Burnside v. Kiewit Pacific Corp. , 491 F.3d 1053 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT BURNSIDE; FRANCISCO 
GOMEZ; RAY ARNETT, Individually,
on behalf of themselves and all
others similarly situated; CHARLES
LINGENFELTER; RON CRUES;
CHARLES R. WILLIAMS,
No. 04-57134
Individually, on behalf of
themselves and all others similarly
situated,
 D.C. No.
CV-04-01745-MLH
Plaintiffs-Appellants, OPINION
v.
KIEWIT PACIFIC CORPORATION, a
Delaware Corporation; DOES, 1
through 100 inclusive.
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued February 16, 2007
Submitted June 20, 2007
Pasadena, California
Filed June 20, 2007
Before: Harry Pregerson, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
7279
7282 BURNSIDE v. KIEWIT PACIFIC CORP.
COUNSEL
George F. Schaefer, Law Offices of George F. Schaefer, San
Diego, California, for the plaintiffs-appellants.
BURNSIDE v. KIEWIT PACIFIC CORP. 7283
Thomas R. Kaufman, Seyfarth Shaw LLP, Los Angeles, Cali-
fornia, for the defendant-appellee.
OPINION
BERZON, Circuit Judge:
The named plaintiffs in this case (whom we will call
“Burnside,” for the first named plaintiff) represent approxi-
mately 270 former and current employees of defendant Kiewit
Pacific Corporation (“Kiewit”). Burnside alleges that Kiewit
never compensated the employees for time they spent travel-
ing 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 ques-
tion: Whether the employees’ claims, brought under state law,
are preempted by section 301 of the Labor Management Rela-
tions 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.
I
A
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
1
The employees were hired on various dates beginning in October 2000
and continuing through January 2001.
7284 BURNSIDE v. KIEWIT PACIFIC CORP.
projects: (1) the Santee-Yuma Project, linking Santee, Cali-
fornia to Yuma, Arizona; and (2) the Victorville-Prim Project,
linking Victorville, California, to Prim, Nevada.
According to the complaint, Kiewit prohibited its employ-
ees 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, Califor-
nia 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, fre-
quently operated by the employees themselves, to their job-
sites. 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 work-
ing 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
2
Burnside supported the allegations made in the complaint with declara-
tions from two named plaintiffs, Gomez and Crues, both of whom worked
on the Santee-Yuma Project. In their declarations, both stated that Kiewit
required its employees to arrive at the meeting sites and drive from there,
in company vans or trucks, to the jobsites; that no free or employer-paid
parking was provided at the jobsites; and that with the exception of one
crew, no Kiewit employee was ever compensated for this meeting and
travel time.
BURNSIDE v. KIEWIT PACIFIC CORP. 7285
hours. In total, Burnside “conservatively estimate[s]” that
Kiewit owes the employees more than $16 million in wages.
B
At all times relevant to this litigation, many of the terms
and conditions of each employee’s work for Kiewit were gov-
erned 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 2: Associated General Contractors of
America, San Diego Chapter, Inc. &
Laborers’ International Union of
North America, Local No. 89
Agreement 3: Associated General Contractors of
America, San Diego Chapter, Inc. &
Building Material, Construction,
Industrial, Professional and Techni-
cal Teamsters Union, Local No. 36
Agreement 4: Associated General Contractors of
California, Inc. & International
Union of Operating Engineers, Local
Union No. 12
Agreement 5: Southern California General Con-
tractors & The Southern California
District Council of Laborers
7286 BURNSIDE v. KIEWIT PACIFIC CORP.
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 transporta-
tion 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 Agree-
ment 1, or a slight variant thereof:
4. Employees shall travel to and from their daily ini-
tial 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 report-
ing point (parking area), as ordered by the Contrac-
tor 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 restric-
tions, the Contractor is required to furnish transpor-
tation for workmen within his jobsite to the place of
their work, this transportation shall be equipped with
seats and handrails.[4]
3
At this point in the CBA, Agreement 4 includes one additional, related
sentence: “Whenever free parking is not available on or within 350 yards
of a jobsite, the contractor shall be responsible for designating a free park-
ing area for his employees.” A substantially similar sentence appears else-
where in Agreement 1, see note 4 infra, and Agreement 5, see note 5 infra.
4
Agreement 1 also includes the following language, not included in
Agreements 4 and 5:
6. The Contractor shall provide or pay for parking facilities for
employees where a sufficient quantity of available free parking
is not available within three (3) blocks of the job. This shall apply
to all jobs or projects when work is being performed by Operat-
ing Engineers within the entire jurisdiction of Local No. 12.
BURNSIDE v. KIEWIT PACIFIC CORP. 7287
(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 pay-
ment 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 job-
site, the Employer will provide such facilities and
shall have the right to designate parking areas to be
used. Where, because of congested parking condi-
tions, 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 reim-
bursement to be made on a weekly basis or at the
conclusion of the project, whichever occurs earlier.[5]
5
Agreement 2 also includes the following language, not included in
Agreement 3: “The Employer shall not be responsible for toll expenses.”
Agreement 3 contains the following sentence, not included in Agreement
2: “No employee shall be required to furnish to the employer transporta-
tion of the employer’s tools, materials, or equipment of any kind.” The
second paragraph here (“In the event free parking facilities . . . whichever
occurs earlier.”) appears in its entirety in Agreements 4 and 5, although
not in Agreement 1. Finally, Agreements 2, 3, 4, and 5 also include the
following sentence at the end of that paragraph: “Designated parking areas
shall be reasonably level and graded to drain.”
7288 BURNSIDE v. KIEWIT PACIFIC CORP.
(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 job-
site, and so do not address whether the employer would be
responsible for compensating his employees for any time
spent traveling between these two points.
C
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 Burn-
side’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 judg-
ment. 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
BURNSIDE v. KIEWIT PACIFIC CORP. 7289
“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.
II
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 doing so, we hold that Burnside’s claims are
not preempted by section 301 and may go forward under state
law because (1) the right to be compensated for employer-
mandated travel time is a right conferred by state law, inde-
pendent of the CBAs; and (2) the matter at hand can be
resolved without interpreting the CBAs. We explain each of
our conclusions below, after first laying out the guiding prin-
ciples regarding section 301 preemption.
A
[1] The history and preemptive scope of section 301 of the
LMRA has been well-chronicled both by the Supreme Court
and by our own circuit. See Livadas v. Bradshaw, 512 U.S.
107, 121-24 (1994); Lingle v. Norge Div. of Magic Chef, Inc.,
486 U.S. 399, 403-06 (1988); Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 208-13 (1985); Cramer, 255 F.3d at 689-93;
Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d
1102, 1106-09 (9th Cir. 2000). We rely on this extensive pre-
cedent to review the essentials.
Under section 301,
7290 BURNSIDE v. KIEWIT PACIFIC CORP.
Suits for violation of contracts between an employer
and a labor organization representing employees in
an industry affecting commerce as defined in this
chapter, or between any such labor organizations,
may be brought in any district court of the United
States having jurisdiction of the parties, without
respect to the amount in controversy or without
regard to the citizenship of the parties.
29 U.S.C. § 185(a). The Supreme Court decided early on that
in enacting this statute, Congress charged federal courts with
a “mandate . . . to fashion a body of federal common law to
be used to address disputes arising out of labor contracts.”
Lueck, 471 U.S. at 209; see also Local 174, Teamsters v.
