Gardner et al v. Shell Oil Company et al

Filing 86

ORDER by Judge Claudia Wilken DENYING DEFENDANTS' 57 MOTION TO DENY PLAINTIFF CLASS CERTIFICATION AND GRANTING PLAINTIFFS' 59 MOTION FOR CLASS CERTIFICATION.(ndr, COURT STAFF) (Filed on 4/21/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DAVID GARDNER; STEVE MATTERN; and
WILLIAM SULLIVAN, individually
and on behalf of all similarly
situated current and former
employees,

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United States District Court
For the Northern District of California

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Plaintiffs,
v.
SHELL OIL COMPANY; SHELL OIL
PRODUCTS COMPANY, LLC; and
EQUILON ENTERPRISES LLC dba SHELL
OIL PRODUCTS US; and DOES 1
through 20, inclusive,

No. C 09-05876 CW
ORDER DENYING
DEFENDANTS' MOTION
TO DENY PLAINTIFF
CLASS
CERTIFICATION AND
GRANTING
PLAINTIFFS' MOTION
FOR CLASS
CERTIFICATION
(Docket Nos. 57 &
59)

Defendants.
________________________________/
Defendants Shell Oil Company, Shell Oil Products Company LLC,
and Equilon Enterprises LLC dba Shell Oil Products US

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(collectively Defendants) move to deny class certification.1
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Docket No. 57.

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Plaintiffs moved to certify a class and subclass.

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2011, the Court held a hearing on the motions.

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all of the parties' papers and oral argument, the Court DENIES

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Defendants' motion and GRANTS Plaintiffs' motion.

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On the same day Defendants filed their motion,
On January 27,

Having considered

(Docket Nos. 57

& 59).

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Shell Oil Company (SOC) is a subsidiary of Royal Dutch
Shell plc, a multinational oil company, and it wholly owns Shell
Oil Products Company LLC (SOPC), which is a minor, indirect owner
of Equilon Enterprises LLC dba Shell Oil Products US (SOPUS).

BACKGROUND

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This action concerns whether Defendants' refinery-wide

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policies and practices deprive Plaintiffs of their state law

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rights to thirty-minute meal periods relieved of all duties, or an

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extra hour of pay in lieu thereof.

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Plaintiffs seek monetary,

injunctive and declaratory relief.

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Defendants have operated the Martinez, California refinery at
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issue in this case since at least April, 2004.

The "shift

United States District Court
For the Northern District of California

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employees" who comprise the putative class are known as Operators.

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Operators are paid hourly, work rotating twelve-hour shifts, and

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are required by refinery policies to remain in communication at

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all times, and to remain on the premises.

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sleeping, reading non-work related materials, using headphones,

They must refrain from

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and using the internet for personal purposes for more than fifteen
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minutes per shift.

There are no set times for meal breaks.

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Operators work as Board Operators and Outside Operators and are

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assigned to one of six departments: Operations Central, Delayed

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Coker, Distillation and Hydroprocessing, Cracked Products,

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Utilities, and Logistics.

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control center, tracking on various screens how a particular unit

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is running.

Board Operators work at a console in a

Outside Operators work outside of the control

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centers, and are responsible for maintaining, monitoring and
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inspecting equipment, as well as responding to directions from

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Board Operators.

In contrast to Operators, employees on a "day

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schedule" generally work between eight and ten hours per day, and
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receive an unpaid thirty-minute meal period free from any work

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responsibilities.

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Outside Operators is required to run the Martinez refinery

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properly.

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Communication between and among Board and

Operators at the refinery are governed by one collective
bargaining agreement (CBA).

There is no written provision in the

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CBA or elsewhere indicating that Operators have consented to waive
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their rights to a thirty-minute meal period.

The CBA states,

United States District Court
For the Northern District of California

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"Whenever operations are continuous, each employee engaged in such

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work shall remain on duty until relieved."

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4.

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covers all putative class members.

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2009 CBA, Exh. 6, p.

The CBA, which has been in effect since at least April, 2004,

Prior to the initiation of this litigation, the Operators'

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union filed a class action against SOC, SOPUS and Tesoro Refining
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and Marketing Company (Tesoro) in the Central District of
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California, United Steel Workers, et al. v. Shell Oil Co., et al.

