Hunt v. Golden Sate Boring & Pipe Jacking CA4/2

• Court: California Court of Appeal
• Decided: September 14, 2022
• Docket: E076407
• Status: Unpublished

Opinion

Filed 9/14/22 Hunt v. Golden Sate Boring & Pipe Jacking CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

BILLY HUNT, JR., et al.,

Plaintiffs and Respondents, E076407

v. (Super.Ct.No. CIVDS1930939)

GOLDEN STATE BORING & PIPE OPINION JACKING, INC.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.

Affirmed.

Atkinson, Andelson, Loya, Ruud & Romo, Scott K. Dauscher, Jon M. Setoguchi

and David Kang for Defendant and Appellant.

James Hawkins, APLC, James R. Hawkins, Samantha A. Smith and Lance E.

Dacre for Plaintiffs and Respondents.

1 Plaintiffs Billy Hunt, Jr., and Thomas Ray, individually and on behalf of a putative

class, sued their former employer, defendant and appellant Golden State Boring & Pipe

Jacking, Inc. (GSB), for violations of various provisions of California’s wage and hour

laws. GSB moved to compel arbitration pursuant to the collective bargaining agreements

(CBA) between it and the labor unions representing plaintiffs. The superior court granted

the motion as to Ray but denied it as to Hunt on the ground the arbitration provisions in

his CBAs were not “‘explicit, clear and unmistakable.’” We affirm.

I. PROCEDURAL BACKGROUND AND FACTS

Plaintiffs were union employees of GSB. Hunt’s employment from January 1997

to August 2019 was subject to two different CBAs: Hunt’s 2013 CBA (Ex. A) and

Hunt’s 2016 CBA (Ex. B). Ray’s employment from October 2006 to August 2019 was

subject to two different CBAs: Ray’s 2015 CBA (Ex. C) and Ray’s 2018 CBA (Ex. D).

On October 11, 2019, plaintiffs initiated this action seeking to represent a class

comprising current and former nonexempt employees of GSB. By way of their second

amended complaint, they assert six claims against GSB: (1) failure to pay overtime

wages, (2) improper deductions from earned wages, (3) failure to provide accurate

itemized wage statements, (4) failure to pay all wages within the required time and upon

separation of employment, (5) violation of Business and Professions Code section 17200

et. seq., and (6) civil penalties under the Labor Code Private Attorneys General Act of

2004 (Lab. Code, § 2698 et seq.; PAGA).

2 On March 13, 2020, GSB moved to compel arbitration of plaintiffs’ individual

claims on the ground their grievances are covered by the arbitration provisions in their

CBAs. GSB also sought to dismiss the class action claim on the ground the arbitration

provisions in their CBAs do not permit collective actions.1 The initial hearing on the

motion was continued to allow supplemental briefing on, inter alia, whether the arbitration

provisions in the CBAs “‘clearly and unmistakably’” waive plaintiffs’ right to bring these

claims in a judicial forum.

GSB relied on section L, of article XVI, entitled, “Working Rules,” in Hunt’s 2013

CBA: “Sanitation, Safety and Rest Periods: [¶] 1. All approved Safety Orders of the

California Division of Industrial Safety shall be observed by the Contractor and the

employees: [¶] (a) The parties to this agreement recognize Industrial Wage Order 16-

2001 covering, ‘On Site Construction, Mining, Drilling, and Logging Industries.’ Any

dispute or grievance arising from the Wage Order shall be processed under and in

accordance with Article V, Procedure for Settlement of Grievances and Disputes of this

agreement.”

The italicized language in article XVI, section L, subparagraph 1(a), is a verbatim

wording of the waiver found to be sufficient to compel arbitration of claims arising under

Industrial Welfare Commission wage order No. 16-2001 (wage order 16). (Cortez v. Doty

Bros. Equipment Co. (2017) 15 Cal.App.5th 1, 7, 12 (Cortez).) However, the provision in

1 The motion also sought to dismiss the PAGA claim since plaintiffs’ employment is governed by qualifying CBAs (Lab. Code, § 2699.6); however, the parties agreed to defer this issue to a later time.