Lucas Flour Co., 369 U.S. 95, 104 (1962) (explaining that “in
enacting [section] 301 Congress intended doctrines of federal
labor law uniformly to prevail over inconsistent local rules”);
Textile Workers Union v. Lincoln Mills of Ala., 353 U.S. 448,
456 (1957) (concluding that “the substantive law to apply in
suits under [section] 301(a) is federal law, which the courts
must fashion from the policy of our national labor laws”). As
a result of this broad federal mandate, the Supreme Court has
explained, the “preemptive force of section 301 is so powerful
as to displace entirely any state cause of action for violation
of contracts between an employer and a labor organization.”
Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1, 23 (1983) (internal quotation marks omitted).
Once preempted, “any claim purportedly based on [a] . . .
state law is considered, from its inception, a federal claim,
and therefore arises under federal law.” Caterpillar, Inc. v.
Williams, 482 U.S. 386, 393 (1987) (citing Franchise Tax
Bd., 463 U.S. at 24). This is true even in some instances in
which the plaintiffs have not alleged a breach of contract in
their complaint, if the plaintiffs’ claim is either grounded in
the provisions of the labor contract or requires interpretation
of it. See Lueck, 471 U.S. at 210 (“If the policies that animate
[section] 301 are to be given their proper range, . . . the pre-
BURNSIDE v. KIEWIT PACIFIC CORP. 7291
emptive effect of [section] 301 must extend beyond suits
alleging contract violations.”). Otherwise, parties would be
able “to evade the requirements of section 301 by relabeling
their contract claims as claims for tortious breach of contract”
or some other state cause of action, and thus “elevate form
over substance.” Id. at 211.
[2] To prevent such evasion, the Lueck line of section 301
preemption cases and its progeny require, first, an inquiry into
whether the asserted cause of action involves a right conferred
upon an employee by virtue of state law, not by a CBA. If the
right exists solely as a result of the CBA, then the claim is
preempted, and our analysis ends there. See Lueck, 471 U.S.
at 212 (holding that section 301 cannot “preempt state rules
that proscribe conduct, or establish rights and obligations,
independent of a labor contract”); Caterpillar, 482 U.S. at 394
(explaining that section 301 only “governs claims founded
directly on rights created by collective-bargaining agree-
ments”). If, however, the right exists independently of the
CBA, we must still consider whether it is nevertheless “sub-
stantially dependent on analysis of a collective-bargaining
agreement.” See Caterpillar, 482 U.S. at 394 (quoting Int’l
Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n.3
(1987)); see also Lueck, 471 U.S. at 213 (explaining that
when “state . . . law purports to define the meaning of the con-
tract relationship, that law is preempted”). If such dependence
exists, then the claim is preempted by section 301; if not, then
the claim can proceed under state law.
Tracing the line of “demarcation between preempted claims
and those that survive [section] 301’s reach” — is not a task
that always “lends itself to analytical precision.” Cramer, 255
F.3d at 691. We are aided in our quest, however, by useful
guidelines developed by the Supreme Court.
First, to determine whether a particular right inheres in state
law or, instead, is grounded in a CBA, the Court has
instructed us to consider “the legal character of a claim, as
7292 BURNSIDE v. KIEWIT PACIFIC CORP.
‘independent’ of rights under the collective-bargaining agree-
ment [and] not whether a grievance arising from ‘precisely
the same set of facts’ could be pursued.” Livadas, 512 U.S.
at 123 (emphasis added) (internal citations omitted) (quoting
Lueck, 471 U.S. at 213, and Lingle, 486 U.S. at 410, respec-
tively). The Court also has made clear that reliance on the
CBA as an aspect of a defense is not enough to “inject[ ] a
federal question into an action that asserts what is plainly a
state-law claim.” See Caterpillar, 482 U.S. at 398-99
(explaining that “the plaintiff is the master of the complaint,”
and that if the defendant could engineer “the forum in which
the claim shall be litigated” based on the substance of his
defense, “the plaintiff would be master of nothing”); see also
Cramer, 255 F.3d at 691.
[3] Second, to determine whether a state law right is “sub-
stantially dependent” on the terms of a CBA, see Caterpillar,
482 U.S. at 394, the Court directs us to decide whether the
claim can be resolved by “look[ing] to” versus interpreting
the CBA, see Livadas, 512 U.S. at 125; Cramer, 255 F.3d at
691 (citing Balcorta, 208 F.3d at 1108-09). If the latter, the
claim is preempted; if the former, it is not. Although the “look
to”/“interpret” distinction is “not always clear or amenable to
a bright-line test,” see Cramer, 255 F.3d at 691, some assess-
ments are easier to make than others. For example, we know
that neither “ ‘look[ing]’ to the CBA merely to discern that
none of its terms is reasonably in dispute,” see id. at 692
(alteration in original) (quoting Livadas, 512 U.S. at 125), nor
“the simple need to refer to bargained-for wage rates in com-
puting [a] penalty,” see Livadas, 512 U.S. at 125, is enough
to warrant preemption. See also id. at 124 (explaining that
“when the meaning of contract terms is not the subject of dis-
pute, the bare fact that a [CBA] will be consulted in the
course of state-law litigation plainly does not require the
claim to be extinguished”). Similarly, “alleging a hypothetical
connection between the claim and the terms of the CBA is not
enough to preempt the claim.” Cramer, 255 F.3d at 691.
Finally, in cases presenting the question whether the plain-
BURNSIDE v. KIEWIT PACIFIC CORP. 7293
tiff’s union “bargained away the state law right at issue. . . .
a court may look to the CBA to determine whether it contains
a clear and unmistakable waiver of state law rights without
triggering [section] 301 preemption.” Id. at 692.
With these interpretive principles in place, we turn our
attention to Burnside’s claims against Kiewit.
B
Burnside argues, first, that the employees’ right to be com-
pensated for time spent in compulsory round-trip travel exists
as a matter of state law and is independent of any provision
found in the CBAs. We agree.
1
[4] 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 regula-
tion, 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.
The facts of Morillion are entirely reminiscent of the facts
alleged in the instant complaint. Like Kiewit, the defendant in
Morillion, Royal Packing Company, required its employees,
who were agricultural workers, “to meet for work each day at
specified parking lots or assembly areas” and “prohibited
7294 BURNSIDE v. KIEWIT PACIFIC CORP.
[them] from using their own transportation to get to and from
the fields.” Id. at 579. From these “departure points,” Royal
Packing transported its employees, in buses that it provided
and paid for, “to the fields where plaintiffs actually worked.”
Id. “At the end of each day,” Royal Packing “transported
plaintiffs back to the departure points on its buses.” Id. Like
the employees here, the employees in Morillion were never
paid “for the time they spent (1) assembling at the departure
points; (2) riding the bus to the fields; (3) waiting for the bus
at the end of the day; and (4) riding the bus back to the depar-
ture points.” Id. They sued for compensation for those time
periods. Id.
The California Supreme Court found in the employees’
favor. Its opinion was largely based on an interpretation of the
relevant language in Wage Order 14-80, a regulation issued
by IWC to cover agricultural employees.6 See CAL. CODE
REGS. tit. 8, § 11140. Wage Order 14-80 defines the term
“[h]ours worked” as “the time during which an employee is
subject to the control of an employer, and includes all the time
the employee is suffered or permitted to work, whether or not
required to do so.” Id. § 11140(2)(G). Because the agricultural
employees in Morillion were “required to spend [time] travel-
ing on their employer’s buses” to arrive at their daily jobsites,
the state supreme court concluded that these employees had
been “subject to the control of an employer” during those
hours. 22 Cal. 4th at 578 (internal quotation marks omitted).7
6
Operating under the auspices of the Department of Industrial Relations,
the IWC is the state agency “authorized to formulate wage orders govern-
ing employment in California.” See Bearden v. U.S. Borax, Inc., 138 Cal.