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(USW Case), 08-cv-03693 RGK.

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violations and other claims on behalf of a proposed state-wide

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class of current and former employees who worked at three separate

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refineries operated by SOC, SOPUS and Tesoro.

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That complaint alleged meal period

The three

refineries included the Martinez refinery that is the focus of

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this case, a Los Angeles area refinery, and a Tesoro refinery and
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chemical plant also located in Martinez.

On August 21, 2009, the

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judge in the USW case denied class certification, in part because

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the proposed classes included employees from multiple refineries
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owned by different companies and governed by different collective

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bargaining agreements.

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Plaintiffs in the USW case shifted course.

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other putative class actions were filed, alleging meal period

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violations and other claims on behalf of shift employees of Shell

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After class certification was denied,
On July 7, 2010, two

and Tesoro at the Los Angeles area refinery.

Thus, the original

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USW case has evolved into four separate cases, each covering the
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United States District Court
For the Northern District of California

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employees of one employer at one refinery.
In the present action, Plaintiffs bring claims under

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California's Unfair Competition Law (UCL), Business & Professions

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Code § 17200 et seq., and California Labor Code §§ 512 and 226.7

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and Industrial Welfare Commission (IWC) Wage Order 1-2001 § 11 for

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failure to provide meal breaks.

Plaintiffs move to certify the

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following class:
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All current and former shift employees of Defendants
Shell Oil Company, Shell Oil Products Company LLC,
and/or Equilon Enterprises LLC dba Shell Oil Products
US who worked at least one 12-hour shift, excluding
any shifts worked as temporary shift supervisors,
since April 25, 2004, at the Martinez refinery
operated by one or more of the Defendants.2

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Plaintiffs also move to certify a subclass of former

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employees suing for failure to pay all wages due at the time of

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The proposed class and subclass definitions provided here
reflect the modified definitions set forth in Plaintiffs' reply
brief in support of their motion for class certification.
Defendants' opposition questioned the presence of temporary shift
workers in the proposed classes. The modified definitions clarify
that Plaintiffs do not seek to include temporary shift supervisors
in the proposed classes.
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discharge or resignation, as required by California Labor Code

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§§ 201, 202, and 203.

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The subclass is defined as:

All former shift employees of Defendants Shell Oil
Company, Shell Oil Products Company LLC, and/or
Equilon Enterprises LLC dba Shell Oil Products US who
worked at least one 12-hour shift, excluding any
shifts worked as temporary shift supervisors, since
April 25, 2004, at the Martinez refinery operated by
one or more of the Defendants, and whose employment
has been terminated by discharge or resignation.

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LEGAL STANDARD

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Plaintiffs seeking to represent a class must satisfy the

United States District Court
For the Northern District of California

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threshold requirements of Rule 23(a) as well as the requirements

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for certification under one of the subsections of Rule 23(b).
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Rule 23(a) provides that a case is appropriate for certification
as a class action if:

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(1) the class is so numerous that joinder of all
members is impracticable;

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(2) there are questions of law or fact common to
the class;

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(3) the claims or defenses of the representative
parties are typical of the claims or defenses of
the class; and

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(4) the representative parties will fairly and
adequately protect the interests of the class.

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Fed. R. Civ. P. 23(a).

Rule 23(b) further provides that a case

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may be certified as a class action only if one of the following is
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true:
(1) prosecuting separate actions by or against
individual class members would create a risk of:
(A) inconsistent or varying adjudications with
respect to individual class members that would
establish incompatible standards of conduct for
the party opposing the class; or
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United States District Court
For the Northern District of California

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(B) adjudications with respect to individual
class members that, as a practical matter,
would be dispositive of the interests of the
other members not parties to the individual
adjudications or would substantially impair or
impede their ability to protect their
interests;
(2) the party opposing the class has acted or
refused to act on grounds that apply generally
to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate
respecting the class as a whole; or
(3) the court finds that the questions of law or
fact common to class members predominate over
any questions affecting only individual members,
and that a class action is superior to other
available methods for fairly and efficiently
adjudicating the controversy. The matters
pertinent to these findings include:
(A) the class members’ interests in
individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by or
against class members;
(C) the desirability or undesirability of
concentrating the litigation of the claims in
the particular forum; and
(D) the likely difficulties in managing a class
action.

