1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, J R ., et al., Plaintiffs and Resp ondents,

v. GOLDEN STATE BORING & PIPE JACKING, INC., Defendant and Appellant. E076407 (Super.Ct.No. CIVDS1930939)
OPINION

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.2

Plaintiffs Billy Hunt, Jr. , and Thomas Ray, in dividually and on behalf of a putative class, sued their former employer , d efendant 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 den ied 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 employee s of GSB. Hunt’s employment from January 1997 to August 2019 was subject to two different CBAs : Hunt ’s 2013 CBA ( E x. A) and
Hunt ’s 20 16 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 Co de Private Attorneys General Act of
2004 ( Lab. Code, § 2698 et seq. ; PAGA )

.3

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 , Dr illing , 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 ( w age o rder 16). ( Corte z v. Doty Bros. Equipment Co . (2017) 15 Cal.App.5th 1, 7, 12 ( Corte z )

. ) 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 ) ; h owever, the parties agreed to defer this issue to a later time.4

Hunt’s 2013 CBA is found only under a rticle XVI , s ection L , entitled , “ Sanitation, Safety and Rest Periods. ” The provision references a rticle V , which establ ishes 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 Settle ment 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 it s 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 thi rty (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 appeal ing 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.)5

Hunt’s 2016 CBA expands the arbitration provision in a rticle XVI, s ection 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 process ed through the Procedure for Settlement of Grievance and Dis p utes in Article V, and the Union sha ll 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, Indust r ial Welfare Commission Wage Order 16 ( ‘ Wage Order 16 ’ ) which is subject to the Procedure for Settlemen t 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 Dis p utes .’ [¶] I n addition to Contractual Disputes that may be brought by the Union as described above, all empl oyee 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 the6

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 rem edy. 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 la ws ( 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 Depar tment 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

- Mana gement Adjustment Board, but shall proceed directly to an independent Arbitrator. .

. . ” (Italics added.) In both of Hunt’s CBAs, t he remaining subp aragraphs of article XVI, sec tion L , address various sanitation and safety issues , including safety gear ( s ubparagraph 2) , safety measures and practices ( subparagraph 3), providing heaters when the outside temperature is below 40 degrees Fahrenheit ( subparagraph 4), air

- conditioned c abs ( 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.7

I n c ontrast, Ray’s CBAs contain a table of contents setting forth the various sections , and a ppendix C entitled , “ Grievance of Disputes .” Within a ppendix 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 a n arbitration provision embedded in a rticle 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 A greement 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 V I , P rocedure s for Settlement of Grievances and Disputes of this A greement. 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

. [¶] Wher ever 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 added.) Although placed under the sectio n dealing with breaks/rest periods, there is no reference to breaks/rest periods. The remaining s ections of a rticle XVI address holidays ( § A), payment of wages ( § B), a meal period ( § C), and a heat illness preventative recovery period ( § E). However, the final s ection , ( § 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 recovery8

periods are s ubject 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
up on 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 u nmistakable. ’ ” Acknowledging
that the language in a rticle XVI, section L , subparagraph 1(a), is a verbatim wording of the waiver found to be explicit, clear , and unmistakable in Corte z , the court distinguished the case based on the waiver’s placement unde r a rticle XVI, s ection 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 a rticle V “undermines any interpretation that claims under Wage Order 16 and the Labor Code (as opp osed 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

.9 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 unmista ka ble ’ ” 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. S tandard 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 inte rpretation 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 inter pretation 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. Henry10

Mayo Newhall Memorial Hospital ( 2017) 8 Ca l.App.5th 236, 24 5 , 2 ita lics 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 ) .) T hus, u nless 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 H unt’s claims are subject to arbitration. Regarding Hunt’s 2013 CBA, t he court explained that the arbitration provision was placed under a rticle XVI , s ection L, entitled,

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

2 Although Vasserman v. Henry Mayo Newhall Memorial Hosp ital , 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

- u nmistakable 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 co mpetition claim based on that statutory violation, the C ourt of A ppeal 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.11

v iolations or for any cause of action related to sanitation or safety. Moreover, the court found that a rticle XVI’s mandate that any disputes or grievances arising from W age O rder 16 be processed under a rticle 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 t he 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 inte rpretation of Article V is that it address es disputes brought by the union

. ” We agree. The reference to a rticle V does not clarify the issue regarding
arbitration because a rticle V establishes a “L abor

- M anagement A djustment B oard ” (the b oard) to interpre t 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, a rticle 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 t he union representative and the authorized representative of GSB; (2) a meeting between the union representative, GSB, and the l abor r elations representative of the employee’s association (Engineering Contractors Association, Inc. ) ; (3) referral of the dis pute or grievance to the b oard for consideration and decision; and (4) decision by the joint chairmen of the b oard or12

arbitrator. Thus, while a rticle V , section A, subparagraph 2, sets out an arbitration procedure, it does not mandate arbitration : “ In th e 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 a rt. V, § D.) Turning to Hunt’s 2016 CBA, the superior court noted th at it contained “important additions, perhaps intended to cure the problems with the early CBA.” Specifically, the following paragraph was added to a rticle XVI, section L , subparagraph 1(a) : “ Any dispute, comp laint 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
arbitra tion 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
Di sputes 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 wit hin the scope of this paragraph shall be referred to as ‘Contractual Disputes. ’ ” (Italics added.) 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 an13

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 a rticle XVI, section L , subparagraph 1(a) , and found that it “dispel[ed] any such notion.” That paragraph provides: “ I n 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 , incl uding 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

se cond paragraph to employee disputes resolves any conflict. The only reasonable interpretation of these two provisions is that disputes brought by the union are to be14

process ed under Article V, while disputes brought by employees are t o 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 b oard. However , the court found that, e ven if the additional language in Hunt’s 2016 CBA was intended t o cure any deficiencies in Hunt’s 2013 CBA, by placing it under a rticle XVI, s ection 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 a rticle XVI,

s ection L, concerning sanitation, safety , and rest periods

. By burying the arbitration provision within a rticle XVI, s ection 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 arbitr ation 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 contentio n, 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 to15

arbitrate statut ory . . . 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 provi sion 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 Vasque z , supra , 80 Cal.App.4th at pp. 435

- 436.) The burial of the arbitration provision under a rticle 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 establi shing 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. ’ ” ( Vasqu ez , 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 a rticle XVI, s ection 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.16

Contrary to GSB’s assertion, the labeling a nd 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. A fter examining Hunt’s 2013 CBA and Hunt’s 2016 CBA, we conclude that neither clearly and unmistakably
mandate s arbitration of his claims.
III. DISPOSITION The order denying the motion to compel arbitration is affirmed. Responde nt is awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

CODRINGTON J.

RAPHAEL J.