Sanchez v. Shimmick Construction Co. CA2/2

Filed 2/9/22 Sanchez v. Shimmick Construction Co. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
WILLIAM SANCHEZ, B311536
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV04676)
v.
SHIMMICK CONSTRUCTION
COMPANY, INC./FCC
CONSTRUCCION S.A./IMPREGLIO
S.P.A.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County. Kenneth R. Freeman, Judge. Affirmed.
Alexander Morrison + Fehr, Tracy L. Fehr; The Nourmand
Law Firm, Michael Nourmand and James A. De Sario for
Plaintiff and Appellant.
Jackson Lewis, Leonora M. Schloss, Scott P. Jang, Dylan B.
Carp and Rassa L. Ahmadi for Defendant and Respondent.
______________________________
Plaintiff and appellant William Sanchez (Sanchez) brought
a wage and hour type case against defendant and respondent
Shimmick Construction Company, Inc./FCC Construccion
S.A./Impreglio S.P.A.1 The trial court granted defendant’s motion
to compel arbitration of all five of Sanchez’s claims pursuant to
the terms of a collective bargaining agreement. Sanchez appeals,
claiming only that his third cause of action for failure to pay
wages upon termination in violation of Labor Code sections 201,
202, and 203,2 and his fifth cause of action for unfair competition
(Bus. & Prof. Code, § 17200) based thereon are not arbitrable.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Parties
Defendant is an employer-contractor on the Gerald
Desmond Bridge Replacement Project in Long Beach, California
(the project). Sanchez is a former nonexempt employee of
defendant, with the job description of “pile driver/carpenter.”
During his employment, Sanchez was a member of the United
Brotherhood of Carpenters Local Number 2375, also known as
the piledrivers union.
The Collective Bargaining Agreements
Two collective bargaining agreements are relevant to the
issues raised in this appeal. First, defendant and the piledrivers
1
The complaint also named Shimmick Construction
Company, Inc., as a defendant. Sanchez later dismissed that
entity, and it is not a party to this appeal.
2
All further statutory references are to the Labor Code
unless otherwise indicated.
2
union were parties to the project labor agreement. The project
labor agreement sets the minimum terms of employment for
workers performing construction craftwork at the project,
including terms regarding wages, benefit rates, and grievance
procedures. It specifically provides that contractor employers
“recognize the Unions as the sole and exclusive collective
bargaining representative for all employees engaged in Project
Work.”
The project labor agreement further provides that other
local collective bargaining agreements of the signatory unions
were incorporated by reference into the project labor agreement
and apply to all work covered by the project labor agreement.
Where a subject is covered by a provision in a local collective
bargaining agreement and not the project labor agreement, the
terms of the local agreement prevail.
The second agreement, the carpenters master labor
agreement (the CMLA), was negotiated by Southwest Regional
Council of Carpenters on behalf of the members of the local
affiliated unions, including the piledrivers union. All contractors
working on the project who employed covered union member
carpenters, like defendant here, are bound by the terms of the
CMLA. The CMLA sets uniform rates of pay, hours of
employment, working conditions, and grievance procedures for
members of the piledrivers union.
The CMLA’s Arbitration Provision
The CMLA requires arbitration on an individual basis
under Appendix M, titled “Grievances of Disputes.” It explains
that “federal law and policy favors the use and finality of
arbitration procedures established through collective bargaining
agreements to resolve[] all nature of disputes affecting the
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employee-employer relationship.” It continues: “The Parties to
this Agreement recognize that arbitration pursuant to the
grievance procedure affords numerous benefits including
expedited resolution of disputes; reduced cost and expense as
compared to litigation; potentially greater monetary relief to
individual employees; benefit of the arbitrator’s knowledge and
expertise with the bargaining parties, the employment
relationships governed by the collective bargaining agreement,
and the practices of the construction industry; less restrictive
rules of evidence; and less formal procedures.”
To carry out these purposes, the CMLA mandates: “[A]ll
employee disputes concerning violations of, or arising under
Wage Order 16 (except as noted in the immediately preceding
paragraph), the California Labor Code Section[s] 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 Appendix M 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 [CMLA] which are deemed
Contractual Disputes). This Appendix shall not apply to claims
before the National Labor Relations Board, the Employee Equal
Opportunity Commission, the Department of Fair Employment
4
and Housing, and the California Division of Workers’
Compensation.”
The balance of Appendix M sets forth the procedure for
handling statutory disputes, including binding arbitration on an
individual basis.