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Fed. R. Civ. P. 23(b).

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for class certification under subdivisions (b)(3).

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Plaintiffs assert that this case qualifies

A district court may certify a class only if it determines

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that the plaintiff has borne its burden of demonstrating that each

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element of Rule 23 is satisfied.

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General Tel. Co. v. Falcon, 457

U.S. 147, 158-61 (1982); Doninger v. Pac. Nw. Bell, Inc., 564 F.2d

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1304, 1308 (9th Cir. 1977).

"[W]hen considering class

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certification under Rule 23, district courts are not only at
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liberty to, but must, perform a rigorous analysis to ensure that

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the prerequisites of Rule 23 have been satisfied, and this

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analysis will often, though not always, require looking behind the

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pleadings to issues overlapping with the merits of the underlying

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claims."

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Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 594 (9th

Cir. 2010) (en banc) (certiorari granted).

Nevertheless,

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"district courts may not analyze any portion of the merits of a
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United States District Court
For the Northern District of California

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claim that do not overlap with the Rule 23 requirements."

Id.

The court need not accept conclusory or generic allegations

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regarding the suitability of the litigation for resolution through

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class action.

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141 F.R.D. 144, 152 (N.D. Cal. 1991).

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consider supplemental evidentiary submissions of the parties.

Burkhalter Travel Agency v. MacFarms Int’l, Inc.,
In addition, the court may
In

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re Methionine Antitrust Litig., 204 F.R.D. 161, 163 (N.D. Cal.
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2001); see also Moore v. Hughes Helicopters, Inc., 708 F.2d 475,
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480 (9th Cir. 1983) (noting that “some inquiry into the substance

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of a case may be necessary to ascertain satisfaction of the

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commonality and typicality requirements of Rule 23(a)” although

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“it is improper to advance a decision on the merits at the class

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certification stage”).

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Ultimately, it is in the district court’s

discretion whether a class should be certified.

Molski v. Gleich,

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318 F.3d 937, 946 (9th Cir. 2003); Burkhalter, 141 F.R.D. at 152.
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DISCUSSION

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I. Ascertainable Class
“An adequate class definition specifies ‘a distinct group of

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plaintiffs whose members [can] be identified with particularity.’”

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Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 593 (E.D.

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Cal. 2008) (quoting Lerwill v. Inflight Motion Pictures, Inc., 582

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F.2d 507, 512 (9th Cir. 1978).

“The identity of class members

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must be ascertainable by reference to objective criteria.”

United States District Court
For the Northern District of California

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5 James W. Moore, Moore’s Federal Practice, § 23.21[1] (2001).

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Thus, a class definition is sufficient if the description of the

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class is “definite enough so that it is administratively feasible

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for the court to ascertain whether an individual is a member.”

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O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal.

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1998).
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At the outset, Defendants argue that the proposed classes are
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ambiguous because the term "shift employee" has a commonly-

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accepted definition that is contradicted by the proposed class

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definitions.

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worker" is one who works on a rotating shift schedule.

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that, at the refinery, there are no such workers assigned to

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Defendants assert that a "shift employee" or "shift
They claim

eight- or ten-hour "shifts" because those schedules are limited to

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day workers, who do not relieve a departing employee.

The class

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definitions refer to "All current and former shift

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employees . . . who worked at least one 12-hour shift."

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Defendants point out an apparent redundancy in the wording of the
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Thus,

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proposed class definitions.

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definitions indefinite.

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with Shell's counsel, and the parties agreed that the proposed

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class would be limited to employees who worked twelve-hour shifts.

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Fang Decl. in Support of Plaintiffs' Opposition to Defendants'

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Mot. to Dismiss ¶ 9.

This is not a basis to find the class

Plaintiffs discussed the class definition

Defendants do not dispute that members of

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the proposed class can be identified from their timekeeping and
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payroll records.

Accordingly, the Court finds that the class

United States District Court
For the Northern District of California

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definitions are sufficiently particular and ascertainable.

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II.

Rule 23(a) Requirements

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A.

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“The prerequisite of numerosity is discharged if ‘the class

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Numerosity

is so large that joinder of all members is impracticable.’”

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Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998)
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(quoting Fed. R. Civ. P. 23(a)(1)).