3 Hunt’s 2013 CBA is found only under article XVI, section L, entitled, “Sanitation, Safety

and Rest Periods.” The provision references article V, which establishes a “Labor-

Management Adjustment Board . . . for the express purpose of interpreting and enforcing

all the terms and provisions contained [in the CBA],” to resolve disputes between the

union and the employer. Article V, entitled, “Procedure for Settlement of Grievances and

Disputes,” in relevant part, provides: “A. There is hereby established a Labor-

Management Adjustment Board consisting of the individuals who actually negotiated this

Agreement. The establishment of this Board and the purposes of its existence is for the

express purpose of interpreting and enforcing all the terms and provisions contained

herein. No dispute, complaint or grievance shall be recognized unless called to the

attention of the individual Contractor and the Union within thirty (30) days after the

alleged violation occurred. [¶] . . . [¶] 2. In the event the Labor-Management Adjustment

Board does not reach a decision for reasons of its own, any dispute or grievance may be

referred to arbitration by either or both parties, and the cost of arbitration will be borne

totally by the losing party. The appealing party shall notify the other party of their intent

to arbitrate within fifteen (15) working days. [¶] . . . [¶] D. The Arbitrator shall have no

authority to make recommendations or decisions which would add to, alter, vary or

modify any of the terms or provisions of this Agreement. All decisions of the Arbitrator

shall be based on the language of this Agreement and the intent of the Negotiating

Committee. . . .” (Italics added.)

4 Hunt’s 2016 CBA expands the arbitration provision in article XVI, section L,

subparagraph 1(a), by adding the following (as relevant): “It is the intent of the parties

that this grievance procedure provide a mechanism for resolving the individual claims

covered herein which balances expedited and complete relief to employees for violations

with avoidance of unnecessary costs and disproportionate remedies associated with class

and representative actions. [¶] Any dispute, complaint or grievance alleging a violation

of the Master Labor Agreement shall be processed through the Procedure for Settlement

of Grievance and Disputes in Article V, and the Union shall retain sole and exclusive

ability to bring such a grievance to arbitration pursuant to such Article. In addition, any

dispute, complaint or grievance concerning a violation of, or arising under, Industrial

Welfare Commission Wage Order 16 (‘Wage Order 16’) which is subject to the

Procedure for Settlement of Grievance and Disputes in Article V by operation of Wage

Order 16 and exemptions contained therein for employees covered by collective

bargaining agreements shall remain subject only to Article V and not this Article XVI,

Section L. Disputes, complaints or grievances within the scope of this paragraph shall be

referred to as ‘Contractual Disputes.’ [¶] In addition to Contractual Disputes that may

be brought by the Union as described above, all employee disputes concerning violations

of, or arising under Wage Order 16 (except as noted in the immediately preceding

paragraph), the California Labor Code Sections identified in California Labor Code

Section 2699.5 as amended, the California Private Attorneys General Act (Labor Code

Section 2698, et. seq.), and federal, state and local law concerning wage-hour

requirements, wage payment and meal or rest periods, including claims arising under the

5 Fair Labor Standards Act (hereinafter ‘Statutory Dispute’ or ‘Statutory Disputes’) shall

be subject to and must be processed by the employee pursuant to the procedures set forth

in this Article XVI, Section L as the sole and exclusive remedy. To ensure disputes are

subject to this grievance procedure in accordance with the intended scope of coverage set

forth herein, Statutory Disputes also include any contract, tort or common law claim

concerning the matters addressed in the foregoing laws (other than a claim of violation

of the Master Labor Agreement which are deemed Contractual Disputes). This

Article XVI, Section L shall not apply to claims before the National Labor Relations

Board, the Employee Equal Opportunity Commission, the Department of Fair

Employment and Housing, and the California Division of Workers’ Compensation.

