Parker v. Cherne Contracting Corp.

• Decision Date: 20 November 2020
• Docket Number: Case No. 18-cv-01912-HSG
• Parties: BEATRICE PARKER, Plaintiff, v. CHERNE CONTRACTING CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of California

BEATRICE PARKER, Plaintiff, v. CHERNE CONTRACTING CORPORATION, Defendant.

Case No. 18-cv-01912-HSG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

November 20, 2020

ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR CLASS CERTIFICATION

Re: Dkt. Nos. 50, 55

Pending before the Court is Named Plaintiffs Beatrice Parker and Jeffrey Gurule, Sr.'s ("Plaintiffs")¹ motion for class certification See Dkt. Nos. 55 ("Mot."); 56 ("Opp."), 57 ("Reply"). Plaintiffs seek certification of a proposed class of Defendant Cherne Contracting Corporation's ("Defendant" or "Cherne") current and former hourly employees who worked for Defendant on one or more of three projects in California. On February 27, 2020, the Court held a hearing on the motion for class certification. Dkt. No. 61. At that hearing, the Court deferred ruling on the motion, and invited Defendant to file a motion for summary judgment. Dkt. Nos. 61, 64. On March 31, 2020, Defendant filed its motion for summary judgment. See Dkt. No. 70. On August 6, 2020, the Court held another hearing on the motions for certification and summary judgment. Dkt. No. 80. After carefully considering the parties' arguments, and for the reasons set forth below, the Court DENIES IN PART AND GRANTS IN PART the motion for class certification.

I. BACKGROUND

A. Factual Background

Plaintiff Parker worked for Defendant as an hourly-paid driver/driver-foreman from approximately June 30, 2015 through February 20, 2017 at the Tesoro refinery in Martinez, California. See SAC (Dkt. No. 32) at ¶ 4. Plaintiff Gurule worked for Defendant as an hourly-paid pipefitter at the Tesoro refinery in Martinez, California, from approximately August 31, 2016 through January 1, 2017, and at the Chevron refinery in Richmond, California from approximately March 21, 2017 through October 31, 2017. Dkt. No. 55-6 ¶ 2.

Plaintiffs contend that Defendant operates under a policy known as "in on the employee's time and out on the employer's time," under which employees are not paid for the time spent badging in, traveling from a refinery gate to the work site within the refinery, and obtaining and donning required safety gear, but are paid for the time spent removing the required safety gear, traveling back to the gate and badging out at the end of the work day. Plaintiffs specifically seek to certify a class of 2,361 hourly employees who worked in 49 different job positions, and were members of at least 20 different unions.²

Plaintiffs propose two subclasses: a "Waiting Time Subclass" and a "Wage Statement Subclass." Dkt. No. 55 at 2. The proposed Waiting Time Subclass is defined to include all of Defendant's former hourly employees who worked for Defendant in California between February 13, 2015 and the date on which the Court grants certification. Id. The proposed Wage Statement Subclass is defined to include all of Defendant's former hourly employees who worked for Defendant in California between December 18, 2016 and June 6, 2019 and received paper wage statements that did not have Defendant's full name and address printed on them. Id.

Plaintiffs allege the following causes of action: (1) Defendant violated California's Labor Code and Industrial Welfare Commission (IWC) Wage Order 16 by failing to pay Class members the statutory minimum wage for compensable pre-shift time; (2) Defendants violated Labor Code § 226(a) by failing to provide Class members accurate itemized wage statements; (3) Defendant failed to pay Waiting Time Sub-class members all wages owing upon separation from employment; and (4) Defendant violated Labor Code § 226(a)(8) by failing to provide the Wage Statement Sub-class members with wage statements showing Defendant's complete name and address. Plaintiffs further alleges that Defendant's conduct violated California Business and Professions Code §§ 17200, et seq. (California's Unfair Competition Law (the "UCL")), and alleges representative claims under California's Private Attorneys General Act, Labor Code §§ 2698, et seq. ("PAGA").