App. 4th 429, 433-34 (2006) (citing Collins v. Overnite Transp. Co., 105
Cal. App. 4th 171, 174 (2003)); see also CAL. LABOR CODE §§ 1173,
1178.5, 1182, 1185. Although the state legislature defunded the IWC,
effective July 1, 2004, the agency’s wage orders remain in effect. See
Huntington Mem’l Hosp. v. Superior Court, 131 Cal. App. 4th 893, 902
n.2 (2005). Courts treat IWC wage orders as “quasi-legislative regulations
that are to be interpreted in the same manner as statutes.” Watkins v.
Ameripride Servs., 375 F.3d 821, 825 (9th Cir. 2004).
7
The Morillion court rejected Royal Packing’s argument that traveling
time did not constitute “hours worked” because employees were not tech-
BURNSIDE v. KIEWIT PACIFIC CORP. 7295
In other words, the travel time qualified as “hours worked,”
and was therefore compensable under state law. Id. At the
same time, Morillion made clear that “[t]ime employees
spend traveling on transportation that an employer provides
but does not require its employees to use may not be compen-
sable as ‘hours worked.’ ” Id. at 588; see also Overton v. Walt
Disney Co., 136 Cal. App. 4th 263, 265 (2006) (holding that
no compensation was due employees for time spent traveling
to work on an employer-provided shuttle bus, as the employ-
ees were not required to ride the shuttle bus but were free to
use alternate means of transportation).
Unlike the agricultural employees in Morillion, the parties
here are not covered under Wage Order 14-80. Instead, the
applicable IWC regulation is Wage Order 16-2001, which
covers employees in the construction, drilling, logging, and
mining industries. See CAL. CODE REGS. tit. 8, § 11160.8 Even
though this appeal involves a different regulation than the one
at issue in Morillion, at least two aspects of Wage Order 16-
nically “working” as they rode the bus, and instead were free to “read . . .
or perform other personal activities.” Id. at 586. In doing so, the court
emphasized just how extensively Royal Packing’s mandated travel time
curtailed its employees’ rights, explaining that “employees who commute
to work on their own decide when to leave, which route to take to work,
and which mode of transportation to use” and that “[b]y commuting on
their own, employees may choose and may be able to run errands before
work and to leave from work early for personal appointments.” Id. at 586-
87.
8
Wage Order 16-2001 was adopted on October 23, 2000, but only
became effective on January 1, 2001, after at least some of the plaintiffs
in this putative class had been hired by Kiewit. See Small v. Superior
Court, 148 Cal. App. 4th 222, 226 (2007). The complaint alleges, how-
ever, that the plaintiffs “were employed by [Kiewit] at various times span-
ning . . . [a] four year period.” Complaint ¶ 14. Although Wage Order 16-
2001, in all likelihood, did not cover every putative class member for the
entirety of his tenure with Kiewit, the regulation was in effect during the
majority of the time period at issue in this litigation, a point that neither
party disputes.
7296 BURNSIDE v. KIEWIT PACIFIC CORP.
2001 lead us to conclude that California state law confers on
employees here the same right recognized in Morillion.
[5] First, Wage Order 16-2001 and Wage Order 14-80 use
the same “hours worked” definition that the California
Supreme Court so carefully parsed and relied upon in Moril-
lion. Compare CAL. CODE REGS. tit. 8, § 11160 (2)(J), with
CAL. CODE REGS. tit. 8, § 11140(2)(G) (both defining
“ ‘[h]ours worked’ ” as “the time during which an employee
is subject to the control of an employer, and includes all the
time the employee is suffered or permitted to work, whether
or not required to do so.”). Second, and more importantly,
Wage Order 16-2001 contains explicit language, not found in
Wage Order 14-80, that extends the right to be compensated
for compulsory travel time — as was articulated in Morillion
with respect to agricultural employees — to construction
industry employees:
In section (5)(A), under the heading “Reporting Time Pay,”
Wage Order 16-2001 provides that,
All employer-mandated travel that occurs after the
first location where the employee’s presence is
required by the employer shall be compensated at
the employee’s regular rate of pay or, if applicable,
the premium rate that may be required by the provi-
sions of Labor Code Section 510 and Section 3,
Hours and Days of Work, above.
CAL. CODE REGS. tit. 8, § 11160 (5)(A) (emphasis added). Sec-
tion (5)(D) then adds:
Collective Bargaining Agreements. This section
shall apply to any employees covered by a valid col-
lective bargaining agreement unless the collective
bargaining agreement expressly provides otherwise.
Id. § 11160 (5)(D) (emphasis added).
BURNSIDE v. KIEWIT PACIFIC CORP. 7297
[6] Two aspects of section 5 are noteworthy for purposes
of this case. First, section (5)(A) does not set the rate of com-
pensation for reporting time. Id. § 11160 (5)(A). It explains
only that employees can be paid either the “regular rate of pay
or, if applicable,” the overtime rate. Id. The overtime rate
referred to by the regulation is provided for by both the state’s
Labor Code, see CAL. LAB. CODE § 510, and by a separate pro-
vision in Wage Order 16-2001, see CAL. CODE REGS. tit. 8,
§ 11160 (3). Second, section (5)(D) stresses that section
(5)(A) automatically applies to employees already covered by
a CBA, “unless [the CBA] expressly provides otherwise.” Id.
§ 11160 (5)(D) (emphasis added). In other words, the opera-
tive presumption is that the right to be compensated for com-
pulsory travel time, as articulated in Morillion, instantly
attaches to all employees covered under Wage Order 16-2001,
disappearing only if a governing CBA includes clear language
to the contrary.9
Kiewit argues, however, that the IWC actually intended —
contrary to the plain language of section (5)(D), as enacted —
9
The history behind the regulation’s enactment further evinces the
IWC’s intent to extend Morillion to employees covered by Wage Order
16-2001. The agency’s “statement as to the basis” for the wage order, for
example, explicitly cites to Morillion in its discussion of section (5)(A).
See INDUSTRIAL WELFARE COMMISSION, STATEMENT AS TO THE BASIS FOR
WAGE ORDER NO. 16 REGARDING CERTAIN ON-SITE OCCUPATIONS IN THE
CONSTRUCTION, DRILLING, MINING, AND LOGGING INDUSTRIES, SECTION 5:
REPORTING TIME PAY 10, http://www.dir.ca.gov/iwc/StatementAsToThe
BasisWageorder16.pdf (last visited June 13, 2007) (hereinafter “STATE-
MENT”). In addition, IWC members referred to Morillion at least once dur-
ing a series of public hearings held in the fall of 2000 regarding Wage
Order 16-2001. See Transcript of Record, State of California, Department
of Industrial Relations, Industrial Welfare Commission, Public Hearing
(Sept. 21, 2000), http://www.dir.ca.gov/iwc/PUBHRG9211.htm (where
various IWC commissioners discuss the then-proposed order’s “Reporting
Time Pay” provision, explain that “the issue . . . is the definition of ‘hours
worked,’ ” and add that the “Supreme Court” has said that the definition
of “hours worked” depends on “[w]hether the employer controls it or
not”).
7298 BURNSIDE v. KIEWIT PACIFIC CORP.
for Section (5)(A) not to apply to employees covered by
CBAs, unless the CBA expressly provided otherwise. To sup-
port its position, Kiewit points to some of the language found
in IWC’s “statement as to the basis” for Wage Order 16-2001.10
According to the paraphrase of section (5)(D) found in the
statement as to the basis, section (5)(D) “does not apply to
any employee covered by a valid collective bargaining agree-
ment unless the collective bargaining agreement expressly
provides otherwise.” See STATEMENT at 10 (emphasis added).