[¶] . . . [¶] If the individual employee dispute is a Statutory Dispute subject to this

Article XVI, Section L, the grievance shall not be heard by the Labor-Management

Adjustment Board, but shall proceed directly to an independent Arbitrator. . . .” (Italics

added.)

In both of Hunt’s CBAs, the remaining subparagraphs of article XVI, section L,

address various sanitation and safety issues, including safety gear (subparagraph 2), safety

measures and practices (subparagraph 3), providing heaters when the outside temperature

is below 40 degrees Fahrenheit (subparagraph 4), air-conditioned cabs (subparagraph 5),

and drinking water (subparagraph 6). Section L also addresses rest period guidelines

(subparagraphs 7 & 8) and reinstatement of an employee who was unjustifiably disciplined

(subparagraph 9). Neither of Hunt’s CBAs has a table of contents or appendix.

6 In contrast, Ray’s CBAs contain a table of contents setting forth the various

sections, and appendix C entitled, “Grievance of Disputes.” Within appendix C are two

subsections: “A. Arbitration of Employment Related Claims,” and “B. Procedure for

Arbitration of Disputes.” Similar to Hunt’s CBAs, Ray’s CBAs contain an arbitration

provision embedded in article XVI, entitled, “Holidays, Payment of Wages, Meal

Periods, Rest Periods (Breaks), & Heat Illness Preventative Recovery Period.” That

provision provides: “D. Breaks (Rest Periods) [¶] The parties to this Agreement

recognize Industrial Wage Order 16 covering, ‘On Site Construction, Mining, Drilling,

and Logging Industries.’ Any dispute or grievance arising from the Wage Order shall be

processed under and in accordance with Article VI, Procedures for Settlement of

Grievances and Disputes of this Agreement. The grievance process of Article VI shall be

the exclusive method for resolving all alleged violations on this Wage Order and the time

limitations of Article VI shall apply. [¶] Wherever the Wage Order refers to collective

bargaining agreements, this Master Labor Agreement shall be deemed to satisfy all of the

requirements for treatment as a qualified collective bargaining agreement.” (Italics

Although placed under the section dealing with breaks/rest periods, there is no

reference to breaks/rest periods. The remaining sections of article XVI address holidays

(§ A), payment of wages (§ B), a meal period (§ C), and a heat illness preventative

recovery period (§ E). However, the final section, (§ F), is untitled and contains language

not found in either of Hunt’s CBAs. It provides: “F. All disputes concerning the

payment of wages, meals, rest periods (breaks) and/or heart illness preventative recovery

7 periods are subject to the Procedure for Settlement of Grievance and Disputes in Article

VI and as outlined in Appendix C of the Agreement. Decisions resolving disputes arising

out of the Procedure for Settlement of Grievance and Disputes shall be final and binding

upon both parties.” (Italics added.)

On November 13, 2020, the superior court granted GSB’s motion as to Ray (only

as to his individual claims), but denied it as to Hunt on the grounds the arbitration

provisions in his CBAs were not “‘explicit, clear, and unmistakable.’” Acknowledging

that the language in article XVI, section L, subparagraph 1(a), is a verbatim wording of

the waiver found to be explicit, clear, and unmistakable in Cortez, the court distinguished

the case based on the waiver’s placement under article XVI, section L, entitled,

“Sanitation, Safety and Rest Periods.” According to the court, Hunt was not suing for

“rest period violations or for any cause of action related to sanitation or safety.” Also, the

court observed that the limitation in article V “undermines any interpretation that claims

under Wage Order 16 and the Labor Code (as opposed to claims under the CBA) can be

addressed under the procedures set forth in Article V [it found that r]ead in totality, a

more reasonable interpretation of Article V is that it addresses disputes brought by the

union.”

GSB appeals.

8 II. DISCUSSION

GSB contends the superior court erred in denying the motion to compel arbitration

as to Hunt’s claims because it incorrectly applied the case law defining an “‘explicit,

clear, and unmistakable’” waiver of a judicial forum in an arbitration agreement and

wrongly considered the headings in Hunt’s CBAs to be dispositive. We find no error.

