Kerr's Catering Service v. Department of Industrial Relations

Defendants appeal from a summary judgment in favor of plaintiff Kerr Catering Service holding a certain order of defendant Industrial Welfare Commission unconstitutional and void.

Plaintiff is in the industrial catering business. It maintains a fleet of trucks which are sent out on regular routes to various business and industrial establishments. Each truck is driven by a woman employee who also sells sandwiches, coffee and other food items which are carried on the truck. Plaintiff’s employees are organized into a union and pursuant to a collective bargaining agreement, they receive a wage which equals or exceeds the minimum specified in the applicable order of the Industrial Welfare Commission. After completing a probationary period of three months, the driver-salesgirls receive a 15 per cent commission on all sales in excess of $475 a week.

This percentage commission, payable monthly, is subject to reduction in the amount of any “cash shortage” attributable to the salesgirl during the month. The shortages are computed in the following manner: The driver-salesgirl is required to inventory the goods on her truck prior to going out each day, receives a small amount of cash to…

I concur in the judgment and, in general, in much of the opinion authored by Mr. Justice White. As a *331 precaution, however, against the drawing of unwarranted inferences from the opinion I state more fully my reasons for concurrence.

The subject order of the Industrial Welfare Commission prohibits wage deductions for cash shortage “unless it can be shown that the shortage ... is caused by a dishonest or wilful act, or by the culpable negligence of the employee. ’ ’ It prohibits, in other words, deductions for shortages either (1) caused by negligence of the employe other than “culpable negligence” (whatever that may mean), or (2) occurring without any negligence whatever on the part of the employe.

On the record before us it is unnecessary to explore the meaning in this context of the criminal law term “culpable negligence” (see, e.g., Pen. Code, §26 (subd. Six) ; People v. Sidwell (1915) 29 Cal.App. 12, 18-19 [ 154 P. 290 ]), or to consider whether the commission has statutory authority to prohibit deductions caused by negligence of the employe other than “culpable negligence.” After three da;^ of hearings on plaintiff-employer’s appeal from the initial determination of…