We have reviewed the relevant administrative record but
have found nothing that explains the contradiction between
the paraphrase of section (5)(D) that appears in the “statement
as to the basis” and the version codified. Kiewit has no expla-
nation either. The best we can surmise is to assume that the
“statement as to the basis” incorrectly paraphrased the statu-
tory language. Our conclusion that the final choice of lan-
guage in section (5)(D) means what it says rather than the
opposite of what it says is corroborated by the fact that
another “opt-out” provision — i.e., a provision stating that a
right “shall apply . . . unless the collective bargaining agree-
ment provides otherwise” — as well as an “opt-in” provision
— i.e., a provision stating that a right “shall not apply . . . if
the agreement expressly provides” — both appear elsewhere
in the wage order. Compare CAL. CODE REGS. tit. 8, § 11160
(3)(H)(2), with id. § 11160 (3)(H)(1); see Stewart v. Ragland,
934 F.2d 1033, 1041 (9th Cir. 1991) (“When certain statutory
10
Under California state law, the IWC is required to “ ‘prepare a state-
ment as to the basis upon which an adopted or amended order is predicat-
ed.’ ” See Small, 148 Cal. App. 4th at 232 (quoting CAL. LAB. CODE
§ 1177(b)). Although “[i]t ‘need not be a totally exhaustive document,’ ”
the statement as to the basis should “provide ‘an explanation of how and
why the [IWC] did what it did.’ ” Id. (second alteration in original) (quot-
ing Cal. Lab. Fed’n, AFL-CIO v. Indus. Welfare Comm’n, 63 Cal. App.
4th 982, 997 (1998)); see also Cal. Hotel & Motel Ass’n v. Indus. Welfare
Comm’n, 25 Cal. 3d 200, 213 (1979) (explaining that to facilitate judicial
review of the agency’s action, “[t]he statement should reflect the factual,
legal, and policy foundations for the action taken”).
BURNSIDE v. KIEWIT PACIFIC CORP. 7299
provisions contain a requirement and others do not, we should
assume that the legislature intended both the inclusion and the
exclusion of the requirement.”).
[7] In any event, it is the plain language of an actual,
enacted regulation which must govern, not language that
appears in the underlying rationale. See Brewer v. Patel, 20
Cal. App. 4th 1017, 1021 (1993) (explaining that “[w]hen . . .
language [of a regulation] is clear, we must apply that lan-
guage without indulging in interpretation”) (citing Delaney v.
Superior Court, 50 Cal. 3d 785, 800 (1990)); see also Man-
riquez v. Gourley, 105 Cal. App. 4th 1227, 1235 (2003) (writ-
ing that a court “may look” to “extrinsic aids,” including “the
purpose of the regulation, the legislative history, public pol-
icy, and the regulatory scheme of which the regulation is a
part,” to help it interpret a regulation “[w]hen the agency’s
intent cannot be discerned directly from the language of the
regulation”). We therefore proceed with that understanding of
section (5)(D) — i.e., that employers and employees may opt
out of the state-law right through provisions in CBAs, but
need not affirmatively opt in.
2
Kiewit argues that the presence of an “opt-out” provision
in section (5)(D) of Wage Order 16-2001 militates against
concluding that the right to be compensated for employer-
mandated travel time is a right conferred as a matter of state
law that exists independently of the CBAs. The very fact that
the right can be bargained away, Kiewit contends, suggests it
does not exist independently of the CBA, and leads inevitably
to the conclusion that Burnside’s claims are preempted.
[8] We must disagree. Initially, as a matter of pure logic,
a right that inheres unless it is waived exists independently of
the document that would include the waiver, were there a
waiver. The right arises from state law, not from the CBA,
and is vested in the employees directly, not through the
7300 BURNSIDE v. KIEWIT PACIFIC CORP.
medium of the CBA. And if the CBA says nothing at all about
pay for travel time, the right to be paid for that time still
exists. The right is therefore one that came into existence
entirely independently of the CBA, and that remains in exis-
tence, independently of the CBA, unless a condition subse-
quent — waiver by the CBA — occurs.
[9] Moreover, neither the Supreme Court nor, as far as we
can determine, any other court, has ever held that the potential
for waiver absent actual waiver is enough — standing alone
— to trigger preemption under section 301. And for good rea-
son. To adopt the contrary position, as Kiewit asks us to,
would be to effectively penalize unionized employees simply
because they have the option of waiving a state-law-conferred
right through collective bargaining, presumably in exchange
for some other benefit. Nothing in the Court’s jurisprudence,
as we illustrate below, suggests that the section 301 preemp-
tion doctrine requires this result.11
We begin with Lueck and its statement that “state-law
rights and obligations that do not exist independently of pri-
vate agreements, and that as a result can be waived or altered
by agreement of private parties, are pre-empted by those
agreements.” 471 U.S. at 213 (emphasis added). Read in iso-
lation, this sentence — more precisely, its highlighted portion
— might be understood to suggest that for a state-law right to
be entirely independent of a private agreement, it cannot be
subject to any bargaining or negotiation. On this interpreta-
tion, independence and nonwaivability are simply two sides
of the same coin. For two reasons, however, we do not accept
this reading of Lueck as supporting Kiewit’s position that the
inchoate possibility of opting out of coverage of a state law
through a CBA means automatic section 301 preemption,
whether or not the CBA actually contains any such waiver:
11
Our decision today reaches only opt-out, not opt-in, statutes. The latter
present a somewhat different problem. Under the opt-in approach, the
state-law rights can be more readily viewed as existing only if the CBA
says so and as therefore dependent on the CBAs.
BURNSIDE v. KIEWIT PACIFIC CORP. 7301
(1) First, if read as we have posited, the above cited lan-
guage from Lueck would be patent dicta. After all, Lueck’s
focus was solely on whether the particular right in question —
a state tort action for the bad-faith handling of an insurance
claim — was so derivative of the terms of the CBA that it
would not exist independently of the agreement, and was thus
subject to section 301 preemption. In Lueck, the only reason
the plaintiff had an insurance claim at all was because the
CBA created an obligation on the part of the employer to pro-
vide the insurance benefit in question. See id. at 217 (“The
duties imposed and rights established through the state tort
thus derive from the rights and obligations established by the
contract.”); id. at 218 (“Because the right asserted not only
derives from the contract, but is defined by the contractual
obligation of good faith, any attempt to assess liability here
inevitably will involve contract interpretation.”). The Lueck
Court therefore had no need to consider whether a state-law
right that is not derivative of or dependent on a CBA is none-
theless preempted for unionized employees if that right poten-
tially could be — but was not — waived in the CBA. See
Kastigar v. United States, 406 U.S. 441, 454-55 (1972)
(explaining that “broad language . . . unnecessary to the
Court’s decision . . . cannot be considered binding authority”).12
12
For the same reason, other language in Lueck is dicta as well, if
applied to rights not created in the first instance by the CBA. In particular,
Lueck states that a court’s preemption analysis “must focus . . . on whether
the [state cause of action] . . . confers nonnegotiable state-law rights on
employers or employees independent of any right established by contract,
or, instead, whether evaluation of the . . . claim is inextricably intertwined
with consideration of the terms of the labor contract.” 471 at 213 (empha-
sis added). The term “nonnegotiable” is repeated in one other instance in
Lueck, see id. at 217 n.11 (“We pass no judgment on whether an indepen-
dent, nonnegotiable, state-imposed duty which does not create similar
problems of contract interpretation would be pre-empted under similar cir-
cumstances.”), as well as once in Livadas, see 512 U.S. at 123 (writing
that “[section] 301 cannot be read broadly to pre-empt nonnegotiable
rights conferred on individual employees as a matter of state law”). In
each of these instances, the use of the word “nonnegotiable” — as a defin-
7302 BURNSIDE v. KIEWIT PACIFIC CORP.
(2) Second, the cited language from Lueck need not be, and
in our view should not be, interpreted as we have initially pos-
ited — i.e., as a statement that if a right can be waived, then
it is not independent. The more plausible reading is one that
conforms with the situation faced by the Court in Lueck: that
if a right exists only because of the CBA and, “as a result”
of that dependence “can be waived or altered by agreement of
the parties,” see Lueck, 471 U.S. at 213 (emphasis added),
then there is preemption. This interpretation makes far more
sense given the context of Lueck, which, as we have
explained, was concerned with a benefit that existed solely as
a result of the CBA.