See also 1 Alba Cone &

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Herbert B. Newberg, Newberg on Class Actions § 3.3 (4th ed. 2002)

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(where “the exact size of the class is unknown, but general

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knowledge and common sense indicate that it is large, the

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numerosity requirement is satisfied”).

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there are an estimated 300 to 500 members of the proposed class at

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the Martinez refinery.

Plaintiffs contend that

In their Notice of Removal, filed pursuant

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to the Class Action Fairness Act, Defendants indicated, "From
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April 24, 2005 to the filing of the Complaint, Defendants had on

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average approximately 280 potential class members at their

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Martinez California refinery."

Notice of Removal at ¶ 11.
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Courts

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have found that joinder is impracticable in cases with as few as

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forty class members.

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258, 262 (S.D. Cal. 1998).

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Court finds, that Plaintiffs satisfy the numerosity requirement.

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B.

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Ikonen v. Hartz Mountain Corp., 122 F.R.D.
Defendants do not dispute, and the

Commonality

Rule 23 contains two related commonality provisions.

Rule

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23(a)(2) requires that there be “questions of law or fact common
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to the class.”

Fed. R. Civ. P. 23(a)(2).

Rule 23(b)(3), in turn,

United States District Court
For the Northern District of California

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requires that such common questions predominate over individual

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ones.

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The Ninth Circuit has explained that Rule 23(a)(2) does not

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preclude class certification if fewer than all questions of law or

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fact are common to the class:

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The commonality preconditions of Rule 23(a)(2)
are less rigorous than the companion
requirements of Rule 23(b)(3). Indeed, Rule
23(a)(2) has been construed permissively. All
questions of fact and law need not be common to
satisfy the rule. The existence of shared legal
issues with divergent factual predicates is
sufficient, as is a common core of salient facts
coupled with disparate legal remedies within the
class.
Hanlon, 150 F.3d at 1019.
Rule 23(b)(3), in contrast, requires not just that some
common questions exist, but that those common questions
predominate.

In Hanlon, the Ninth Circuit went on to discuss the

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relationship between Rule 23(a)(2) and Rule 23(b)(3):
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The Rule 23(b)(3) predominance inquiry tests
whether proposed classes are sufficiently
cohesive to warrant adjudication by
representation. This analysis presumes that the
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existence of common issues of fact or law have
been established pursuant to Rule 23(a)(2);
thus, the presence of commonality alone is not
sufficient to fulfill Rule 23(b)(3). In
contrast to Rule 23(a)(2), Rule 23(b)(3) focuses
on the relationship between the common and
individual issues. When common questions
present a significant aspect of the case and
they can be resolved for all members of the
class in a single adjudication, there is clear
justification for handling the dispute on a
representative rather than on an individual
basis.
Id. at 1022 (citations and internal quotation marks omitted).
Plaintiffs contend that there are numerous common questions,

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United States District Court
For the Northern District of California

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including Defendants' obligations to provide a thirty-minute meal

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period relieved of all duties, pursuant to California Labor Code

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§§ 226.7 and 512 and IWC Wage Order 1-2001 § 11.

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More precisely,

the case presents the questions of whether the policies and

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practices requiring Operators to remain on the refinery premises
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and in close proximity to their work areas, and to remain in

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constant communication with co-workers and supervisors via company

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radio, while barring them from sleeping, reading non-work related

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materials, watching movies, or using the Internet for more than

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fifteen minutes per shift, deprive putative class members of

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thirty-minute meal periods relieved of all duties in accordance

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with law.
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In addition, there exists the question of whether Defendants
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are liable for penalties under California Labor Code §§ 201

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through 203.

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pay an employee's remaining wages earned but unpaid upon the

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employee's termination or resignation.

Sections 201 and 202 prescribe when an employer must

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Section 203 imposes

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penalties for failure to comply with these requirements.

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question of liability for waiting-time penalties, as penalties

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under Section 203 are often described, turns on whether Defendants

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were obliged to pay the former employees one hour of premium pay

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for each shift during which they worked while subject to the

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The

policies described above.

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Defendants offer only a conclusory argument that Plaintiffs
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have failed to satisfy the commonality requirement under Rule

United States District Court
For the Northern District of California

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23(a)(2).

In their motion to deny class certification, Defendants

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state, in regards to the challenged requirements and restrictions,

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"These common questions are not sufficient."