A. Standard of review.

“A petition to compel arbitration should be granted if the court determines that an

agreement to arbitrate the controversy exists. [Citation.] Fundamental to this inquiry is

whether the parties have agreed to arbitrate their dispute. [Citations.] [¶] . . . [¶] We

apply de novo review to the trial court’s interpretation of an arbitration agreement that

does not involve conflicting extrinsic evidence.” (Cortez, supra, 15 Cal.App.5th at p. 12.)

B. Analysis.

“A union representative may agree on an employee’s behalf as part of the

collective bargaining process to require the employee to arbitrate controversies relating to

an interpretation or enforcement of a CBA. [Citations.] In fact, when a CBA includes an

arbitration provision, contractual matters under a CBA are presumed arbitrable; that is,

arbitration must be granted as long as the CBA is reasonably susceptible to an

interpretation in favor of arbitration.” (Cortez, supra, 15 Cal.App.5th at pp. 11-12, italics

added.) “However, the presumption of arbitration in a CBA does not apply to statutory

violations.” (Id. at p. 12, italics added.) Rather, “a CBA may require arbitration of a

statutory claim if, in a waiver that is ‘explicitly stated,’ it is ‘clear and unmistakable’ that

the parties intended to waive a judicial forum for statutory claims.” (Vasserman v. Henry

9 Mayo Newhall Memorial Hospital (2017) 8 Cal.App.5th 236, 245,2 italics added; see

Wright v. Universal Maritime Service Corp. et al. (1998) 525 U.S. 70, 80; Vasquez v.

Superior Court (2000) 80 Cal.App.4th 430, 434 (Vasquez).) Thus, unless there is

“‘“clear and unmistakable evidence”’” the parties to a CBA have agreed to arbitrate, the

court must not assume such agreement. (Wilson-Davis v. SSP America, Inc. (2021)

62 Cal.App.5th 1080, 1088-1090 (Wilson-Davis).)

Applying the above case law, the superior court considered “whether [the]

arbitration provisions in the four CBAs are ‘explicit, clear, and unmistakable.’” It rejected

GSB’s argument that since the CBAs used “verbatim wording of the waiver at issue in

Cortez,”3 Hunt’s claims are subject to arbitration. Regarding Hunt’s 2013 CBA, the court

explained that the arbitration provision was placed under article XVI, section L, entitled,

“Sanitation, Safety, and Rest Periods”; however, Hunt was not suing for rest period

2 Although Vasserman v. Henry Mayo Newhall Memorial Hospital, supra, 8 Cal.App.5th 236 acknowledged case law that holds unions may not waive an individual’s statutory rights to a judicial forum, the Court of Appeal chose not to decide this issue; instead, it analyzed the facts of the case under the “clear-and-unmistakable standard.” (Vasserman, at p. 245.)

3 Cortez did not find all plaintiff’s claims to be covered by the terms of the arbitration provision in the CBA. (Cortez, supra, 15 Cal.App.5th at p. 15.) Rather, it concluded that only the claims arising under Wage Order 16—“claims under the Labor Code for overtime, meal and rest breaks and violation of record-keeping provisions”— were covered. (Ibid.) Regarding Cortez’s causes of action for timely payments upon separation of employment and his unfair competition claim based on that statutory violation, the Court of Appeal held that the CBA did not compel arbitration of these claims because they did not “fall within the wage order.” (Ibid.) Thus, under Cortez, the trial court properly denied arbitration of Hunt’s claims for failure to pay all wages within the required time and upon separation of employment, and violation of Business and Professions Code section 17200 et. seq.

10 violations or for any cause of action related to sanitation or safety. Moreover, the court

found that article XVI’s mandate that any disputes or grievances arising from Wage Order

16 be processed under article V was undone by article V, section D, which divests the

arbitrator of any authority to “add to, alter, vary or modify any of the terms or provisions

of this Agreement. All Decisions shall be based on the language of this Agreement and

the intent of the Negotiating Committee.” According to the court, “[t]his limitation

undermines any interpretation that claims under Wage Order 16 and the Labor Code (as

opposed to claims under the CBA) can be addressed under the procedures set forth in

Article V. . . . Read in totality, a more reasonable interpretation of Article V is that it

addresses disputes brought by the union.”