This second, alternative interpretation of the language from
Lueck — and the one we adopt — is corroborated by the
Supreme Court’s post-Lueck cases, none of which assert the
proposition that waivability means non-independence if the
source of the right in question is indubitably state law and not
the CBA. To be sure, and as we have noted, the Court has
never squarely addressed the role that opt-out provisions such
as the one in this case must play in section 301 preemption
analysis. In Lingle, however, the Court had occasion again to
define the term “ ‘independent’ . . . for [section] 301 pre-
emption purposes,” and did so by explaining that a “state-law
remedy . . . is ‘independent’ of the collective-bargaining
agreement” if “resolution of the state-law claim does not
require construing the collective-bargaining agreement.” 486
U.S. at 407. Lingle, in other words, made no mention of non-
waivability or nonnegotiability as defining features of an “in-
dependent” state-law right. See also Hawaiian Airlines, Inc.
v. Norris, 512 U.S. 246, 262 (1994) (characterizing the
ing aspect of an “independent” state-law right — would be dicta if read
as Kiewit would have us do, to describe a state law containing a one-way
opt-out provision, like the state law at issue here. (For that matter, it would
be dicta even in the context of a one-way opt-in provision, as neither
Lueck nor Livadas concerned such a provision.)
BURNSIDE v. KIEWIT PACIFIC CORP. 7303
Court’s ruling in Lingle as one in which “the LMRA pre-
empts state law only if a state-law claim is dependent on the
interpretation of a CBA” (emphasis added)).
Moreover, as Lingle goes on to emphasize, even in
instances in which the state has granted workers a “nonnego-
tiable” right, the fact of nonnegotiability alone is not a talis-
man for determining preemption. Instead, Lingle explained,
“[w]hile it may be true that most state laws that are not pre-
empted by [section] 301 will grant nonnegotiable rights that
are shared by all state workers, . . . neither condition ensures
nonpre-emption,” nor is the contrary the case. 486 U.S. at 407
n.7. “[A] law could cover only unionized workers,” the Lingle
Court went on, “but remain unpre-empted if no collective-
bargaining agreement interpretation was needed to resolve
claims brought thereunder.” Id. Thus, in a situation like the
one presented here — where section (5)(D)’s opt-out provi-
sion applies only to unionized workers — preemption would
follow only if the CBA had to be interpreted to resolve Burn-
side’s claims. We address the question of interpretation in a
subsequent section.13 For present purposes, though, Lingle
supports the proposition that the mere presence of an opt-out
provision in a state law — a provision which, by definition,
pertains only to unionized workers — cannot be enough to
trigger preemption.14
13
In particular, we respond to Kiewit’s contention that because a court
would have to review the CBA to see whether the employees did choose
to waive their state-law right, that review would constitute an “interpreta-
tion” of, rather than a “looking to,” the CBAs. See infra p. 7311.
14
There are cases in our circuit and in California that have held the par-
ticular rights at issue to be conferred as a matter of state law, and indepen-
dent of the CBAs, in large part because the state legislature had been
explicit about their inherent non-waivability. See Valles v. Ivy Hill Corp.,
410 F.3d 1071, 1077-80 (9th Cir. 2005) (surveying the relevant statutory
provisions and legislative history before concluding that the state legisla-
ture intended that “the substantive provisions mandating meal periods . . .
could not ‘in any way be contravened or set aside by a private agreement,
whether written, oral, or implied’ ” (quoting CAL. LABOR CODE §§ 219,
7304 BURNSIDE v. KIEWIT PACIFIC CORP.
Our reading of Lueck is also corroborated by Livadas’s dis-
cussion of waiver during the collective bargaining process.
Livadas involved a claim brought under section 203 of the
California Labor Code, which renders an employer liable if he
fails to pay an employee all wages owed her immediately
upon her discharge. 512 U.S. at 111. The Court concluded
that the employee’s claim was not preempted, because “[t]he
only issue raised . . . was a question of state law, entirely
independent of any understanding embodied in the collective-
bargaining agreement,” and because the fact that the agree-
ment might eventually be “ ‘look[ed] to’ . . . for damages
computation is no reason to hold the state-law claim defeated
by [section] 301.” Id. at 124-25. In addition, Livadas went on,
preemption was not warranted because “[t]here is no sugges-
tion here that Livadas’s union sought or purported to bargain
away her protections under [state law], a waiver that we have
said would . . . have to be ‘clear and unmistakable,’ for a
court even to consider whether it could be given effect.” Id.
(quoting Lingle, 486 U.S. at 409 n.9 (internal quotation marks
omitted)). Of course, if the very fact that a right could be
waived were enough to warrant preemption then, logically
speaking, just how “clear or unmistakable” the waiver actu-
226.7)); Balcorta, 208 F.3d at 1111 (holding that “[t]he rights granted to
employees by California Labor Code § 201.5 are not subject to negotia-
tion,” given the legislative history surrounding the statute); Zavala v. Scott
Bros. Dairy, Inc., 143 Cal. App. 4th 585, 596 (2006) (holding that rights
related to “rest periods and wage-stub itemization” were nonwaivable and
nonnegotiable, noting that state legislators had specified that these rights
constituted “minimum substantive guarantees” and that, through section
219 of the Labor Code, “the Legislature has categorically forbidden the
modification of any provision of these laws” (internal quotation marks
omitted)). Nothing in these cases, however, states the opposite proposition
— that a state law-conferred right is necessarily preempted if it is waiv-
able in a CBA under state law. And to read these cases as implicitly adopt-
ing that proposition would be to suppose that they contradict the Supreme
Court’s explicit Lingle assertion that “nonnegotiability” is not talismanic,
in either direction, with regard to section 301 preemption, a supposition
in which we cannot indulge. See Lingle, 486 U.S. at 407 n.7.
BURNSIDE v. KIEWIT PACIFIC CORP. 7305
ally turned out to be should have no impact on a court’s pre-
emption analysis. That the nature of the actual, consummated
waiver does matter, however, supports our conclusion that the
possibility of waiver, by itself, is not enough to make an oth-
erwise independent state-law right contingent on the terms of
a CBA in the sense necessary to trigger preemption under sec-
tion 301.
3
Our conclusion that the possibility of waiver does not auto-
matically trigger preemption makes sense not only as a ratio-
nal derivation of the pertinent portions of Lueck, Lingle, and
Livadas, but also as it relates to the Supreme Court’s more
general jurisprudence concerning the collective bargaining
process and the protections accorded unionized workers. Sec-
tion 301 preemption focuses on the impact of state law on the
enforcement of the end-product of that process, the CBAs
negotiated between unions and employers. More broadly, the
interplay of collective bargaining, state labor law, and the
rights of both employers and employees also features in cases
involving the National Labor Relations Act, 29 U.S.C.
