Arango v. R.J. Noble Co.

• Decision Date: 10 February 2020
• Docket Number: G056407
• Parties: ARTURO ARANGO, Plaintiff and Appellant, v. R.J. NOBLE COMPANY et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

ARTURO ARANGO, Plaintiff and Appellant, v. R.J. NOBLE COMPANY et al., Defendants and Respondents.

G056407

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

February 10, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2017-00916018)

OPINION

Appeal from an order of the Superior Court of Orange County, William D. Claster, Judge. Affirmed in part and reversed in part and remanded with directions. Motion to dismiss appeal denied.

Shanberg, Stafford & Bartz, Ross E. Shanberg and Aaron A. Bartz for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Ronald W. Novotny, Mia A. Lomedico, Osaama Saifi and April L. Szabo for Defendants and Respondents.

* * * Plaintiff and appellant Arturo Aranago is one of four named plaintiffs in this putative class action for wage and hour and related claims against defendants and respondents R.J. Noble Company (Noble) and Strength Transportation Management, Inc. (Strength; collectively defendants). The plaintiffs are members of a union, which is a party to a collective bargaining agreement with Strength.

Plaintiff appeals from an order compelling him to arbitrate those claims. He argues his claims are exempt from arbitration under the Federal Arbitration Act (9 U.S.C., § 4 et seq.; FAA), and under Labor Code section 229 (all further statutory references are to this code unless otherwise stated) he cannot be compelled to arbitrate wage and hour claims. He also contends the collective bargaining agreement does not provide for arbitration of statutory claims but only applies to interpretation of that agreement. Further, he maintains, the union cannot waive his right to litigate statutory claims and even if it could, there was no clear and explicit waiver of that right, as required. He also asserts the arbitration provision is unconscionable, and the court erroneously compelled him to arbitrate his claims against Noble, which is not a party to the collective bargaining agreement.

We agree plaintiff is exempt from the FAA as a transportation worker, and pursuant to section 229 he may not be compelled to arbitrate most, but not all, of his claims. Three causes of action are arbitrable under the collective bargaining agreement because the union had the authority to agree the statutory claims would be arbitrated and the waiver of a judicial forum was clear and unmistakable. Although there is one unconscionable term in the arbitration provision, on remand it should be severed and the remainder of the arbitration provisions enforced. Additionally, it was proper to order the causes of action to be arbitrated against both defendants. Finally, on remand, pursuant to Code of Civil Procedure section 1281.2, subdivision (c), the court should consider whether it should delay the order to arbitrate the three arbitrable causes of action until the other causes of action have been litigated.

We deny defendants' motion to dismiss the appeal on the grounds the order compelling arbitration is not appealable, concluding it is appealable under the death knell doctrine and also because we have the authority to treat the appeal as a petition for writ of mandate.

FACTS AND PROCEDURAL HISTORY

According to the complaint, Noble is a general engineering contractor, performing, among other things, road grading and paving. Strength, which, according to the complaint is a subsidiary of or company related to and controlled by Noble, is a licensed motor carrier, regulated by the United States Department of Transportation (DOT) and required to comply with various federal statutes and regulations. Its primary business is to provide trucking services to a variety of companies, generally delivering hot asphalt for new construction and repair of roads and interstate highways, such as I-5 and I-15.

Plaintiff was employed by Strength¹ as a truck driver from 2006 to October 2017 delivering asphalt, rock, and other construction materials, which he picked up at defendants' plants and hauled to highways and roads under construction or repair.

During plaintiff's work tenure, there was a collective bargaining agreement (CBA)² between Strength and the Industrial Professional and Technical Workers International Union, SIUNA, AFL-CIO (Union). The CBA stated the Union was the "sole Collective Bargaining Agent and Representative of all" "truck drivers employed by [Strength] at its facility located in Corona, California."