We agree. The reference to article V does not clarify the issue regarding

arbitration because article V establishes a “Labor-Management Adjustment Board” (the

board) to interpret and enforce the provisions in the Hunt’s 2013 CBA and provides that

any “dispute or grievance” arising therefrom “may be referred to arbitration.” (Italics

added.) By its language, article V, section A, addresses disputes or grievances between

GSB and the union representative on behalf of any employees which involve

interpretation or enforcement of the CBAs. Section B, subparagraphs 2 through 5,

prescribe the following steps: (1) a discussion between the union representative and the

authorized representative of GSB; (2) a meeting between the union representative, GSB,

and the labor relations representative of the employee’s association (Engineering

Contractors Association, Inc.); (3) referral of the dispute or grievance to the board for

consideration and decision; and (4) decision by the joint chairmen of the board or

11 arbitrator. Thus, while article V, section A, subparagraph 2, sets out an arbitration

procedure, it does not mandate arbitration: “In the event the Labor-Management

Adjustment Board does not reach a decision for reasons of its own, any dispute or

grievance may be referred to arbitration by either or both parties.” Moreover, it limits the

arbitrator’s power. (See art. V, § D.)

Turning to Hunt’s 2016 CBA, the superior court noted that it contained “important

additions, perhaps intended to cure the problems with the early CBA.” Specifically, the

following paragraph was added to article XVI, section L, subparagraph 1(a): “Any

dispute, complaint or grievance alleging a violation of the Master Labor Agreement shall

be processed through the Procedure for Settlement of Grievance and Disputes in Article

V, and the Union shall retain sole and exclusive ability to bring such a grievance to

arbitration pursuant to such Article. In addition, any dispute, complaint or grievance

concerning a violation of, or arising under, Industrial Welfare Commission Wage Order

16 (‘Wage Order 16’) which is subject to the Procedure for Settlement of Grievance and

Disputes in Article V by operation of Wage Order 16 and exemptions contained therein

for employees covered by collective bargaining agreements shall remain subject only to

Article V and not this Article XVI, Section L. Disputes, complaints or grievances within

the scope of this paragraph shall be referred to as ‘Contractual Disputes.’” (Italics

The court found that the first sentence in the above paragraph suggests that the

entire paragraph is directed only to disputes, complaints, or grievances “brought by the

union.” But, “if the second sentence is viewed in isolation, it might appear to be an

12 attempt to eliminate the problem in [Hunt’s 2013 CBA] that the arbitration provision

relates only to claims concerning ‘Sanitation, Safety, and Rest Periods.’” Nonetheless,

the superior court looked to the next paragraph in article XVI, section L, subparagraph

1(a), and found that it “dispel[ed] any such notion.” That paragraph provides: “In

addition to Contractual Disputes that may be brought by the Union as described above,

all employee disputes concerning violations of, or arising under Wage Order 16 (except

as noted in the immediately preceding paragraph), the California Labor Code Sections

identified in California Labor Code Section 2699.5 as amended, the California Private

Attorneys General Act (Labor Code Section 2698, et. seq.), and federal, state and local

law concerning wage-hour requirements, wage payment and meal or rest periods,

including claims arising under the Fair Labor Standards Act (hereinafter ‘Statutory

Dispute’ or ‘Statutory Disputes’) shall be subject to and must be processed by the

employee pursuant to the procedures set forth in this Article XVI, Section L as the sole

and exclusive remedy. . . .”

