Perez v. Workers' Compensation Appeals Board ( 1984 )

Opinion

WOODS, P. J.

Petitioner Joseph Perez seeks review of the order of respondent Workers’ Compensation Appeals Board denying reconsideration of the order and findings of the workers’ compensation judge disallowing benefits to Perez for injuries sustained while he was en route from his workplace to attend a specially called union meeting. As we shall explain, petitioner is entitled to relief.

In October 1982, petitioner was employed as a tank test mechanic by McDonnell Douglas Corporation. He was also a member of the United Auto Workers Union. The existing union contract had expired, but the union member employees remained working under the old contract. Numerous aircraft projects were in progress at the company, including a new DC 9 Super Jet which the company was introducing in competition with Boeing Aircraft. The company was in negotiations with the union for a new contract in order to ward off a strike. Company officers periodically announced over the public address system at its plant the progress of the negotiations “for the purpose of providing some urgency or getting production going or keeping it going.”

Petitioner was not an official of the union, but he was a member of the local bargaining unit, qualified to vote on ratification. He was aware of the negotiations between the company and the union, and he testified that he had been “on strike” on a previous occasion.

A proposed contract was negotiated, and the company posted a notice at the workplace that members of the union who worked the “first shift” (7 a.m. to 3:30 p.m.) could “clock out” at 11:30 a.m. on October 17, 1980, to attend the ratification meeting, called by the union to vote on ratification of the contract. The notice stated that the members of the first shift were not expected to return to the workplace after the meeting, that members on the second shift could report to work after the meeting, and that “[t]he company hopes that a positive ratification vote will result from this action. ...”

This trip was contemplated by and consented to by the employer. Wages were paid to the first shift employees only for the time worked before they clocked out. No wages or other expenses were paid for time spent during this meeting or in traveling to or from it.

At 11:30 a.m. on October 17, 1982, petitioner and a coworker on the first shift clocked out and proceeded in the coworker’s automobile to the Los Angeles Convention Center where this specially called meeting was being held.¹ En route the automobile collided with another automobile, resulting in the serious injuries for which petitioner seeks compensation benefits.

The workers’ compensation judge found that petitioner’s injuries were not sustained in the course of his employment, since he came within the “going and coming” rule and did not come within the “special mission” exception to the rule. In his report on reconsideration, the judge concluded that the facts herein were distinguishable from the facts in a prior decision by the board in Xerox Corporation v. Workmen’s Comp. Appeals Bd. (1968) 33 Cal.Comp. Cases 178. The board adopted the judge’s report and denied reconsideration.

The “going and coming” rule provides that in the absence of special circumstances an employee is barred from compensation for injuries suffered while traveling to or from the workplace. (Parks v. Workers’ Comp. Appeals Bd. (1983) 33 Cal.3d 585, 589, fn. 1 [190 Cal.Rptr. 158, 660 P.2d 382]; Hinojosa v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157 [104 Cal.Rptr. 456, 501 P.2d 1176].) The rule precludes compensation for injuries sustained “during a local commute enroute to a fixed place of business at fixed hours in the absence of special or extraordinary circumstances.” (Hinojosa, supra, at p. 157; General Ins. Co. v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 595, 598 [128 Cal.Rptr. 417, 546 P.2d 1361]; Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 535 [163 Cal.Rptr. 750].) Thus, ordinarily, the rule operates to preclude compensation for injury which occurs while an employee is driving to or from work (Dimmig v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal.3d 860, 866 [101 Cal.Rptr. 105, 495 P.2d 433]), on the theory that the employer-employee relationship is suspended from the time the employee leaves the workplace until he resumes work (Bramall v. Workers’ Comp. Appeals Bd. (1978) 78 Cal.App.3d 151, 157 [144 Cal.Rptr. 105]).

The going and coming rule is, however, a judicially created rule that has been widely criticized and excepted to the point where the rule has been swallowed by the exceptions. (See Parks v. Workers’ Comp. Appeals Bd., supra, 33 Cal.3d at p. 589; Hinojosa v. Workmen’s Comp. Appeals Bd., supra, 8 Cal.3d at p. 156; Schreifer v. Industrial Acc. Com. (1964) 61 Cal.2d 289, 291 [83 Cal.Rptr. 352, 391 P.2d 832]; Bramall v. Workers’ Comp. Appeals Bd., supra, 78 Cal.App.3d at p. 156.)