Article V of the CBA, Meal Periods, provides: "The parties hereby acknowledge that it is has always been understood and agreed between the parties that any dispute or grievance regarding overtime, meal periods, rest periods or any other subject matter covered by any and all wage orders issued by the State of California[,] including Industrial Wage Order 16-2001, which covers on-site occupations in the construction, mining, drilling and logging industries, has been and will be . . . processed under and in accordance with the dispute and grievance procedure set forth in the collective bargaining agreement between the parties."

Section 1 of Article VII of the CBA, Grievance and Arbitration, states: "Should any controversy, dispute, or disagreement arise during the term of this Agreement, . . . the difference shall be adjusted as follows[:] [¶] (1) The involved employee shall first attempt to resolve the issue(s) with his immediate supervisor or other representative designated by [Strength], within ten (10) days of the occurrence of first knowledge thereof. [¶] (2) If the issue remains unresolved in Paragraph 1 of the above, the Union and [Strength] will meet to resolve the issue within ten (10) days. [¶] (3) If the issues remain unsolved under the provisions of Paragraph 2 above, written notice of the grievances shall be filed with the standing committee within ten (10) days of meeting described in paragraph (2) above. [¶] (4) It is agreed and understood that the two (2) chairmen of the negotiating committee shall comprise the original standing committee. . . . Upon receipt of written notice from either party setting forth the nature of the dispute, the two chairmen of the standing committee . . . shall[,] within a calendar month from receipt of such written notice, attempt to reach a settlement. This committee shall interpret the intent and application of this agreement and any deadlock decision resulting from this standing committee shall be referred to arbitration. [¶] (5) If the matter is deadlock (sic) after receipt of the written notices described in Paragraph 4 above, such dispute shall be referred to [an arbitrator]. The decision of the arbitrator upon the question in dispute shall be final and binding upon the parties hereto; however,the arbitrator shall not have the authority to change, alter, or modify any of the terms or provisions of this Agreement."

Section 2 of Article VII of the CBA, Limitation, states: "All claims shall be limited to a maximum of thirty (30) days retroactive from the date the claim is submitted to [Strength] in writing. [¶] Any such grievance, claim or dispute not submitted within such time shall be waived unless both members of the standing committee, for good cause, accept[] such submission, or unless either party has intentionally concealed the facts upon which the grievance, claim or dispute is based."

Section 6 of Article XX of the CBA, Non-Discrimination, provides: "This Agreement prohibits conduct which would violate laws regulating the workplace and conduct by and between the Employer and the Union and/or employees. Issues involving such prohibited conduct, if alleged to be a violation of the agreement and/or applicable law, shall be resolved exclusively under the grievance and arbitration procedures contained in this Article. The laws and regulations encompassed by these grievance and arbitration procedures include but are not limited to the following laws and regulations which are incorporated herein by this reference: [¶] [list of federal and state laws, including the Equal Pay Act, the National Labor Relations Act, the Fair Labor Standards Act, and the California Labor Code, and additional regulations in effect or promulgated by an agency enforcing those statutes and regulations]. [¶] . . . [¶] All other federal or state legislation or administrative regulation currently in effect or subsequently enacted during the term of the Agreement which affects the workplace, [Strength], the Union, and/or employees covered by this Agreement is encompassed by this language and the exclusive dispute resolution mechanisms established in the grievance and arbitration provisions of this Agreement. [¶] [Strength], the Union and the employees represented by the Union understand and agree that by channeling issues under this Agreement and applicable law to the grievance and arbitration process in this Article, they have knowingly and willingly chosen to forego access to court and/or administrative agencies.The grievance and arbitration processes in this Article provide an exclusive remedy to any aggrieved person seeking relief."

The original complaint was filed in April 2017 against Noble by three plaintiffs, none of whom is a party to this appeal. Noble's motion to compel arbitration was granted as to two of the plaintiffs and denied as to the third. The first amended complaint (FAC), where plaintiff became a party, alleges causes of action for failure to pay minimum wages and overtime wages; failure to provide proper meal periods and rest periods; failure to provide itemized wage statements; violation of sections 201 and 202 (prompt payment of wages to terminated employee); 204 (timely payment of wages); 1771 et seq. and 223 (prevailing wage...