MMD Newswire: Press Release News Wire

 

The case of Wisniewski v. PMA was initially filed by the law firm of MOWER CARREON AND DESAI, LLP on April 1, 2003 as a class action brought on behalf of all Casual longshoremen in the State of California.  The case encompassed three distinct claims on behalf of Plaintiffs that formed the basis of recovering unpaid and unlawfully withheld wages, liquidated damages and statutory penalties as money owed to Plaintiff Casual longshoremen employed by Defendants.

 

Defendant Pacific Maritime Association (PMA) is an organization of steamship, stevedoring and terminal companies employing Casual longshoremen such as Plaintiffs and doing business along the Pacific Coast.  Twenty-five of those steamship, stevedoring and terminal companies constitute the “PMA Member Companies.”  This organization is bound by PMA bylaws and its Board of Directors who manage the business and affairs of the company.  PMA allocates labor to its “Member Companies.”  It provides for the use of both “registered” (Union) and “unregistered” (non-Union) longshoremen.  All longshoremen fall under one of four classifications – fully registered or Class A; limited registered or Class B, identified Casuals and unidentified Casuals.  Plaintiffs’ action was brought on behalf of those non-union longshoremen who worked in the latter two classifications in California from April 1, 1999 to June 16, 2006.  
 

The class consisted of approximately 12,000 Casual longshoremen separated into four sub-classes.  Plaintiffs’ lead counsel, Patrick Carreon, argued that all classes of Casual longshoremen were denied compensation for their post-dispatch travel time from their respective dispatch halls to the docks.  It was his position that this time encompassed hours worked while under the control of the employer and that Defendants’ denial of compensation was in violation of Cal. Labor Code §§ 510, 1194, I.W.C. Wage Orders 4-2001, 9-2001 and Cal. Business & Professions Code § 17200.  Additionally, he argued that the Long Beach/Los Angeles class of Casual longshoremen were subject to illegal payroll deductions by Defendants at a rate of 2% per paycheck to pay for the operation of the “Casual Dispatch Hall” in violation of Cal. Labor Code §§ 221-223, 2802 and 2804.  Finally, he argued that Defendants had an illegal policy of “slashing” time from the payroll of Long Beach/Los Angeles Casual longshoremen in primarily 15 and 30-minute increments in violation of California law.  Defendants denied all allegations.  They took the position that time spent by Casual longshoremen traveling from the Dispatch Hall to the docks and ultimately to that day’s foreman, constituted an “ordinary commute” pursuant to California case law and was therefore noncompensable.  Defendants further allege that a 2% deduction from the paychecks of the Long Beach/Los Angeles Casual longshoremen was allowable and an exception to state wrongful deduction statutes because they constituted “Union dues.”  Finally, Defendants asserted that any “slashing” of time from the payroll of Long Beach/Los Angeles Casual longshoremen was the result of late-arriving labor and thus allowable under California law.  

 

The parties conducted extensive discovery both with regard to issues of liability and damages.  The uniqueness and complexity of the issues of this case cannot be overstated.  This action constituted a “case of first impression” for all three of the main issues, not only for the purposes of liability and damages, but also for class certification.

 

In June of 2005, after two years of extensive discovery and litigation, the parties were at a stalemate, entrenched in their respective positions.  Plaintiffs and Defendants agreed to enlist the nationally renowned mediator, the Honorable Lawrence Irving (Ret.) in an attempt to resolve this difficult case.  Class Counsel Patrick Carreon, together with the Class Representatives Mark Wisniewski, Michael D. Olvera and Michael Plante attended the first mediation session in July of 2005 at Judge Irving’s offices in San Diego.  Attending on behalf of Defendants were defense counsel, Clifford Sethness from Morgan, Lewis & Bockius and top management representatives from PMA and the Member Companies.  In preparation for this mediation, Plaintiffs and Defendants submitted extensive briefing and exhibits as to liability and damages on all three issues as well as on the issue of class certification.  Despite the efforts of the parties and the mediator, the case did not settle.  

 

It was clear to the parties that the travel time issue (i.e., travel from the Dispatch Center to the docks and then from the docks to that day’s foreman), potentially encompassed the largest damage issue in the case.  Judge Irving suggested that if the parties were willing to brief that issue alone, he would offer an advisory opinion on liability.  The parties agreed.  Extensive briefing was submitted by the parties on both state and federal law in late September and early October 2005.  In late October, Judge Irving offered an oral advisory opinion which was critical to Plaintiffs’ ability to resolve the case.  In early November, the parties’ respective positions were briefed for the purpose of a second mediation session.  Class Counsel and Class Representatives for Plaintiffs and Defense Counsel and corporate executives appeared for a second mediation session in Judge Irving’s San Diego offices.  Once again, the efforts of the parties and the mediator could not bridge the significant gap between the liability and damage positions taken by Plaintiffs and Defendants.  

 

Additional discovery was scheduled as to the liability, damage and class certification issues regarding Plaintiffs’ claims.  After a portion of this discovery was completed, defense counsel suggested that an additional mediation session would be constructive.  Mediation was once again set in San Diego with Judge Irving in January of 2006.  Damage issues were briefed extensively and submitted to Judge Irving.  Once again, despite the efforts of the parties and Judge Irving, little progress was made toward Settlement.  At the end of this mediation session, Judge Irving suggested that the parties conduct additional discovery and investigation.  He then suggested that the parties update their respective positions by again briefing the three issues as to liability, class certification and damages and after his analysis, he would offer a Mediator’s Proposal.  Judge Irving made it clear that this would encompass his last effort to facilitate a resolution of this matter short of trial.  Defendants submitted a brief and Plaintiffs responded.  Defendants submitted a reply and Plaintiffs were allowed a sur-reply.  Each brief contained in-depth analysis of pertinent and analogous California State and federal cases, statutory construction of California federal law, as well as an analysis of numerous analogous sister state laws and statutes.  

 

It was the belief of Plaintiffs’ counsel that despite the efforts of Judge Irving this matter would not resolve.  Therefore, in March of 2006, Plaintiffs researched, drafted and filed a Motion for Summary Adjudication of Issues including declarations and exhibits that totaled approximately 730 pages.  This matter was set far enough in
time after the scheduled mediator’s proposal that Defendants would have an opportunity to provide opposition should the case fail to resolve.

Ultimately, at the end of the briefing schedule, and with the assistance of Judge Irving’s proposal, a settlement figure of $12, 946,413.00 was reached.  Plaintiffs’ counsel urges all longshoremen to claim their money.  Although rumors have been spread to the contrary, this was not a case against the union.  In fact the union has always supported the casuals’ case.  It should also be noted that part of the court order specifically bars PMA or any PMA Member Company from retaliating against longshoremen exercising their right to submit a claim in this case.

Contact information:
Patrick Carreon
Phone: 949-474-3004
E-mail: carreon@mocalaw.com

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