§§ 157-158 (“NLRA”), which is “concerned primarily with
establishing an equitable process for determining terms and
conditions of employment,” see Metro. Life Ins. Co. v. Mass.,
471 U.S. 724, 753 (1985), and the corresponding Machinists
preemption doctrine, see Lodge 76, Int’l Ass’n of Machinists
v. Wis. Employment Relations Comm’n, 427 U.S. 132. 140-41
(1976). Under that doctrine, state activity may be restricted
“on the theory that pre-emption is necessary to further Con-
gress[’s] intent that ‘the conduct involved be unregulated
because [it should be] left to be controlled by the free play of
economic forces.’ ” Fort Halifax Packing Co. v. Coyne, 482
U.S. 1, 19-20 (1987) (second alteration in original) (internal
quotation marks omitted) (quoting Machinists, 427 U.S. at
140).
In the Machinists line of cases, the Court has repeatedly
repudiated the idea that the mere ability of unionized workers
7306 BURNSIDE v. KIEWIT PACIFIC CORP.
to bargain collectively somehow makes it permissible to give
unionized employees fewer minimum labor-standards protec-
tions under state law than other employees. See, e.g., Fort
Halifax Packing, 482 U.S. at 21 (explaining that “pre-emption
should not be lightly inferred . . . , since the establishment of
labor standards falls within the traditional police power of the
State”); id. at 21-22 (“[T]he mere fact that a state statute per-
tains to matters over which the parties are free to bargain can-
not support a claim of pre-emption, for ‘there is nothing in the
NLRA . . . which expressly forecloses all state regulatory
power with respect to those issues . . . that may be the subject
of collective bargaining.’ ” (alteration in original) (quoting
Malone v. White Motor Corp., 435 U.S. 497, 504-05 (1978)));
Metro. Life Ins., 471 U.S. at 755-56 (rejecting the argument
that the state’s establishment of minimum substantive labor
standards undercut the collective bargaining process and thus
should be preempted by the NLRA, and adding that “[i]t
would turn the policy that animated the Wagner Act on its
head to understand it to have penalized workers who have
chosen to join a union by preventing them from benefitting
from state labor regulations imposing minimal standards on
nonunion employers”). Livadas, in turn, heavily relied on this
logic in holding California policy differentiating between
union and nonunion employees “irreconcilable” with the
NLRA. See 512 U.S. at 132. In doing so, it articulated a non-
discrimination rationale relevant to the instant appeal.
As explained earlier, Livadas involved an employee’s claim
against her employer after the employer failed to pay all
wages owed her immediately upon discharge, as required by
the state’s labor code. Id. at 111. California’s Labor Commis-
sioner refused to take action against the employer, citing its
policy of not enforcing the state’s severance pay provisions
when the employee involved in the dispute is covered by a
CBA that contains an arbitration clause. Id. at 112-13. Before
the Supreme Court, the Commissioner sought to defend this
“hands off” policy by arguing that “official restraint will actu-
ally encourage the collective-bargaining and arbitral processes
BURNSIDE v. KIEWIT PACIFIC CORP. 7307
favored by federal law.” Id. at 126; see also id. at 128. To bol-
ster this defense, the Commissioner pointed to “a number of
state and federal laws that draw distinctions between union
and nonunion represented employees,” presumably as evi-
dence that other states give employees the option of “forfeit[-
ing]” certain state-law rights upon entering a CBA. Id. at 131-
32 (citing, as examples of the such statutes, “D.C. CODE ANN.
§ 36-103 (1993) (‘Unless otherwise specified in a collective
agreement . . . [w]henever an employer discharges an
employee, the employer shall pay the employee’s wages
earned not later than the working day following such dis-
charge’); 29 U.S.C. § 203(o) (‘Hours [w]orked’ for Fair Labor
Standards Act measured according to ‘express terms of . . . or
practice under bona fide collective-bargaining agreement’)”
(alterations in original)).
The Livadas Court rejected the argument that a state’s
“hands off” policy advances federal labor policy with regard
to unionized employees, explaining — in language largely
borrowed from the Machinists line of case law — that the
Commissioner’s “assertion that represented employees are
less ‘in need’ precisely because they have exercised federal
rights poses special dangers that advantages conferred by fed-
eral law will be canceled out and its objectives undermined.”
Id. at 129 (citing Metro. Life Ins., 471 U.S. at 756); see also
id. at 130 (“[W]e have never suggested that labor law’s bias
toward bargaining is to be served by forcing employees or
employers to bargain for what they would otherwise be enti-
tled to as a matter of course.” (citing Metro. Life Ins., 471
U.S. at 757)); id. at 131 (explaining that in Fort Halifax Pack-
ing, “the minimum protections” of the state’s labor law “were
relinquished not by the mere act of signing an employment
contract (or collective-bargaining agreement), but only by the
parties’ express agreement on different terms” (citing Fort
Halifax Packing, 482 U.S. at 21)).
Livadas also explained that although the Commissioner
correctly pointed out that it is not atypical for state laws to
7308 BURNSIDE v. KIEWIT PACIFIC CORP.
distinguish between union and nonunion employees by enact-
ing statutes with “opt-out” provisions, “virtually all” of those
statutes15 still afforded “union-represented employees . . . the
full protection of the minimum [state] standard, absent any
agreement for something different.” Id. (emphasis added).
“These ‘opt out’ statutes,” the Court continued, “are thus
manifestly different in their operation (and their effect on fed-
eral rights) from the Commissioner’s rule that an employee
forfeits his state-law rights the moment a collective-
bargaining agreement with an arbitration clause is entered
into.” Id. at 131-32. In so stating, the Court clarified the con-
tinuing validity, not invalidity, of such statutes. Id. at 132
(“[O]ur holding that the Commissioner’s unusual policy is
irreconcilable with the structure and purposes of the Act
should cast no shadow on the validity of these familiar and
narrowly drawn opt-out provisions.”). Yet, under Kiewit’s
theory, these statutes would not in practice afford union-
represented employees full protection absent waiver. Instead,
combined with the section 301 preemption doctrine, they
would disadvantage unionized workers just for being union-
ized workers, by “forcing [unionized] employees . . . to bar-
gain for what they otherwise would be entitled to as a matter
of course.” Id. at 130. To so understand the impact of section
301 preemption is to run squarely into the Supreme Court’s
assertion in Livadas that opt-out provisions are generally con-
sistent with federal labor policy.
[10] Read together, then, Metropolitan Life Insurance, Fort
Halifax Packing, and Livadas crystallize the Supreme Court’s
view that 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. Although her union
may certainly bargain “for something different” or reach “ex-
15
Livadas never explains this caveat. Because the language used in sec-
tion (5)(D) of Wage Order 16-2001 is very similar to the language used
in the opt-out provisions cited in Livadas, though, the caveat is irrelevant
for present purposes.
BURNSIDE v. KIEWIT PACIFIC CORP. 7309
press agreement on different terms,” see Livadas, 512 U.S. at
131, the fact remains that “if impasse is reached” during those
negotiations, then the “pre-existing state law” remains intact,
see Fort Halifax Packing, 482 U.S. at 21. The state-law-
conferred right, in other words, remains with the employee
unless and until it is expressly given away. To hold otherwise
would impermissibly disadvantage the unionized employee,
because a failure to negotiate the right nevertheless will result
in its forfeiture.
