Ehret v. Winco Foods, LLC

• Decision Date: 13 August 2018
• Docket Number: E067575
• Citation: 26 Cal.App.5th 1,236 Cal.Rptr.3d 572
• Court: California Court of Appeals Court of Appeals
• Parties: Kristina EHRET et al., Plaintiffs and Appellants, v. WINCO FOODS, LLC et al., Defendants and Respondents.

26 Cal.App.5th 1

236 Cal.Rptr.3d 572

Kristina EHRET et al., Plaintiffs and Appellants,

v.WINCO FOODS, LLC et al., Defendants and Respondents.

E067575

Court of Appeal, Fourth District, Division 2, California.

Filed August 13, 2018

Makarem & Associates, Ronald W. Makarem, and Jean-Paul Le Clercq, Los Angeles, for Plaintiffs and Appellants.

Seyfarth Shaw, Nick C. Geannacopulos, Eden Anderson, San Francisco, Kristina M. Launey, Sacramento, and Simon L. Yang, Los Angeles, for Defendants and Respondents.

OPINION

RAMIREZ P. J.

Plaintiffs Kristina Parker¹ and Elmer Gillett (collectively the Employees) were employees of WinCo Foods, LLC and/or WinCo Holdings, Inc. (collectively WinCo). They do not dispute that they were subject to a collective bargaining agreement which at least purported to provide that an employee who works a shift of not more than six hours is not entitled to a meal break.

The Employees filed this action claiming, among other things, that WinCo was violating Labor Code section 512, subdivision (a). This statute provides that an employee who works more than five hours is entitled to a meal break, "except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee." The trial court ruled that the collective bargaining agreement waived the Employees' statutory right to a meal break whenever they worked more than five but not more than six hours.

The Employees appeal. They contend that the trial court erred because the waiver in the collective bargaining agreement was not "clear and unmistakable," as required by federal law. We will hold that the waiver was clear and unmistakable, because it specifically mentioned meal breaks and it was irreconcilable with the statutory right to a meal break during a shift of more than five but not more than six hours. Hence, we will affirm.

IFACTUAL BACKGROUND

The Employees worked as cashiers at WinCo Store #46 in Moreno Valley. All hourly, non-management employees of Store #46 were members of the WinCo Foods #46 Hourly Employee Association (Association). The Association was their sole collective bargaining representative. Gillett was the chair of the Association.

In March 2013, Gillett, on behalf of the Association, signed a document entitled "Hourly Employee Working Conditions & Wages Agreement" (capitalization altered) (Agreement). The Employees concede that the Agreement constituted a collective bargaining agreement.²

The Agreement provided: "Employees who work shifts of more than 5 hours will be provided a meal period of at least 30 minutes, except that when a work period of not more than 6 hours will complete a day[']s work, a meal period is not required. For shifts that are ‘more than 5 hours’ up to 7 hours, the meal period must begin on or after the 2nd hour worked but before or on the 5th hour worked. If the shift is more than 7 hours, the meal period must begin on or after the 3rd, but before or on the 5th hour worked. It is WinCo Foods policy not to mutually agree with employees to waive their lunch period." (Superscript omitted.)

Thereafter, when members of the Association worked shifts of more than five but not more than six hours, they were denied a meal break. Generally, however, when they worked shifts of more than six hours, they were given a meal break.³

IIPROCEDURAL BACKGROUND

In 2014, the Employees filed this action against WinCo under the Private Attorney General Act ( Lab. Code, § 2699 ), on behalf of all similarly situated WinCo employees. The operative complaint alleged, as relevant here, that WinCo violated Labor Code section 512, subdivision (a) by requiring the Employees to work through mandatory meal breaks.

WinCo filed a motion for summary judgment, arguing, among other things, that the Agreement waived the Employees' statutory right to a meal break when they worked more than five hours but not more than six hours. In their opposition to the motion, the Employees argued, among other things, that the asserted waiver in the Agreement was not clear and unmistakable.

The trial court granted the motion. It ruled that the Employees "waived their right to a meal period for shifts of no more than six hours by virtue of the Store 46 March 2013 collective bargaining agreement." Accordingly, it entered judgment against the Employees and in favor of WinCo.

IIITHE CLEAR AND UNMISTAKABLE WAIVER STANDARD

Labor Code section 512, subdivision (a), as relevant here, provides: "An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. " (Italics added.)

