Gutierrez v. Brand Energy Servs. of Cal., Inc., A154604

• Court: California Court of Appeals
• Writing for the Court: Jackson, J.
• Citation: 264 Cal.Rptr.3d 173,50 Cal.App.5th 786
• Parties: Carlos GUTIERREZ, Plaintiff and Appellant, v. BRAND ENERGY SERVICES OF CALIFORNIA, INC., Defendant and Respondent.
• Docket Number: A154604
• Decision Date: 16 June 2020

50 Cal.App.5th 786
264 Cal.Rptr.3d 173

Carlos GUTIERREZ, Plaintiff and Appellant,
v.
BRAND ENERGY SERVICES OF CALIFORNIA, INC., Defendant and Respondent.

A154604

Court of Appeal, First District, Division 3, California.

Filed June 16, 2020
As Modified on Denial of Rehearing July 2, 2020

Keller Grover, Eric A. Grover, Robert W. Spencer ; Law Offices of Scot D. Bernstein and Scot D. Bernstein ; Legal Aid of Marin and Ellyn L. Moscowitz for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Ronald W. Novotny and Brian M. Wheeler for Defendant and Respondent.

Jackson, J.

50 Cal.App.5th 791

This is an appeal from final judgment entered against plaintiff Carlos Gutierrez after the trial court granted the motion for summary judgment filed by defendant Brand Energy Services of California, Inc. (Brand). Plaintiff, a former Brand employee, sued Brand for nonpayment of his pre-shift employer-mandated travel time in violation of several Labor Code

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and Business and Professions Code provisions. Plaintiff brought this lawsuit on his own behalf and on behalf of a proposed class of similarly situated persons.

In granting summary judgment for Brand prior to class certification, the trial court found a complete defense existed with respect to each of plaintiff's causes of action under California Industrial Welfare Commission Wage Order No. 16–2001, section 5(D) ( Cal. Code Regs., tit. 8, § 11160(5)(D) ). According to the trial court, this provision permitted union-represented employees and their employers to enter into collective bargaining agreements (CBA's) that waived the right to all compensation for employer-mandated travel

264 Cal.Rptr.3d 176

time. The trial court further found that the applicable CBA's in this case, as amended by a June 2017 letter of understanding (LOU), confirmed a bargained-for practice wherein Brand compensated its employees for post-shift mandatory travel time but not pre-shift mandatory travel time. The trial court thus entered judgment for Brand.

On appeal, plaintiff contends the trial court's order was based on an erroneous interpretation of the applicable wage order. For reasons that follow, we agree with plaintiff and therefore reverse the judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was a journeyman scaffold worker employed by Brand between 2010 and November 2015. Brand contracted for the erection and dismantling of scaffolding at various Northern California refineries, including the Chevron refinery in Richmond, the ConocoPhillips refinery in Rodeo, the Tesoro refinery in Martinez, and the Valero refinery in Benicia. This scaffolding was used by Brand employees to perform maintenance and construction work. During his employment with Brand, plaintiff performed this work at the Tesoro refinery, the ConocoPhillips refinery and, lastly, the Chevron refinery, where he spent the final five years of his employment.

Brand was a signatory to the CBA's at issue in this case with the Carpenters 46 Northern California Counties Conference Board. These CBA's applied to several building and construction trade associations, which included plaintiff's union, Carpenters Local Union 152 (hereinafter, Carpenters Union). The terms of plaintiff's employment were governed by these CBA's.

According to plaintiff's deposition testimony, for the last three months of his employment with Brand, plaintiff generally worked 10- or 12-hour shifts that began at 5:30 p.m. Plaintiff would arrive at the Chevron refinery 30 or 40 minutes before the start of his shift and, after parking his vehicle in the

50 Cal.App.5th 793

refinery lot at about 4:45 p.m., would walk three to five minutes to the refinery gate. At this electronic gate, plaintiff "badge[d] in" with his employee access card. Once through the gate, plaintiff was required to walk to a shuttle bus stop, where he would then wait with other workers about five to seven minutes for the shuttle bus to arrive. Plaintiff would then ride this shuttle bus five to 10 minutes to the lunch tent, where he would put on mandatory safety gear before attending a mandatory safety meeting.