Sanchez’s Complaint
On February 13, 2019, Sanchez filed a complaint on behalf
of himself and all others similarly situated against defendant,
alleging five causes of action: (1) failure to pay overtime wages,
in violation of sections 510, 1194, and 1199; (2) failure to pay
minimum wages, in violation of sections 1194, 1194.2, and 1197;
(3) failure to pay all wages upon termination, in violation of
sections 201, 202, and 203; (4) failure to provide accurate wage
statements, in violation of section 226; and (5) unfair competition,
in violation of Business and Professions Code section 17200.
While the complaint made class allegations, it did not make
Private Attorneys General Act (PAGA) allegations.
Defendant’s Motion to Compel Arbitration
On October 9, 2020, defendant moved to compel binding
individual arbitration of all of Sanchez’s causes of action.
Defendant argued that Sanchez’s employment was covered by
two collective bargaining agreements (the project labor
agreement and the CMLA) that required him to submit “any and
all claims to binding individual arbitration.”
Sanchez’s Opposition
Sanchez filed an opposition, limiting his claim to the third
cause of action (failure to pay wages upon termination) and that
portion of the fifth cause of action (unfair competition) based
thereon. He asserted that these two causes of action were not
covered by the arbitration provision in the CMLA because the
5
CMLA did not explicitly, clearly, and unmistakably require him
to arbitrate these causes of action.
Trial Court Order
After entertaining oral argument, the trial court granted
defendant’s motion, compelling arbitration of all causes of action.
In so ruling, the trial court reasoned that the CMLA explicitly,
clearly, and unmistakably required Sanchez to arbitrate all of his
causes of action. After all, the CMLA specifically requires
Sanchez to arbitrate all disputes identified in section 2699.5,3
which in turn identifies sections 201, 202, and 203, the statutory
provisions governing the third cause of action. The trial court
also noted that the CMLA requires Sanchez to arbitrate all
disputes concerning violations of “‘federal, state and local law
concerning wage-hour requirements, wage payment and meal or
rest periods,’” as well as “‘any contract, tort or common law claim
concerning the matters addressed in the foregoing laws.’”
Appeal
Sanchez’s timely appeal ensued.
DISCUSSION
I. Standard of review and relevant law
“A petition to compel arbitration should be granted if the
court determines that an agreement to arbitrate the controversy
exists.” (Cortez v. Doty Bros. Equipment Co. (2017) 15
3
Section 2699.5 lists numerous statutes to which section
2699.3, which sets forth the requirements for commencement of
civil actions under section 2699, applies. As is relevant to this
issues in this appeal, section 2699.5 provides: “The provisions of
subdivision (a) of Section 2699.3 apply to any alleged violation of
the following provisions: . . . Sections . . . 201, . . . 202, 203.”
6
Cal.App.5th 1, 11 (Cortez).) “Fundamental to this inquiry is
whether the parties have agreed to arbitrate their dispute.”
(Ibid.) “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 [collective bargaining agreement].” (Ibid.)
Specifically, “a union representative in negotiating a [collective
bargaining agreement] in good faith may waive the employee’s
right to pursue in a judicial forum an action for a statutorily
protected right,” as “the decision to fashion a [collective
bargaining agreement] to require arbitration of statutory claims
is ‘no different from the many other decisions made by parties in
designing grievance machinery.’” (Id. at p. 12.) “[T]he United
States Supreme Court has made clear that waiver of the right to
prosecute a statutory violation in a judicial forum is only effective
if it is explicit, ‘“clear and unmistakable.’”” (Ibid.; see also 14
Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, 251 (14 Penn Plaza)
[a collective bargaining agreement that explicitly, clearly, and
unmistakably required union members to arbitrate claims arising
under the Age Discrimination and Employment Act was
enforceable], id at pp. 254, 256–257; Vasquez v. Superior Court
(2000) 80 Cal.App.4th 430, 434 [a requirement to arbitrate
statutory claims must be particularly clear].)
We apply “de novo review to the trial court’s interpretation
of an arbitration agreement that does not involve conflicting
evidence.” (Cortez, supra, 15 Cal.App.5th at p. 12.)
II. Analysis
Applying these legal principles, we conclude that the trial
court properly granted defendant’s motion to compel arbitration
of the third and fifth causes of action. The CMLA explicitly,
7
clearly, and unmistakably requires Sanchez to arbitrate all of his
causes of action. Regarding the third cause of action (failure to
pay wages upon termination), the CMLA specifically requires
Sanchez to arbitrate that claim by referencing section 2699.5,
which in turn identifies sections 201, 202, and 203, the applicable
statutes. Regarding the derivative fifth cause of action (unfair
competition), it too is subject to arbitration because it depends
upon the alleged violation of sections 201 through 203. (See, e.g.,
Cortez, supra, 15 Cal.App.5th at p. 15.)
