Rockwell Mining LLC

The Board granted the General Counsel’s Motion for Partial Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by United Mineworkers of America, AFL-CIO, Region 2, District 12.  Chairman Ring and Members Kaplan and Emanuel participated.

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Moreno v. Visser Ranch, Inc.

Plaintiff was injured while a passenger in a pickup truck involved in a single-vehicle, rollover accident.  Plaintiff sued the driver (his father), the corporation that employed the driver, and an affiliated corporation that owned the vehicle.  Plaintiff alleged the driver was acting in the scope of his employment at the time of the accident and claimed the defendant corporations were vicariously liable under California’s doctrine of respondeat superior.  The defendant corporations obtained summary adjudication of the respondeat superior claim on the ground that the driver, who was returning home late in the evening after attending a family gathering, was not acting in the scope of his employment at the time of the accident. 

Scope of employment is a question of fact.  Here, the evidence shows defendants required the driver to be on call 24 hours a day, seven days a week to respond immediately to cell phone calls for repairs and maintenance needed at the ranches, farms and dairies operated by defendants.  Also, there is conflicting evidence about whether the driver was required to use the company-owned vehicle, which contained tools and spare parts, at all times so he could respond quickly to call for repairs at defendants’ various locations.  Based on this evidence and other details about the driver’s job, a reasonable trier of fact could find the driver was acting within the scope of his employment when the accident occurred.

We publish this decision because it is distinguishable from most other cases involving an employee’s required use of a company-owned vehicle.  Usually, those cases involve an employee who is required to use the vehicle only for the commute to and from work but is not required to use the vehicle while off work.  Here, a trier of fact reasonably could find the driver’s use of the truck for personal travel after work was dictated by the employer’s requirement.  In such circumstances, the risk of the truck’s involvement in an accident is a foreseeable risk that is attributable to the business enterprise under California’s risks-of-the-enterprise principle, which is the primary justification for its respondeat superior doctrine. 

Consequently, responsibility for that risk is best allocated to the enterprise, which is able to spread the risk (and actually did so) by obtaining insurance.

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Carrington v. Starbucks Corporation

Evidence that a worker accurately recorded her work time, that she was required to obtain approval from her supervisor prior to beginning her meal break and that she would begin her meal break when instructed was sufficient to support a finding that she did not receive meal breaks as required by law where the worker's records indicate she worked more five hours without taking a meal break and she did not receive a premium payment. Provision of a late meal period does not satisfy California's meal period requirements. An employee who brings a representative action under the Private Attorney General Act may seek penalties not only for the Labor Code violation that affected her, but also for different violations that affected other employees.

Carrington v. Starbucks Corporation - filed Nov. 27, 2018, publication ordered Dec. 19, 2018, Fourth District, Div. One 

Cite as 2018 S.O.S. 6102 

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McCleery v. Allstate Ins. Co.

In this putative class action, property inspectors allege they were engaged by three “service” companies to perform inspections for two major insurers.  The inspectors allege they were in fact employees of the insurers and service companies jointly, and were entitled to but deprived of minimum wages, overtime, meal and rest breaks, reimbursement of expenses, and accurate wage statements.

The inspectors moved for class certification, supported by their expert’s declaration that liability could be determined and damages calculated classwide by way of statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members.

The trial court summarily rejected the expert’s plan and denied certification on the ground that the inspectors had failed to show that their status as employees (as opposed to independent contractors) could be established on predominately common proof.

We reversed the order and remanded the matter with a direction, as pertinent here, to evaluate plaintiffs’ proposed sampling plan.  (McCleery v. Allstate Ins. Co. (Feb. 5, 2016, B256374) [nonpub. opn.].)  On remand, plaintiffs offered a trial plan describing their proposal to establish liability and damages by way of an anonymous survey of all class members.  The trial court found common issues existed as to the class members’ employment status.  It further found that plaintiffs’ survey method, although flawed in some respects, was carefully crafted for accuracy.  However, the court found plaintiffs’ trial plan to be unworkable because it failed to address individualized issues and deprived defendants of the ability to assert defenses.  The court therefore again denied certification.

Plaintiffs appeal, contending the trial court applied improper criteria and made incorrect legal assumptions.

We conclude that under the analytic framework promulgated by Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker) and Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 (Duran), the trial court acted within its discretion in denying certification.

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Biel v. St. James School

The First Amendment's ministerial exception to generally applicable employment laws did not bar a teacher's claim against the Catholic elementary school that terminated her employment; factors to consider in whether an employee qualifies as a minister include whether the employer held the person out as a minister, whether her title reflected ministerial substance and training, whether she held herself out as a minister, and whether her job duties included important religious functions.

Biel v. St. James School - filed Nov. 17, 2018 

Cite as 2018 S.O.S. 17-55180 

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Local Joint Exec. Bd. v. Mirage Casino-Hotel

The panel reversed the district court’s summary judgment confirming, pursuant to the Labor Management Relations Act, an arbitration award entered in favor of Mirage Casino-Hotel, Inc., on a union’s grievance under the parties’ collective bargaining agreement.

Mirage subcontracted with another company to operate a venue, and the memorandum of agreement provided that the other company would “directly employ” the union’s food and beverage workers and would be responsible for paying their wages and employee benefits. Mirage, however, would control the terms and conditions of employment. The other company soon declared bankruptcy and failed to pay certain benefits before closing. Mirage declined to step in, and the union filed a grievance. The arbitrator ruled that the union’s grievance, filed pursuant to the CBA, was not arbitrable. 

The panel explained that the parties’ substantive dispute concerned whether Mirage was obliged under Article 29 of the CBA and the MOA to ensure that the workers received payment for accrued benefits. The dispute was arbitrable if it fell within the arbitration agreement expressed in Article 21 of the CBA. Its arbitrability was to be determined by the arbitrator if the parties “clearly and unmistakably” agreed to submit that question to him. The union’s position would be meritorious if its theory was supported by the CBA and the other evidence.

The panel concluded that the arbitrator conflated these inquiries in concluding that the dispute was not arbitrable because Mirage was not the workers’ employer. The panel held that, under the terms of the CBA, which required Mirage to arbitrate grievances, the dispute was substantively arbitrable. Further, the union’s assent to the arbitrator deciding arbitrability could not be inferred from its post-hearing briefing or its failure to call a halt to the arbitration proceedings and seek judicial review of arbitrability. The panel reversed the district court’s judgment and remanded with instructions to vacate the arbitration award.

Concurring, Judge Owens wrote that, although the dissent reached a more equitable result, the majority’s opinion was more consistent with controlling law. 

Dissenting, Judge Friedland wrote that the “clear and unmistakable” test for determining whether a party resisting arbitration has nevertheless consented to having the arbitrator decide substantive arbitrability does not also apply when determining whether a party that initiates arbitration has so consented. Because the union submitted the dispute to arbitration in the first place, Judge Friedland would instead apply traditional standards of waiver to the union’s actions. She would hold that, under those standards, the union waived its objection to the arbitrator’s deciding the substantive arbitrability question.

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Board Rescinds Invitation to File Briefs in Loshaw Thermal Technology

WASHINGTON, D.C. — Today, the Board issued an order granting the Charging Party Union’s request to withdraw the underlying charge in Loshaw Thermal Technology, LLC, 05-CA-158650 and rescinded its Notice and Invitation to File Briefs (NIFB) in the matter.  The Board had invited briefs in this case to determine whether Section 9(a) bargaining relationships in the construction industry may be established by contract language alone.

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