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Cert. at 13.

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the commonalities, but not their existence.

Mot. to Deny Class

Defendants appear to challenge the sufficiency of
Defendants' opening

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brief and reply, as well as their opposition to Plaintiffs' motion
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for class certification provide no further explanation about why
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Plaintiffs have failed to satisfy the commonality requirement.

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Defendants' bare assertions are unpersuasive; Plaintiffs have

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demonstrated the existence of questions and issues common to the

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class.

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To the extent Defendants intended to defeat a finding of
commonality by providing an extensive recitation of the various

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duties carried out by members of the proposed class, these
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distinctions are irrelevant because the policies and practices at
issue are applicable to all Operators.

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C.

Typicality

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The typicality prerequisite of Rule 23(a) is fulfilled if

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“the claims or defenses of the representative parties are typical

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of the claims or defenses of the class.”

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23(a)(3).

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Fed. R. Civ. P.

The test for typicality is "whether other members have

the same or similar injury, whether the action is based on conduct

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which is not unique to the named plaintiffs, and whether other
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class members have been injured by the same course of conduct."

United States District Court
For the Northern District of California

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Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)

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(quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)).

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Defendants do not contest that named Plaintiffs have claims

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typical of class members.

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Rule 23's typicality requirement.

The Court finds that Plaintiffs satisfy

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D. Adequacy
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Rule 23(a)(4) requires that "the representative parties will
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fairly and adequately protect the interests of the class."

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R. Civ. P. 23(a)(4).

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assertion that they satisfy the adequacy requirement and the Court

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finds that they do.

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III. Class Certification Under Rule 23(b)

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A.

Fed.

Defendants do not dispute Plaintiffs'

Rule 23(b)(2)

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"Claims for money relief may be certified as part of a Rule
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23(b)(2) class, but the rule 'does not extend to cases in which

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the appropriate final relief relates exclusively or predominantly

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to money damages.'"

Wang v. Chinese Daily News, Inc., 623 F.3d
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743, 753 (9th Cir. 2010) (internal quotation marks omitted)

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(citing Dukes, 603 F.3d at 615 n.38).

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Citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 412-16

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(5th Cir. 1998), Defendants contend that monetary relief in this

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case predominates because Plaintiffs seek damages for alleged

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unpaid wages and waiting-time penalties.

However, the Ninth

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Circuit has expressly rejected the Allison approach to determining
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whether monetary relief in a given case disqualifies the class
In Wang, the Ninth

United States District Court
For the Northern District of California

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from certification under Rule 23(b)(2).

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Circuit explained, "In Dukes, we rejected as 'deficient' . . . the

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Allison 'incidental damages standard' that permits certification

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of claims for monetary relief under Rule 23(b)(2) only when they

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are 'incidental to requested injunctive or declaratory relief,'

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because it is unduly restrictive."

623 F.3d at 753-54.

In this

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circuit, Rule 23(b)(2) is interpreted to require "only that claims
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for monetary relief not predominate over claims for injunctive

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relief" and certification is acceptable when the claims are on

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"equal footing."

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Id. at 754.

Plaintiffs in the present case, like those in Wang, have a
substantial claim for injunctive relief because they seek to end
long-standing employment policies.

Id.

The claims for injunctive

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and monetary relief are closely related because back wages are
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sought for those who were deprived of lawful meal periods due to

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the policies Plaintiffs seek to enjoin.

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relationship, the request for monetary relief does not introduce
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As a result of this close

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"new and significant legal and factual issues," nor raise

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particular due process or case management concerns.

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Furthermore, courts have held that back wages are a form of relief

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that may be permitted in a Rule 23(b)(2) action.

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at 618-19 (holding that back pay in a Title VII case is fully

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Id.

Dukes, 603 F.3d

consistent with certification of a Rule 23(b)(2) class action and

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noting that "every circuit to have addressed the issue has
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acknowledged that Rule 23(b)(2) does allow for some claims for
In Dukes, the Ninth Circuit reasoned that

United States District Court
For the Northern District of California

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monetary relief.").

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back pay in the Title VII context generally involves relatively

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uncomplicated factual determinations and few individualized

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issues, and is an integral component of Title VII's "make whole"

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remedial scheme.

Id. at 619.