Cortez is instructive. In that case, the Court of Appeal held
that a collective bargaining agreement required arbitration of the
plaintiff’s causes of action for violating sections 204, 226, 226.7,
510, 512, 1174, 1174.5, 1194, and 1198, simply by citing Wage
Order 16, even though the wage order itself did not identify any
specific Labor Code section. (Cortez, supra, 15 Cal.App.5th at
p. 14 [an “agreement to arbitrate claims ‘arising under’ Wage
Order 16 is clear and unmistakable. Although the Labor Code is
not specifically mentioned, we cannot disregard the reality that
an employee may enforce the protections of the wage order in
court only by bringing a claim under the Labor Code”].) Rather,
it was enough that the wage order identified the substantive
rights protected by the Labor Code sections at issue. (Ibid.)
Here, the CMLA specifically cites section 2699.5, which
identifies the precise statutes under which Sanchez is suing.
Applying the principles set forth in Cortez, that is enough.4
4
As Sanchez points out, Cortez held that the plaintiff’s cause
of action for failure to pay wages in a timely manner following
termination in that case was not subject to arbitration because it
did “not arise under Wage Order 16, which makes no mention of
payment upon the employee’s separation from employment, much
8
In addition, Sanchez’s claims are subject to arbitration as
statutory disputes under the terms of the CMLA. As set forth
above, the CMLA defines statutory disputes as disputes
concerning violations of, or arising under, “federal, state and local
law concerning wage-hour requirements, wage payment and meal
or rest periods.” Where a collective bargaining agreement
explicitly requires arbitration of statutory claims, it may identify
the covered claims by description rather than by rote
enumeration. (See, e.g., Darrington v. Milton Hershey Sch. (3d
Cir. 2020) 958 F.3d 188, 190–191, 195–196 [the arbitration
provision’s reference to any dispute alleging discrimination under
federal or state law clearly and unmistakably includes the
plaintiffs’ claims under Title VII and the Pennsylvania Human
Relations Act]; Aleman v. Chugach Support Servs., Inc. (4th Cir.
2007) 485 F.3d 206, 209–210, 216–217 [collective bargaining
agreement required arbitration of all claims of discrimination
under Title VII and all other federal, state, and local
antidiscrimination laws covered the plaintiffs’ claims under 42
U.S.C. § 1981 and Maryland law]; Thompson v. Air Transp. Int’l
L.L.C. (8th Cir. 2011) 664 F.3d 723, 726.) Sanchez directs us to
no legal authority to support his claim that the CMLA is not clear
because it does not specifically cite Labor Code and/or that the
reference to section 2699.5 is insufficient.
Sanchez’s argument notwithstanding, the CMLA is not
confusing. First, the fact that the agreement uses the singular
less statutory penalties for failure to do so.” (Cortez, supra, 15
Cal.App.5th at p. 15.) Here, unlike Cortez, the CMLA specifically
references section 2699.5, which in turn references sections 201
through 203. Thus, Cortez does not compel reversal.
9
“Section” as opposed to the likely intended plural “Sections” does
not render the CMLA confusing. And, other than labeling the
CMLA confusing, Sanchez offers no supporting explanation as to
why. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th
836, 852.) Second, the fact that the arbitration provision
references two PAGA statutes does not render the CMLA
confusing; Sanchez does not allege a PAGA claim in this lawsuit.
Finally, even though the CMLA refers to section 2699 “as
amended,” there is no indication in the statute’s legislation that
the inclusion of sections 201 through 203 ever changed.
Sanchez’s speculation as to how section 2699.5 “will continue to
evolve” or how it will affect “an employee attempting to assess his
rights in late 2022” is insufficient to demonstrate that the
agreement is too confusing to be enforceable. (See, e.g., Covina
Residents for Responsible Development v. City of Covina (2018) 21
Cal.App.5th 712, 729 [speculation does not constitute substantial
evidence].)
Urging us to reverse, Sanchez argues that the trial court
erroneously held that he “waive[d] the waiting time penalties or
unfair competition claims.” Not so. All the trial court held was
that he had to arbitrate these claims. It did not find waiver.