In the specific context of this appeal, this would mean that
Burnside instantly would have waived his state-law-conferred
right to be compensated for compulsory travel time — thus
triggering section 301 preemption — the moment he became
part of a bargaining unit covered by a CBA, regardless of
whether his union ever sought to trade that right for some
other benefit during the collective bargaining process. The
result would be that simply because he worked at a unionized
workplace, Burnside would have neither the right to travel
time nor any benefit obtained in exchange for it. This conclu-
sion could not be reconciled with Livadas’s disapproval of
approaches to labor preemption doctrine that disadvantage
unionized employees simply for being covered by a CBA,
regardless of its terms. See 512 U.S. at 129 (explaining that
“the widespread practice in Congress and in state legislatures”
has always been that “basic employment guarantees and pro-
tections” should be bestowed “on individual employees with-
out singling out members of labors unions (or those
represented by them) for disability”).
[11] We should not interpret the doctrine of section 301
preemption so broadly as to undermine the broader precepts
of federal labor policy of which enforcement of CBAs is a
part. After all, the Supreme Court has termed section 301 pre-
emption but an “acorn,” not a “mighty oak.” Id. at 122. We
therefore hold that the mere presence of an opt-out provision
in section (5)(D) of Wage Order 16-2001 does not automati-
cally sever the employees’ connection to their state-law
7310 BURNSIDE v. KIEWIT PACIFIC CORP.
rights, as articulated in section (5)(A) of the same wage order
and in Morillion.
*****
[12] In conclusion, we hold that Burnside’s claims that
Kiewit must compensate the employees for time spent travel-
ing from designated meeting points to their jobsites and back,
as Kiewit required, are based on a right conferred as a matter
of state law — in particular, Morillion and Wage Order 16-
200116 — not by the CBAs. That Wage Order 16-2001 con-
tains an opt-out provision does not change our analysis. Burn-
side’s claims are thus not preempted by section 301 on the
ground that they assert a state cause of action dependent on
rights created by the CBAs.
C
This conclusion does not end our inquiry. We must now
separately consider whether Burnside’s claims are neverthe-
less preempted by section 301 because they “substantially
16
We note that we found no other statute in the state’s Labor Code that
addresses commuting or traveling time in a manner relevant to this appeal,
nor did either party alert us to any. The district court erred by suggesting
otherwise, when discussing section 510(b) of the California Labor Code
in the order denying the employees’ motion to remand. Under section
510(b),
Time spent commuting to and from the first place at which an
employee’s presence is required by the employer shall not be
considered to be a part of a day’s work, when the employee com-
mutes in a vehicle that is owned, leased, or subsidized by the
employer and is used for the purpose of ridesharing, as defined
in Section 522 of the Vehicle Code.
CAL. LABOR CODE § 510(b) (emphasis added). The language of the statute
is clear that this provision pertains only to an employee’s commute from
a location, such as her home, to the first location her employer requires her
presence (and back), not any commute she would undertake after arriving
at that first location.
BURNSIDE v. KIEWIT PACIFIC CORP. 7311
depend[ ] on” an interpretation of the terms of the CBAs. See
Caterpillar, 482 U.S. at 394. After examining the relevant
CBA provisions, we conclude that the claims can be resolved
by — at most — merely “looking to” the CBAs and that the
claims, therefore, are not preempted by section 301.
1
We begin by reviewing the relevant text of each CBA
regarding the employees’ right to be compensated for time
spent commuting. Agreements 1, 4, and 5 include substan-
tially similar versions of the following provision, which we
take from Agreement 1:
[13] 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 vol-
untarily report to a point for free transportation to the
jobsite will not be compensated for the time in route
and return.
So these three CBAs address the issue of compensation for
travel time between a “reporting point” and “jobsite,” and dis-
tinguish between employer-mandated travel and voluntary
travel. Agreements 2 and 3, on the other hand, do neither.
Instead, they state only the following:
Employees shall travel to and from work on their
own time and by means of their own transportation.
Despite these differences in wording, none of the CBAs
require an “interpretation” of their provisions to determine
whether Kiewit owed its employees compensation for com-
pulsory travel time. Examining any of them would only con-
firm that none contain an express waiver, as contemplated by
section (5)(D) of Wage Order 16-2001, of the right codified
in section (5)(A). The need to conduct such a cursory exami-
7312 BURNSIDE v. KIEWIT PACIFIC CORP.
nation does not “trigger[ ] [section] 301 preemption,” as “a
court may look to” — not interpret — “the CBA[s] to deter-
mine whether [they] contain[ ] a clear and unmistakable
waiver of state law rights.” See Cramer, 255 F.3d at 692
(emphasis added).
[14] Nor is there any other provision in any of the agree-
ments that would need to be interpreted to decide Burnside’s
claim. By specifying that “[t]he Contractor shall be responsi-
ble for payment of wages from the reporting point . . . to the
jobsite and from job-to-job and return,” Agreements 1, 4, and
5, at best, merely confirm that they confer upon employees
the same right already conferred upon them by state law. As
the Court explained in Lingle, “[T]he mere fact that a broad
contractual protection . . . may provide a remedy for conduct
that coincidentally violates state-law does not make the exis-
tence or the contours of the state law violation dependent
upon the terms of the private contract.” See 486 U.S. at 412-
13. Agreements 2 and 3 provide even less — in fact, no —
fodder for interpretation, as they do not even broach the sub-
ject of compensation for compulsory travel time.
Kiewit argues to the contrary, contending that an “interpre-
tation” of the CBAs’ “work rules” are needed before employ-
ees’ claims could be resolved. In so arguing, Kiewit relies on
Morillion, which discussed Royal Packing’s “work rules”
when determining whether the employees there were, in fact,
required to travel to their job sites from a designated meeting
point. See 22 Cal. 4th at 579 & n.1. There is no indication in
Morillion, however, that the California Supreme Court ascer-
tained those “work rules” based on an interpretation of an
employer-employee contract. In fact, there is no indication
from Morillion that the agricultural employees concerned
were even covered by a CBA.
Even assuming that the Morillion court deciphered the rele-
vant rules from a CBA, the “work rules” that Kiewit points to
here are wholly irrelevant to the central issue in this appeal.
BURNSIDE v. KIEWIT PACIFIC CORP. 7313
In its briefs, for example, Kiewit points to the fact that “the
CBAs each contain provisions stating that the employer will
provide free or employer-paid parking at the worksites unless
parking areas were remote or hazardous,” and thus argues that
“[t]he terms ‘remote’ and ‘hazardous’ are subject to conflict-
ing interpretations, such that there may be a dispute whether
employees had a right under the CBA to parking at a given
worksite.” Whether Kiewit had an obligation to provide
employees with parking near the jobsite, however, does not
bear on whether Kiewit in fact required its employees to com-
mute to the jobsite from a designated meeting point.
