and all others similarly situated; Charles Lingenfelter; Ron Crues; Charles R. Williams, Individually, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. KIEWIT PACIFIC CORPORATION, a Delaware Corporation; Does, 1 through 100 inclusive. Defendants-Appellees.
Decision Date20 June 2007

George F. Schaefer, Law Offices of George F. Schaefer, San Diego, CA, for the plaintiffs-appellants.

Thomas R. Kaufman, Seyfarth Shaw LLP, Los Angeles, CA, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CV-04-01745-MLH.


BERZON, Circuit Judge:

The named plaintiffs in this case (whom we will call "Burnside," for the first named plaintiff) represent approximately 270 former and current employees of defendant Kiewit Pacific Corporation ("Kiewit"). Burnside alleges that Kiewit never compensated the employees for time they spent traveling from designated meeting sites to their jobsites and from those jobsites back to the designated meeting sites. Kiewit, Burnside further alleges, required them to undertake this round trip daily; they were not allowed to get to the jobsites on their own. This appeal requires us to decide a single question: Whether the employees' claims, brought under state law, are preempted by section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a). We hold that they are not, reverse the district court's decision to the contrary, and remand with instructions to remand to the Superior Court of San Diego County.


Robert Burnside, Francisco Gomez, Ray Arnett, Charles Lingenfelter, Ron Crues, and Charles Williams, along with approximately 265 additional members of a putative class, are all current and former Kiewit employees. Over a four-year period that began around October 20001 these employees worked to install duct and fiber optic lines on two Kiewit projects: (1) the Santee-Yuma Project, linking Santee, California to Yuma, Arizona; and (2) the Victorville-Prim Project, linking Victorville, California, to Prim, Nevada.

According to the complaint, Kiewit prohibited its employees from reporting directly to their daily jobsites. Instead, the employees working on the Santee-Yuma Project were required to meet at a designated site in either Alpine, California or El Centro, California; employees working on the Victorville-Prim Project were required to meet at a Barstow, California site. At these designated meeting sites Kiewit's managers instructed the employees "on the day's tasks" and had them "retrieve equipment and plans for use on the Fiber Optic Projects." Once these initial meetings concluded, the employees traveled in company vans or pickup trucks, frequently operated by the employees themselves, to their jobsites. At the end of the work day, employees re-boarded these vans and trucks to return to the original meeting sites. The complaint alleges that Kiewit managers told employees working on the Santee-Yuma Project that the reason for this arrangement was "a shortage of parking spaces" at the jobsite.2

Burnside estimates that the combined meeting and travel time added two to two-and-one-half hours of work to each employee's day. Burnside also represents that each employee already worked more than eight hours every day and more than forty hours every week, so the meeting and travel time constituted overtime; as a result, Burnside maintains, Kiewit must pay the employees the overtime wage rate for those hours. In total, Burnside "conservatively estimate[s]" that Kiewit owes the employees more than $16 million in wages.


At all times relevant to this litigation, many of the terms and conditions of each employee's work for Kiewit were governed by one of five collective bargaining agreements ("CBAs"). Because these CBAs will feature prominently in our subsequent analysis, we describe them here. We first identify the CBAs, and for ease of reference, assign each a number:

Agreement 1: Associated General Contractors of America, San Diego Chapter, Inc. & International Union of Operating Engineers, Local Union No. 12

Agreement 4: Associated General Contractors of California, Inc. & International Union of Operating Engineers, Local Union No. 12
Agreement 5: Southern California General Contractors & The Southern California District Council of Laborers

Each CBA is fairly extensive, covering, among other things, the length of a typical shift, holidays and vacation time, and the payment of overtime wages. For our purposes, we focus on those terms and conditions related to transportation and parking, two topics that are addressed differently in different CBAs:

Three of the five CBAs—Agreements 1, 4, and 5—use the following language, which we take directly from Agreement 1, or a slight variant thereof:

4. Employees shall travel to and from their daily initial reporting place on their own time and by means of their own transportation.3 The Contractor shall be responsible for payment of wages from the reporting point (parking area), as ordered by the Contractor to the jobsite and from job-to-job and return. However, employees who voluntarily report to a point for free transportation to the jobsite will not be compensated for the time in route and return. . . .

5. Whenever, because of remoteness of parking areas, hazardous road conditions or security restrictions, the Contractor is required to furnish transportation for workmen within his jobsite to the place of their work, this transportation shall be equipped with seats and handrails.4

(Emphasis added.) In other words, although Agreements 1, 4, and 5 first establish that each employee is responsible for his own transportation to a "daily initial reporting place," they also make clear that the "Contractor" is "responsible for payment of wages" for round-trip commutes from "the reporting point . . . to the jobsite," unless the employee has reported to that initial meeting point "voluntarily."

The other two CBAs—Agreements 2 and 3—include only the following language regarding transportation and parking:

Employees shall travel to and from work on their own time and by means of their own transportation.

. . .

In the event free parking facilities are not available within three hundred and fifty (350) yards of a jobsite, the Employer will provide such facilities and shall have the right to designate parking areas to be used. Where, because of congested parking conditions, it is necessary to use public facilities, the Employer shall reimburse the employee for the cost of such parking upon being presented with a receipt or voucher certifying to the cost thereof, such reimbursement to be made on a weekly basis or at the conclusion of the project, whichever occurs earlier.5

(Emphasis added.) Thus, unlike Agreements 1, 4, and 5, Agreements 2 and 3 are silent regarding the existence of a "daily initial reporting place," separate and apart from the jobsite, and so do not address whether the employer would be responsible for compensating his employees for any time spent traveling between these two points.


Burnside made no mention of these CBAs in the complaint filed against Kiewit. Instead, the complaint set forth three claims, all based on state law. Specifically, the employees alleged: (1) violations of California's Business & Professions Code §§ 17200 et seq., on the theory that non-payment of wages, overtime, and employment taxes and benefits gave Kiewit an unfair competitive advantage, see CAL. BUS. & PROF. CODE §§ 17200 et seq.; (2) violations of California Industrial Welfare Commission Wage Order 16-2001, and sections 200, 500, 510, 1194, and 1198 of the California Labor Code, for unpaid regular and overtime wages, see CAL. CODE REGS. tit. 8, § 11160; CAL. LAB. CODE §§ 200, 500, 510, 1194, 1198; and (3) conversion, premised on the allegation that Kiewit wrongfully withheld its employees' regular wages and overtime compensation for its own use.

In its answer to the complaint, Kiewit asserted that Burnside's state law claims were preempted by section 301 of the LMRA. Two days after filing its answer, Kiewit removed the case to federal district court, stating as the basis for removal that the case arises under section 301 and is thus within the district court's federal question jurisdiction.

Once in federal court Kiewit moved for summary judgment. Before the district court could rule on that motion, Burnside filed a motion to remand the matter to state court for lack of jurisdiction. The district court ultimately denied that remand motion, concluding that his claims were indeed pre-empted by, and thus arose under, section 301 because they "substantially depend" on an interpretation of the CBAs' terms and provisions. In a subsequent order, the district court granted Kiewit's motion for summary judgment, holding that Burnside's claims failed because he did not first exhaust his contractual grievance procedures or, in the alternative, because he did not file suit within the six-month statute of limitations period provided by the LMRA. See 29 U.S.C. § 160(b).

Burnside timely appealed.


We review de novo the district court's holding that the state causes of action actually arise under section 301. Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689 (9th Cir.2001) (en banc). After...

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