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Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services

February 2, 2009

AMALGAMATED TRANSIT UNION LOCAL 1309, AFL-CIO; GREGORY PASSMORE; RONALD G DUNCAN; TIMOTHY THURMANN; SAMUEL J FRANK; ALEXANDER BRADLEY; REPRESENTATIVE; MICHELE L BOSWELL; JOHN A TAYLOR; TERRENCE SANDIDGE; KUNIYUKI KASHIUAGI; GWENAIDA COLE; LELA SHIPMAN; SHARON K HARRIS; FABIS HORTON, III; PHILIP BINGMAN, PLAINTIFF,
v.
LAIDLAW TRANSIT SERVICES, INC.; LAIDLAW TRANSIT SERVICES, INC. DBA LAIDLAW; FIRST TRANSIT INC; FIRST TRANSIT INC DBA SAN DIEGO METROPOLITAN TRANSIT SYSTEM, DOES I THROUGH XXV, DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER (1) DESIGNATING CLASS (2) CERTIFYING THE CLASS PURSUANT TO FED. R. CIV. P. 23(b)(3); (3) APPOINTING CLASS COUNSEL

Plaintiff Amalgamated Transit moves the Court to designate a class representative, certify a class pursuant to Fed. R. Civ. P. 23(b)(3), and appoint class counsel. Defendant Laidlaw Transit filed an opposition and plaintiff replied.

BACKGROUND

A. Factual

Plaintiff is a labor union and the assignee of approximately 50 meal and rest period violation claims transferred from proposed class members. Plaintiff moves to certify the following class:

All bus operator employees of Defendant Laidlaw, driving bus routes associated with San Diego Metropolitan Transit System in or around the City of El Cajon, California, at anytime between October 1, 2001 and January 27, 2007, in a unit presently represented for purposes of collective bargaining by Amalgamated Transit Union Local 1309. (Pl. Motion at 2, Doc. No. 136.)

Defendant contracted with San Diego Metropolitan Transit System ("MTS") to operate fixed route bus services for the City of El Cajon, California.*fn1 MTS established both the path and schedule for each route. During the class period, defendant employed more than 400 drivers.

Some of the routes included scheduled recovery time.*fn2 The recovery time varied between five minutes and twenty minutes, but did not necessarily reflect actual recovery time. Drivers had other break opportunities, including "10-6 breaks," bus breakdown breaks, and transition period breaks.*fn3

Defendant assigned routes based on a "bid packages." Each bid package contained assignments for various days of the week, times the driver would work, and routes the driver would drive. Drivers bid on the packages based on seniority. As part of the bidding process, drivers signed waivers in which they agreed to work "on-duty" meal periods. This meant drivers agreed to forgo formal meal breaks in exchange for compensation. The parties dispute whether the waiver was voluntarily.

Twelve drivers filed declarations in support of the instant motion, alleging they worked at least 5 hours per day, including at least 3.5 consecutive hours per day. ( Frank Dcl. ¶6.; Pillow Dcl. ¶ 6; Duncan Dcl. ¶ 7.) Defendant allegedly did not offer 30 minute meal periods after drivers worked 5 consecutive hours. Defendant also allegedly did not offer 10 minute rest periods after drivers worked 3.5 consecutive hours. Defendant allegedly did not compensate drivers for the missed breaks.

B. Procedural

Defendant removed this action from California state court on June 9, 2005. The first claim in plaintiff's complaint alleges defendant violated various provisions of the California Labor Code and Wage Order 9 by failing to provide compliant meal or rest periods to its drivers.*fn4 (Compl. ¶¶ 16-33.) The second claim alleges a violation of California's Unfair Competition Law ("UCL"), codified at Business and Professions Code section 17200, et seq., based on the same conduct. (Compl. ¶¶ 34-36.) The complaint seeks unpaid wages, penalties pursuant to the Labor Code § 558 and Wage Order 9, penalties pursuant to Labor Code § 203 arising from the nonpayment of full wages upon termination, and restitution pursuant to the UCL claim.

Plaintiff filed the instant motion requesting the Court to certify the class, appoint plaintiff class representative, and appoint class counsel. In support of its motion, plaintiff submitted 12 driver declarations, a declaration of union representative Steve Alcove, and the declaration of plaintiff's counsel. Defendant filed an opposition, evidentiary objections, three declarations, and two notice of lodgements of exhibits. Plaintiff filed a reply and the Court heard oral argument on January 12, 2009.

LEGAL STANDARD

A. Class Certification

Rule 23 of the Federal Rules of Civil Procedure governs the certification of a class in federal court. As a threshold matter, the class must meet all four requirements of Rule 23(a). These four requirements are often referred to as numerosity, commonality, typicality, and adequacy. Hunt v. Check Recovery Sys., Inc., 241 F.R.D. 505 (N.D. Cal. 2007). First, the class must be so numerous that joinder of all members individually is "impracticable." See Fed. R. Civ. P. 23(a)(1). Second, there must be questions of law or fact common to the class. Id. (a)(2). Third, the claims or defenses of the class representative must be typical of the claims or defenses of the class. Id. (a)(3). Fourth, the person representing the class must be able to protect fairly and adequately the interests of all members of the class. Id. (a)(4).

If plaintiff satisfies the Rule 23(a) prerequisites, the court then determines whether to certify the class under one of the three subsections of Rule 23(b). In this case, plaintiff relies upon Rule 23(b)(3), which requires plaintiffs establish: (1) questions of law or fact common to the class predominate and (2) a class action is superior to other methods available for adjudicating the controversy at issue. See Fed. R. Civ. P. 23(b)(3).

When conducting a Rule 23 inquiry, "the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). "At this early stage of the litigation, the Court must only determine if the plaintiffs have proffered enough evidence to meet the requirements of FRCP 23, not weigh competing evidence." Wang v. Chinese Daily News, Inc., 231 F.R.D. 602, 605 (C.D. Cal. 2005) (citation omitted). The court exercises broad discretion in granting or denying a motion for class certification. See Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003); Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1175 (9th Cir. 2007) ("The district court's decision to certify this class is subject to very limited review and will be reversed only upon a strong showing that the district court's decision was a clear abuse of discretion.") (citation omitted).

B. Applicable California Law

Pursuant to the California Labor Code and Industrial Welfare Commission Wage Orders Nos. 9-2000 and 9-2001 ("Wage Order 9"), proposed class members are entitled to receive daily meal periods and rest periods, or compensation in lieu thereof. Failure to provide meal and/or rest periods subjects the offending employer to penalties as set forth in Labor Code § 558 and Section 20 of IWC Wage Order No. 9. A failure to pay an employee full compensation due at the time of the termination of the employee, entitles the employee who has been shorted his/her full wages at termination to penalties described in Labor Code § 203.

DISCUSSION

Defendant argues plaintiff fails to present sufficient evidence to support class certification. Defendant argues plaintiff cannot meet the Rule 23(a) requirements or the Rule 23(b)(3) requirements.

I. Motion to Certify the Class

A. Sufficiency of the ...


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