Kiewit also argues that some of “the CBAs provide that
employees will not be paid when they voluntarily chose to
ride the van to work,” and that “the term ‘voluntarily’ is sub-
ject to conflicting interpretation[s].” But Wage Order 16-2001
requires payment for travel time only when the employer
mandates use of its transportation. The CBA provisions thus
do not change the state-created rule, and, as far as we can tell,
will not need to be consulted to implement it. Nor does Kiewit
suggest any specific interpretation of the term “voluntarily”
that would affect the application of Wage Order 16-2001 to
the circumstances of this case. Our circuit has repeatedly
frowned upon defendants who have invoked tangentially
related CBA provisions in a strained and transparent effort to
extinguish state-law claims via preemption. See, e.g., Cramer,
255 F.3d at 694 (“Consolidated cannot create a dispute as to
the meaning of the terms of the CBA by picking out terms
that refer to videotapes and drug use, particularly when a cur-
sory examination of those provisions makes clear they apply
to a completely different context and set of circumstances.”);
Ward v. Circus Circus Casinos, Inc., 473 F.3d 994, 999 (9th
Cir. 2007) (rejecting defendant Circus’s contention that “its
right to direct and control its employees pursuant to the CBA
requires interpretation,” and writing that “[t]he connection
between Circus controlling its employees and using any
amount of physical force against them is even more attenu-
7314 BURNSIDE v. KIEWIT PACIFIC CORP.
ated than the connection held to be insufficient in . . .
Cramer”). We refuse to break from that tradition today.
[15] Certainly, some amount of fact-finding will have to be
done in this case to determine whether Kiewit actually
required its employees to travel on Kiewit-owned and -oper-
ated vehicles from a designated meeting point to the jobsite
and back. The need for a “purely factual inquiry . . . [that]
does not turn on the meaning of any provision of a collective-
bargaining agreement,” however, is not cause for preemption
under section 301. See Lingle, 486 U.S. at 407. In Lingle, the
plaintiff-employee was covered by a CBA that afforded her “a
contractual remedy for discharge”; she sought instead to “en-
force her state-law remedy for retaliatory discharge.” Id. at
401. While under both the contractual and state-law causes of
action the employer would have had to show that “it had a
nonretaliatory reason for the discharge,” the Court disagreed
with the position that “such parallelism renders the state-law
analysis dependent upon the contractual analysis” and found
the employee’s claim not preempted. Id. at 407-08, 413. As
in Lingle, Kiewit cannot maintain that its employees’ claims
are preempted merely because a state court eventually will
have to determine whether the travel was compulsory, even if
a court would have had to undertake the same inquiry to
enforce rights contained in Agreements 1, 4, and 5.17
2
Finally, Kiewit argues that this dispute is really one over
overtime wages, not compensation for compulsory travel
time. As a result, it contends, Burnside’s claims are pre-
empted by section 301 under our decision in Firestone v.
Southern California Gas Co., 219 F.3d 1063 (9th Cir. 2000).
17
Agreements 2 and 3 do not present even the possibility of a parallel
factual inquiry, as those CBAs do not afford the right to compensable,
compulsory travel time.
BURNSIDE v. KIEWIT PACIFIC CORP. 7315
In Firestone, the dispute between the parties was over the
rate paid for overtime work — specifically, whether the
employer had “fail[ed] to provide a ‘premium’ wage rate for
overtime work,” as required by state law. Id. at 1066. We held
that determining whether an employee was receiving a “pre-
mium wage rate” for overtime under a CBA, such that the
employer would be exempt from section 510 of the California
Labor Code,18 was a dispute that could not be resolved with-
out interpretation of the agreement. Id. As a result, we found
the employees’ claims preempted by section 301. Id.
Burnside, in turn, relies on Gregory v. SCIE, LLC, 317 F.3d
1050, 1053 (9th Cir. 2003), to support his contention that pre-
emption is not warranted when there is no dispute over the
“method” of calculating overtime, simply the “result” of such
calculations. In Gregory, the employee claimed that his
employer failed to pay him “premium wage rates” for all
“hours worked in excess of eight hours in one workday and
forty hours in one workweek,” in accordance with section 510
of the California Labor Code. Id. at 1051-52.
[16] The answer to this debate, however, resides in neither
Firestone nor Gregory; rather, it is directly provided by Liva-
das. There, the employee never disputed how much her
employer owed her; she merely disputed the fact that her
18
Section 510 codifies when overtime must be paid and what the over-
time rate will be. See CAL. LAB. CODE § 510. Under section 514 of the
state’s labor code, section 510
do[es] not apply to an employee covered by a valid collective
bargaining agreement if the agreement expressly provides for the
wages, hours of work, and working conditions of the employees,
and if the agreement provides premium wage rates for all over-
time hours worked and a regular hourly rate of pay for those
employees of not less than 30 percent more than the state mini-
mum wage.
CAL. LABOR CODE § 514. Substantially similar versions of sections 510 and
514 also appear in Wage Order 16-2001. See CAL. CODE REGS. tit. 8,
§ 11160 at (3).
7316 BURNSIDE v. KIEWIT PACIFIC CORP.
employer failed to pay her immediately upon discharge. See
512 U.S. at 125 (“There is no indication that there was a ‘dis-
pute’ in this case over the amount of the penalty to which
Livadas would be entitled.”). Still, in Livadas, a court eventu-
ally would “need to ‘look to’ the collective-bargaining agree-
ment for damages computation,” as the statutory penalty
depended on the employee’s wage rate, see 512 U.S. at 125,
and the wage rate was set by the CBA. So recognizing, Liva-
das held that “the mere need to ‘look to’ the collective-
bargaining agreement for damages computation is not reason
to hold the state-law claim defeated by section 301. Id. (citing
Lingle, 486 U.S. at 413 n.12).
[17] Like Livadas, Burnside is not — as in Firestone —
complaining about the wage rate the employees were paid for
certain work, but about the fact that he was not paid at all.
The CBAs all contain provisions governing the regular rate
and the rate of overtime wages. As in Livadas, there is no
indication in this case of any dispute concerning which wage
rate would apply to any or all hours of transportation time, if
those hours are compensable. The basic legal issue presented
by this case, therefore, can be decided without interpreting the
CBA. Depending on how that issue is resolved, damages may
have to be calculated, and in the course of that calculation,
reference to — but not interpretation of — the CBAs, to
determine the appropriate wage rate, would likely be required.19
19
It is of course possible — just as it was in Livadas — that some dis-
pute we cannot now foresee will arise in the course of computing damages
that will require the interpretation of the CBAs. If that contingency even-
tuates, the district court will be able to devise processes to preserve the
preeminent role of the CBAs’ dispute resolution processes to address the
discrete dispute then arising. See Livadas, 512 U.S. at 124 n.18 (noting
that “[h]olding the plaintiff’s cause of action substantively extinguished
may not . . . always be the only means of vindicating the arbitrator’s pri-
macy as the bargained-for contract interpreter”); see also Cramer, 255
F.3d at 691. The alternative Kiewit suggests — preempting the entire
cause of action now, even though the likelihood is that no dispute requir-
ing interpretation of the CBAs will ever arise — would turn section 301
preemption doctrine — into the “mighty oak” we know it is not. See Liva-
das, 512 U.S. at 122.
BURNSIDE v. KIEWIT PACIFIC CORP. 7317
Under Livadas, this need to consult the CBAs to determine
the wage rate to be used in calculating liability cannot, alone,
trigger section 301 preemption.
[18] In short, Burnside’s central claim — that Kiewit must
compensate the employees for time they spent traveling as
required by Kiewit — does not require an “interpretation” of
the CBAs. That claim is therefore not preempted by section
301. That is all that matters for present purposes.
III
[19] In conclusion, Burnside’s claims are not preempted by
section 301 because the right to be compensated for compul-
sory travel time is a right conferred as a matter of state law
that exists independent of the terms of the CBAs, and because
the claims to compensation for that time can be resolved with-
out interpreting these agreements. The district court erred in
concluding otherwise. We therefore vacate the district court’s
orders denying employees’ motion to remand and granting
defendant’s motion for summary judgment, and remand with
instructions for the district court to remand the matter to the
Superior Court of San Diego County.
VACATED AND REMANDED.