Plaintiffs are seeking class certification specifically as to workers employed at three of Defendant's California projects: (1) the Chevron Project at Chevron's refinery in Richmond, California ("Chevron Project"), which existed from approximately September 2015 to October 2018 and involved approximately 2,100 of Defendant's non-exempt hourly employees;³ (2) the Tesoro Avon Wharf MOTEMS Upgrade Project ("Tesoro Project") at the Tesoro refinery in Martinez, California, which lasted from approximately July 2014 to June 2017 and involved approximately 517 non-exempt, hourly employees;⁴ and (3) the Phillips 66 HP38 project ("Phillips Project") at the Phillips 66 refinery in Carson, California, which started in approximately May 2019 and is ongoing.⁵ Neither of the Plaintiffs ever worked at the Phillips Project.⁶

i. The Chevron Project

At the Chevron Project, employees parked at two different locations, gate 91 and the Kellum parking lot.⁷ At gate 91, employees parked in a lot near the gate and then walked through turnstiles where they would "badge in."⁸ Employees then walked a short distance to a location where they waited for a bus.⁹ The bus took them to a "drop-off point by their break area where they [could] drop their personal belongings and then proceed to their designated work area."¹⁰ Defendant estimates that the bus ride would take six to seven minutes to get from the turnstile, where employees badged in, to their designated workplace.¹¹ The time employees spent going through security, being transported to their job site, picking up brass, and donning safety gear was unpaid.¹²

At the Kellum parking lot, employees were required to wait for and board a bus in the parking lot.¹³ The bus then drove to gate 9, where a security guard would get on the bus and scan employees badges using a badge reader.¹⁴ Defendant estimates that it took seven to nine minutes for the bus to drive from the Kellum lot to the worksite.¹⁵

Of the roughly 2,100 Class members who worked on the Chevron Project, 15 were able to drive their own vehicles to and park them at a third location, the Hensly parking lot.¹⁶ Approximately 21 to 28 other craftspeople and general foremen parked at the Hensly parking lot, but had to ride on a van for 10 to 12 minutes to reach their work locations in the refinery.¹⁷ Finally, approximately eight drivers would go through security, park in the Hensly lot and walk for about one minute to the location where they would pick up their buses.¹⁸

ii. The Tesoro Project

Employees worked at two separate job sites on the Tesoro project: the Wharf jobsite, with about 75% of the workers, and the Monsanto jobsite.¹⁹ Employees were paid from the beginning of their shift start time, when they had to be at their "gang box" or work location, and not for any work they had to do before that time.²⁰ At the end of the shift, employees were paid for the time removing safety gear, riding the bus, and badging out.²¹

Plaintiffs contend that the process for entering the refinery was very similar for both job sites because employees all were required to park in a designated parking lot and then walk through turnstiles at which they would "badge in" by swiping a badge.²² Badging in, although mandatory, did not start an employee's paid time.²³ After passing through the turnstile, employees working at the Wharf jobsite then were required to take a 10-12 minute, three to four-mile bus or shuttle ride to their job site.²⁴ Employees working at the Monsanto job site were required to take a three to five-minute, one-mile bus ride to their job site.²⁵

A number of employees on the Tesoro Project, including Plaintiff Parker, worked as bus and shuttle drivers, transporting other employees to their job sites. According to Defendant, these drivers would drive their own vehicles through the south gate, where they were required to "badge in," and then drive for five or six minutes to the office trailer, all of which was unpaid.²⁶

iii. The Phillips 66 Refinery

The Phillips Project at the Phillips 66 refinery in Carson, California started in approximately May 2019, and is ongoing. As of August 29, 2019, approximately 14 non-exempt, hourly employees had worked for Defendant on this project. Employees park in a designated parking lot before proceeding through a turnstile where they "badge in."²⁷ After security, they walk for two minutes to a van that then drives them to their work locations. The van ride takes three to four minutes.²⁸ This happened before the employees' shift start times, and employees were paid only from the designated start of their shift.²⁹

iv. Beginning of Shifts

Although employees were generally required to badge in and out to enter and exit their respective project sites, some employees did not have to badge in or go through security to reach their work area.³⁰ The badging process varied by project and parking area. For example, some employees walked through a turnstile to badge in.³¹ Other employees were badged in by a security guard while they rode on a bus or in their personal vehicle.³² Some employees took a company provided bus or shuttle to get to their work area, while others did not.³³ At the Tesoro Project, some employees were required to park in a designated client-controlled parking lot, walk through a security gate, and then ride a bus provided by Defendant to the jobsite at the start of the workday and back to the gate at the end of the workday.³⁴ Some employees were able to drive and park by their work location, and thus would not use company provided transportation at the start or end of the workday.³⁵ Employees who did not use a company bus included general foremen, drivers, nightshift employees, and employees who worked at the Vallejo yard.³⁶

There were also employees who utilized the bus some days but not others. Plaintiff Gurule testified that he initially took the bus, but later drove a pickup truck to his work area.³⁷ Another potential class member...