Nor are waiting-time penalties so

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significant or complex that they render Plaintiffs' monetary claim
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predominant over their request for injunctive relief.
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Accordingly, class certification under Rule 23(b)(2) is warranted.

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B.

Rule 23(b)(3)--Predominance

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Defendants challenge the predominance of common questions

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sufficient to support class certification.

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predominance inquiry tests whether proposed classes are

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“The Rule 23(b)(3)

sufficiently cohesive to warrant adjudication by representation.”

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Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).

“When

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common questions present a significant aspect of the case and they

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can be resolved for all members of the class in a single

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adjudication, there is clear justification for handling the
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dispute on a representative rather than an individual basis.”

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Hanlon, 150 F.3d at 1022 (internal quotation marks omitted).

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common issues must only predominate; they do not have to be

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dispositive of the litigation.”

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Antitrust Litig., 202 F.R.D. 12, 29 (D.D.C. 2001).

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“The

In re Lorazepam & Clorazepate

To determine whether the predominance requirement is

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satisfied, “courts must identify the issues involved in the case
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and determine which are subject to ‘generalized proof,’ and which

United States District Court
For the Northern District of California

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must be the subject of individualized proof.”

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Random Access Memory (DRAM) Antitrust Litig., 2006 WL 1530166, at

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*6 (N.D. Cal.).

13
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In re Dynamic

Plaintiffs assert that they will be able to provide
generalized evidence of the allegedly unlawful meal period

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policies and practices at the Martinez refinery with proof of
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Defendants' written policies and deposition testimony of
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Defendants' representatives.

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class action is a superior method to resolve the dispute because

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hundreds of individual claims would exhaust judicial resources and

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use time inefficiently.

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in the putative class would have sufficient incentive to pursue

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Plaintiffs further contend that a

It is also unlikely that the wage earners

their claims as individuals.

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Defendants' first argument is that meal period claims are not
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susceptible to class treatment under Rule 23(b)(3) because an

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employer need only make meal periods available to eligible

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employees.

Accordingly, Defendants assert that each claim
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requires an individualized inquiry to determine whether Defendants

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thwarted the meal period, or the employee simply chose not to take

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it.

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Defendants, however, do not state the full extent of the

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protection provided by California Labor Code §§ 512 and 226.7 and

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IWC Wage Order 1-2001 § 11, and disregard the nature of

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Plaintiffs' claims.

California Labor Code § 512 generally

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requires employers to provide employees with meal periods of at

United States District Court
For the Northern District of California

10

least thirty minutes at intervals depending on the number of hours

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worked in a given day.

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California Labor Code § 226.7 states that no employer shall

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require any employee to work during any meal period established by

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an applicable IWC Wage Order.

Cal. Labor Code § 512(a).

In turn,

Under IWC Wage Order 1-2001

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§ 11(C), "[u]nless the employee is relieved of all duty during a
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30 minute meal period, the meal period shall be considered an 'on
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duty' meal period and counted as time worked."

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period is permitted when the "nature of the work prevents an

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employee from being relieved of all duty and when by written

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agreement between the parties an on-the-job paid meal period is

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agreed to."

IWC Wage Order 1-2001 § 11(C).

An "on duty" meal

Section 226.7 also

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mandates one additional hour of pay at the employee's regular rate
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of compensation for each work day that a meal period is not

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provided in accordance with an applicable IWC Wage Order.

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Labor Code § 226.7(b).

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Cal.

1

Under California's meal period provisions, "[i]t is an

2

employer's obligation to ensure that its employees are free from

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its control for thirty minutes, not to ensure that employees do

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any particular thing during that time."

5

Corp., 249 F.R.D. 580, 585 (C.D. Cal. 2008) (applying Murphy v.

6

Brown v. Federal Express

Kenneth Cole Productions., Inc., 40 Cal. 4th 1094, 1104 (2007)).

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Employers are obliged "not to force employees to work through
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breaks."

Id. at 585 (citing Murphy, 40 Cal. 4th at 1104).

United States District Court
For the Northern District of California

10

Accordingly, Plaintiffs claim that Defendants' refinery-wide

11

policies, requiring all Operators to remain on the premises, close

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to their work stations, to respond to radio calls and alarms

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throughout their shifts, to remain responsible for assigned units

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at all times, and to refrain from engaging in common break-time

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activities, deprived Operators of off-duty thirty-minute meal
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periods.