The court observed, “At first glance, this paragraph might appear to contradict the

immediately preceding paragraph: The first paragraph says that disputes concerning

violations of Wage Order 16 are subject only to Article V (and not Article XVI,

Section L), while the second paragraph says that employee disputes concerning violations

of Wage Order 16 (and other statutory disputes) must be processed by the employee

pursuant to the procedures set forth in Article XVI, Section L. The limitation in the

second paragraph to employee disputes resolves any conflict. The only reasonable

interpretation of these two provisions is that disputes brought by the union are to be

13 processed under Article V, while disputes brought by employees are to be processed under

Article XVI.” The Hunt 2016 CBA further adds that if the employee dispute is statutory it

shall proceed to an arbitrator, not the board. However, the court found that, even if the

additional language in Hunt’s 2016 CBA was intended to cure any deficiencies in Hunt’s

2013 CBA, by placing it under article XVI, section L, entitled, “Sanitation, Safety, and

Rest Periods,” the “implication is that arbitration is required for employee disputes

relating to those topics” only.

Again, we agree with the superior court. The additional language in Hunt’s 2016

CBA—which may be interpreted as requiring arbitration of employees’ statutory

claims—is hidden in the middle of the paragraph that begins by addressing disputes,

complaints, or grievances brought by the union, and remains under article XVI,

section L, concerning sanitation, safety, and rest periods. By burying the arbitration

provision within article XVI, section L, the implication is that arbitration is required for

those types of claims and not others such as the ones raised in this lawsuit.

Nonetheless, GSB contends that the “test is not whether the arbitration clause is

self-contained, clearly titled, or uses specific phrases; ‘[t]he test is whether a collective

bargaining agreement makes compliance with the statute a contractual commitment

subject to the arbitration clause.’” In support of this contention, GSB cites Vasquez,

supra, 80 Cal.App.4th at p. 434 and Wilson-Davis, supra, 62 Cal.App.5th at p. 1094.

However, these cases state that “‘“[b]road, general language is not sufficient to meet the

level of clarity required to effect a waiver in a [collective bargaining agreement]. In the

collective bargaining context, the parties ‘must be particularly clear’ about their intent to

14 arbitrate statutory . . . claims.” [Citation.] A waiver in a collective bargaining

agreement is sufficiently clear if it is found in an explicit arbitration clause. “Under this

approach, the [collective bargaining agreement] must contain a clear and unmistakable

provision under which the employees agree to submit to arbitration all [state and federal

statutory] causes of action arising out of their employment.”’” (Wilson-Davis, supra, 62

Cal.App.5th at p. 1094, quoting Vasquez, supra, 80 Cal.App.4th at pp. 435-436.) The

burial of the arbitration provision under article XVI, section L, entitled, “Sanitation,

Safety and Rest Periods,” in the middle of a paragraph that begins by addressing disputes,

complaints, or grievances brought by the union, does not “meet the level of clarity”

contemplated by the words, “‘explicit arbitration clause,’” used in Vasquez and Wilson-

Davis.

Alternatively, GSB argues that the language in Hunt’s 2016 CBA is sufficient to

satisfy the Vasquez court’s second method of establishing the requisite degree of clarity.

According to Vasquez, “[a] waiver in a collective bargaining agreement may also be

sufficiently clear if broad, nonspecific language in the arbitration clause is coupled with

‘an “explicit incorporation of statutory antidiscrimination requirements” elsewhere in the

contract.’” (Vasquez, supra, 80 Cal.App.4th at p. 435, italics added.) Assuming the

broad, nonspecific language in Hunt’s 2016 CBA is sufficient to support a valid

arbitration provision, its placement under article XVI, section L, concerning sanitation,

safety, and rest periods, implies an intent to limit arbitration to those types of claims and

not others such as the ones raised in this lawsuit.

15 Contrary to GSB’s assertion, the labeling and placement of an arbitration

provision is relevant and important when assessing whether the language in a CBA

clearly states the parties’ intent to arbitrate statutory claims. After examining Hunt’s

2013 CBA and Hunt’s 2016 CBA, we conclude that neither clearly and unmistakably

mandates arbitration of his claims.

III. DISPOSITION

The order denying the motion to compel arbitration is affirmed. Respondent is

awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

CODRINGTON J.

RAPHAEL J.