Brand deemed the official start of plaintiff's shift to be the scheduled start time of this daily mandatory safety meeting. According to plaintiff, he was required to take the Brand shuttle bus to this meeting site instead of driving his own vehicle or being dropped off by a friend or relative.

After working his 10- or 12-hour shift, plaintiff would reboard the bus to return to the refinery gate between 2:45 and 3:15 a.m., where he would badge out no later than 3:30 a.m.

Under a practice referred to by Brand as " ‘in on the employee's time, out on the Company's,’ " scaffold workers including plaintiff were not paid for the time they spent each work day before their shift: (1) badging in at the electronic gate, (2) walking to the shuttle bus stop and waiting for the bus, (3) traveling by bus to the mandatory safety meeting site, and (4) donning mandatory safety gear before the start of this meeting (hereinafter, collectively referred to as employer-mandated travel time). Plaintiff alleged that Brand's failure to pay any wages, including minimum

264 Cal.Rptr.3d 177

wage, for this employer-mandated travel time, which amounted to about 30 to 40 minutes each work day, violated Labor Code provisions requiring timely payment of due wages and accurate wage statements ( Lab. Code, §§ 201 – 203, 226, 1194, 1194.2 ), and constituted an unfair business practice under the Business and Professions Code ( Bus. & Prof. Code, § 17200 et seq. ).

Accordingly, plaintiff sought by his first amended complaint, which is the operative complaint, statutory penalties, recovery of unpaid wages, restitution and restoration of sums owed and property unlawfully withheld, interest and attorney fees and costs. Plaintiff brought these claims on his own behalf and on behalf of a proposed plaintiff class of all hourly nonexempt on-site workers employed by Brand at sites within the State of California during the four-year period preceding the original filing date of the complaint to the present.

On March 29, 2017, Brand filed a first amended answer to the first amended complaint in which it asserted as its 10th affirmative defense that each of plaintiff's claims was barred by the exemption set forth in Industrial

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Welfare Commission (IWC) Wage Order No. 16–2001, section 5(D) ( Cal. Code Regs., tit. 8, § 11160 ) (hereinafter, Wage Order 16, § [––––] ).¹

On November 2, 2017, Brand moved for summary judgment based on its 10th affirmative defense, asserting there were no triable issues of material fact because a complete defense existed as to each of plaintiff's causes of action under Wage Order 16 section (5)(D). In making this assertion, Brand relied on a recent LOU entered into by Brand and the Carpenters Union on June 23, 2017, after it filed its first amended answer, that was intended to amend the CBA's governing plaintiff's employment with respect to the practice of " ‘in on the employee's time, out on the Company's.’ " Specifically, this LOU provided in relevant part:

"Pursuant to this practice, the employees’ time spent traveling from the refinery gates to their first places of work within the refineries is considered to be non-compensable commuting time within the refineries. The employees are then required to be compensated at their applicable hourly rate(s) for the time spent traveling from their last place(s) of work back to the refinery gate(s) at the end of the work day. By its payment of such compensation, an Employer is deemed to have satisfied its obligation to pay its employees for the time spent traveling between the refinery gate(s) and their work sites on any given day.

"This letter is intended to constitute a collectively bargained agreement between an employer and a labor organization with respect to employer-mandated travel time within the meaning of California Industrial Welfare Commission Wage Order 16, Section 5(D)."

Following a contested hearing, the trial court granted Brand's motion for summary judgment by order dated May 21, 2018, and thereafter entered judgment for Brand. Plaintiff timely appealed.

DISCUSSION

The standard of review of an order granting summary judgment in the defendant's favor is well settled. We "independently assess the correctness of the trial court's ruling by applying the same legal standard as the trial court in determining

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whether any triable issues of material fact exist, and whether the defendant is entitled to judgment as a matter of law." ( Rubin v. United Air Lines, Inc . (2002) 96 Cal.App.4th 364, 372, 117 Cal.Rptr.2d 109.)

Here, the relevant facts are undisputed and the correctness of the trial court's summary judgment ruling hinges on purely...