Among the exceptions to the rule is the “special mission” or “special errand” exception. (Schreifer v. Industrial Acc. Com., supra, 61 Cal.2d at p. 291; see Southern California Rapid Transit Dist., Inc. v. Workers’ Comp. Appeals Bd. (1979) 23 Cal.3d 158, 166 [151 Cal.Rptr. 666, 588 P.2d 806]; General Ins. Co. v. Workers’ Comp. Appeals Bd., supra, 16 Cal.3d at p. 601; Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd., supra, 104 Cal.App.3d at p. 535; Xerox Corporation v. Workmen’s Comp. Appeals Bd., supra, 33 Cal.Comp.Cases at pp. 179-180; 2 Hanna, Cal. Law of Employee Injuries and Workmen’s Compensation (2d ed. 1983) § 9.03(3)(c)(iv).)

Under the special mission exception, an injury sustained by an employee during his regular commute is compensable if he was also performing a special mission for his employer. (Southern California Rapid Transit Dist., Inc. v. Workers’ Comp. Appeals Bd., supra, 23 Cal.3d at p. 166.) A study of cases has shown that the rationale for the going and coming rule has in effect been abandoned in the special mission cases. (Schreifer v. Ind. Acc. Com., supra, 61 Cal.2d at p. 291, fn. 1.)

An injury sustained by an employee attending a regularly scheduled union business meeting was held noncompensable on the grounds that the business conducted in no way benefited the employer. (Pacific Ind. Co. v. Industrial A. Com. (Kendall) (1938) 27 Cal.App.2d 499 [81 P.2d 572].) That rationale is not applicable to the facts before us. Many courts have found a “special mission” and/or a “dual purpose” in activity which we believe to be far less related to the employer-employee relationship than the instant employee’s permitted attendance at a specially called union meeting, held for the specified purpose of attempting to avoid a strike by ratification of the contract of employment. (See Dimmig v. Workmen’s Comp. Appeals Bd., supra, 6 Cal.3d 860; Schreifer v. Ind. Acc. Com., supra, 61 Cal.2d 289; Bramall v. Workers’ Comp. Appeals Bd., supra, 78 Cal.App.3d 151; Shell Oil Co. v. Industrial Acc. Com. (1962) 199 Cal.App.2d 426 [18 Cal.Rptr. 540]; Boynton v. McKales (1956) 139 Cal.App.2d 777, 789; L. A. Jewish etc. Council v. Ind. Acc. Com. (1949) 94 Cal.App.2d 65 [209 P.2d 991].)

In the circumstances here, McDonnell Douglas clearly had a vested interest in consummation of a viable contract with the union.² The existing contract had expired, substantial projects were in production, the employees were working on the projects while the company was endeavoring to negotiate a new contract, the company was periodically reporting progress of the negotiations to the employees over its public address system in order to encourage urgency in maintaining production. The company, at the request of the UAW, permitted the employees, as a special one time only accommodation, to attend the ratification meeting. Clearly the company hoped a positive ratification vote would ensue. Employee attendance would tend to ensure a plurality of members and be more likely to achieve an effective vote on ratification. Thus, petitioner’s attendance at the meeting was substantially connected to the employment and materially benefited the employer. (See Shell Oil Co. v. Industrial Acc. Com., supra, 199 Cal.App.2d at p. 429.)

Where, as here, the pertinent facts are not in dispute, the question whether the employee sustained injury in the scope of his employment presents a question of law; and the reviewing court is not bound by the board’s conclusionary findings on that issue. (Bramall v. Workers’ Comp. Appeals Bd., supra, 78 Cal.App.3d at p. 155; see Dimmig v. Workmen’s Comp. Appeals Bd., supra, 6 Cal.3d at p. 864.)

Consequently, we conclude as a matter of law that the board erred in determining that petitioner did not sustain injuries arising out of and in the course of his employment.

The order of respondent board denying reconsideration and the findings and order of the workers’ compensation judge are annulled; and the matter is remanded for further proceedings consistent with the views expressed herein.

Kingsley, J., concurred.

1 Regular union meetings were held at the UAW union hail.

2 Such a vested interest was implicitly acknowledged by the Board in its decision in Xerox Corporation v. Workmen’s Comp. Appeals Bd., supra, 33 Cal.Comp.Cases 178, 180.