Under Labor Code section 219, subdivision (a), the provisions of Labor Code section 512"can[not] in any way be contravened or set aside by a private agreement, whether written, oral, or implied." Thus, the right to a meal break during a shift of more than six hours cannot be waived. However, because Labor Code section 512, subdivision (a) itself provides that the right to a meal break during a shift of more than five hours but not more than six hours can be waived, Labor Code section 219, subdivision (a) does not prohibit an agreement that does so.

"It is well settled that a union may lawfully waive statutory rights of represented employees in a collective bargaining agreement. [Citation.]" ( American Freight System, Inc. v. N.L.R.B. (D.C. Cir. 1983) 722 F.2d 828, 832.) However, " ‘[w]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is "explicitly stated." More succinctly, the waiver must be clear and unmistakable.’ [Citations.]" ( Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 80, 119 S.Ct. 391, 142 L.Ed.2d 361 ; accord, Livadas v. Bradshaw (1994) 512 U.S. 107, 125, 114 S.Ct. 2068, 129 L.Ed.2d 93 ; California State Employees' Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 938, 59 Cal.Rptr.2d 488.)

United States Supreme Court opinions are controlling on this point because, when it comes to the enforcement of a collective bargaining agreement, federal common law preempts state law. ( Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co. (1962) 369 U.S. 95, 103-104, 82 S.Ct. 571, 7 L.Ed.2d 593.) For the same reason, federal appellate court opinions are highly persuasive.

WinCo argues that this "clear and unmistakable" standard applies only to a waiver of a "non-negotiable" right. It asserts that a waiver of a "negotiable" right — such as the statutory meal break right at issue here — is governed exclusively by state-law principles of contract interpretation. It seems undisputed that, if state-law principles do apply, then the Agreement must be construed as waiving the statutory right to a meal break, and WinCo must prevail.

We question whether a collective bargaining agreement can ever waive a nonnegotiable right. (See Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 212, 105 S.Ct. 1904, 85 L.Ed.2d 206 ; Valles v. Ivy Hill Corp. (9th Cir. 2005) 410 F.3d 1071, 1076 ; Balcorta v. Twentieth Century-Fox Film Corp. (9th Cir. 2000) 208 F.3d 1102, 1111 ; Zavala v. Scott Bros. Dairy, Inc. (2006) 143 Cal.App.4th 585, 594, 49 Cal.Rptr.3d 503 ; Lujan v. Southern California Gas Co. (2002) 96 Cal.App.4th 1200, 1211, 117 Cal.Rptr.2d 828.) If not, then only a negotiable right can be waived, and the clear and unmistakable standard applies to such a waiver.

However, we need not definitively decide this question. We may simply assume that, contrary to WinCo's position, the clear and unmistakable standard applies to any waiver in a collective bargaining agreement of any statutory right. As will be seen, even under the clear and unmistakable standard, WinCo prevails.

The vast majority of both state and federal cases in which the clear and unmistakable standard has been applied have involved arbitration. In such cases, the issue is whether an arbitration clause in a collective bargaining agreement clearly and unmistakably waives an individual employee's right to a judicial forum for a claim of a violation of an underlying statutory right. In this context, it has been held that there is no waiver of the right to a judicial forum unless the collective bargaining agreement specifies the statutory right.

For example, in Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, 95 Cal.Rptr.2d 294, an employee sued his employer, alleging, among other things, national origin discrimination. ( Id . at p. 432, 95 Cal.Rptr.2d 294.) The applicable collective bargaining agreement provided that the employer would not "discriminate against any employee on account of national origin ‘under applicable federal and state law.’ " ( Id . at p. 436, 95 Cal.Rptr.2d 294.) It also provided that all grievances or disputes regarding the application of the terms of the collective bargaining agreement were subject to a grievance and arbitration procedure. ( Ibid . )

The appellate court held that the collective bargaining agreement did not require arbitration of the employee's national origin discrimination claim. ( Vasquez v. Superior Court , supra , 80 Cal.App.4th at p. 436, 95 Cal.Rptr.2d 294.) It acknowledged that "[a] union-negotiated waiver of employees' statutory rights to a judicial forum for claims of employment discrimination must be ‘ "clear and unmistakable." ’ [Citation.]" ( Id . at p. 434, 95 Cal.Rptr.2d 294.) "The test is whether a collective bargaining agreement makes compliance with the statute a contractual commitment subject to the arbitration clause. [Citations.]" ( Id . at pp. 434-435, 95 Cal.Rptr.2d 294, fn.omitted.) For an arbitration clause to apply clearly and unmistakably to a discrimination claim, "[a] simple agreement...