Essentially, Plaintiffs claim that Defendants have not

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relinquished sufficient control over Operators during their meal

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breaks so as to make available an off-duty meal break and, thus,

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the Operators are entitled to payment of an hour's premium wage

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for each on-duty meal break.

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presented by Plaintiffs' claims plainly predominate over any

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In this respect, the common issues

individual issues.

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Defendants assert that, as a matter of law, the policies and
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practices that are the focus of this suit do not deprive

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Plaintiffs of an off-duty meal break.

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the merits of Plaintiffs' claims based on the present motions.
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The Court need not resolve

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However, for purposes of class certification, Plaintiffs' claims

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are adequately supported by law.

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2010, Judge Klausner granted summary judgment in favor of the

4

plaintiffs on their meal break claims, which were based on the

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same restrictions and requirements attacked in this action.

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In the USW case, on August 27,

After

analyzing Labor Code §§ 226.7 and 512(a), IWC Wage Order 1-2001

7
§ 11, and related case law, the court found that the plaintiffs
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United States District Court
For the Northern District of California

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had established that they were not relieved of all duty during
their meal breaks.
Defendants argue that an employee is not "on duty" simply

12

because the employee must remain on the premises.

13

this proposition, Defendants selectively quote from the website

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for the California Department of Industrial Labor Relations'

In support of

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Division of Labor Standards Enforcement (DLSE).

The DLSE is the

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state division charged with enforcing IWC Wage Orders, and the
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18

webpage quoted is intended to answer frequently asked questions

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about the laws and regulations governing meal periods in

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California.

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However the relevant text quoted in full states,

[Y]our employer can require that you remain on its
premises during your meal period, even if you are
relieved of all work duties. However if that occurs,
you are being denied your time for your own purposes
and in effect remain under the employer's control and
thus, the meal period must be paid.3
Thus, the DLSE's explanation is contrary to Defendants' position.

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27
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3

http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm (last
revised March 7, 2008).
19

Likewise, Defendants cite Berry v. County of Sonoma, 30 F.3d

1
2

1174 (9th Cir. 1994), for the proposition that a meal break is not

3

"on duty" time simply because an employee must carry a radio.

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Berry, county coroners filed suit pursuant to the Fair Labor

5

Standards Act, seeking overtime compensation for time spent

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waiting on call.

In

The Ninth Circuit reversed the district court's

7
grant of summary judgment in favor of the plaintiffs.

The Ninth

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9

Circuit held that the coroners were not entitled to overtime

United States District Court
For the Northern District of California

10

compensation because their agreements evidenced that they had

11

accepted the County's overtime compensation policy, and they were

12

able to use on-call time effectively for personal pursuits.

13

present action, however, is distinguishable from Berry because the

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Operators' personal pursuits and geographic location are

The

15
substantially more restricted than those of the coroners waiting
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on call.
17
Because the common questions in this case predominate over

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19

the individualized issues, and a class action is a superior method

20

of resolving the disputes presented, the Court finds that Rule

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23(b)(3) is satisfied.

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CONCLUSION

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Plaintiffs have met the requirements of Rule 23, and the

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Court grants their motion for class certification, while denying
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Defendants' motion to deny class certification.
57.

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Docket No. 59 &

1

The following class is certified:

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All current and former shift employees of Defendants
Shell Oil Company, Shell Oil Products Company LLC,
and/or Equilon Enterprises LLC dba Shell Oil Products
US who worked at least one 12-hour shift, excluding
any shifts worked as temporary shift supervisors,
since April 25, 2004, at the Martinez refinery
operated by one or more of the Defendants.

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The following subclass is certified:

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9

United States District Court
For the Northern District of California

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11

All former shift employees of Defendants Shell Oil
Company, Shell Oil Products Company LLC, and/or
Equilon Enterprises LLC dba Shell Oil Products US who
worked at least one 12-hour shift, excluding any
shifts worked as temporary shift supervisors, since
April 25, 2004, at the Martinez refinery operated by
one or more of the Defendants, and whose employment
has been terminated by discharge or resignation.

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13

IT IS SO ORDERED.

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Dated: 4/21/2011

CLAUDIA WILKEN
United States District Judge

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