Bartlett v. All Am. Asphalt (C.D.Cal. Oct. 16, 2020) 2020
U.S. Dist. LEXIS 192277 (Bartlett), upon which Sanchez relies,
does not compel a different result. In Bartlett, the district court
considered removal jurisdiction; it did not consider arbitrability.
Admittedly, Bartlett made the following brief comment:
“‘“[W]hen a [collective bargaining agreement’s] grievance and
arbitration procedure does not directly reference the statutes at
issue, courts have concluded that the agreement does not contain
a clear and unmistakable waiver” of an employee’s right to a
10
judicial forum.’” (Id. at pp. *21–*22.) At best, that one sentence
is dicta given the context in which arose. Regardless, Bartlett
does not mention the United States Supreme Court’s decision in
14 Penn Plaza. And it predates Cortez, a California Court of
Appeal decision directly on point.
Choate v. Celite Corp. (2013) 215 Cal.App.4th 1460 (Choate)
also does not aid Sanchez for at least two reasons. First, it did
not concern a collective bargaining agreement’s requirement of
arbitration of individual statutory claims. Rather, the Choate
court considered whether an employee’s rights under section
227.3 [payment for vested vacation time on termination of
employment] had been waived in a collective bargaining
agreement. (Choate, supra, at p. 1465.) In finding that the
agreement did not waive the plaintiffs’ rights under section
227.3, the court held that a collective bargaining agreement
“abrogates an employee’s statutory right under section 227.3 to
immediate payment for vested vacation time only if the
agreement clearly and unmistakably waives that right.” (Choate,
at p. 1462.) Because arbitration cases are distinguishable (Ehret
v. WinCo Foods, LLC (2018) 26 Cal.App.5th 1, 7), so too is
Choate.
Second, as evidenced by the aforementioned language,
Choate reaffirms the principle that a waiver of rights in a
collective bargaining agreement must be clear and unmistakable.
As set forth above, the CMLA is. (See also Ehret v. WinCo Foods,
LLC, supra, 26 Cal.App.5th at p. 3 [because a collective
bargaining agreement’s waiver of an employee’s claim for
violating section 512, subd. (a) [meal periods], was clear and
unmistakable, the defendant was entitled to summary
judgment].)
11
Vasserman v. Henry Mayo Newhall Memorial Hospital
(2017) 8 Cal.App.5th 236 too is distinguishable. In that case, the
collective bargaining agreement only required arbitration of
claims arising under the collective bargaining agreement itself.
(Id. at p. 240.) In fact, the agreement in that case explicitly
limited the arbitrator’s jurisdiction to claims arising under the
collective bargaining agreement. (Ibid.) Because the plaintiff
sued the defendant for claims under the Labor Code, not for
violating the collective bargaining agreement, the appellate court
easily concluded that the collective bargaining agreement’s
arbitration provision did not apply. (Id. at pp. 246–250.)
As set forth above, that is not the case here; the CMLA
expressly provides for arbitration of statutory disputes, including
statutes specifically mentioned (like § 2966.5, which in turn
identifies §§ 202-204), and those described by subject matter.5
As defendant rightly points out, the arbitrability of causes
of action under PAGA has nothing to do with the question of
whether Sanchez must arbitrate his third and fifth causes of
action. Sanchez did not plead a cause of action under PAGA. For
that reason, any discussion of section 2699.6 is irrelevant.
Finally, Sanchez contends that pursuant to Livadas v.
Bradshaw (1994) 512 U.S. 107, 125 (Livadas), there is an
5
For the same reasons, Mendez v. Mid-Wilshire Health Care
Center (2013) 220 Cal.App.4th 534, 546, briefly mentioned in
Sanchez’s opening brief, is distinguishable. In that case, the
collective bargaining agreement simply said that employees must
arbitrate “grievances,” without defining that term. (Id. at p. 538.)
At the risk of sounding redundant, the arbitration provision here
explicitly mentions section 2699.5 as well as state law concerning
wage and hour requirements.
12
undefined “heightened standard” for requiring arbitration of
claims for violating sections 201 through 203. Livadas did not so
hold. In any event, subsequent United States Supreme Court
cases have expressly held that a collective bargaining agreement
may require arbitration so long as the agreement is explicit,
clear, and unmistakable. (See 14 Penn Plaza, supra, 556 U.S. at
pp. 257, 264 [noting that Livadas, which followed Alexander v.
Gardner-Denver Co. (1974) 415 U.S. 36, did not “control the
outcome where, as is the case here, the collective-bargaining
agreement’s arbitration provision expressly covers both statutory
and contractual . . . claims”].)
DISPOSITION
The order is affirmed. Defendant is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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