Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge., Super. Ct. No. 37-2008-00063357-CU-OE-EC
McDONALD, J.
Defendant A.M. Ortega Construction, Inc. (Employer) appeals an order denying its motion to compel arbitration of two causes of action alleged in the wage and hour complaint filed against it by plaintiffs Raul Betancourt, Brandon L. Jones, Kyle H. Keil, and Steven M. Pasos (collectively Employees). On appeal, Employer contends the trial court erred by denying its motion because: (1) the second cause of action in effect alleges a breach of the collective bargaining agreements (CBAs) between Employer and Employees' union that provide for arbitration of disputes involving the CBAs; and (2) the third cause of action for unpaid overtime or other hours worked involves the rate of pay due Employees under the CBAs and is therefore subject to arbitration under the CBAs despite statutory provisions regarding payment for overtime or other hours worked.
FACTUAL AND PROCEDURAL BACKGROUND
On April 14, 2008, Employees and other present and former employees of Employer filed a wage and hour complaint against Employer alleging eight causes of action. Employees are all present or former employees of Employer at its Lakeside location. The other named plaintiffs are all present or former employees of Employer at its location in Pedley, California. The complaint sought certification of a class consisting of all present or former construction employees of Employer at its Lakeside (San Diego) and Pedley locations during the preceding four-year period.
The complaint alleged that as of June 23, 2003, Employer entered into a "blanket agreement" with San Diego Gas and Electric Company (SDGE) for all contract work performed by Employer for SDGE. The complaint further alleged:
"18. On about January 11, 2005, SDGE notified the Employer, in writing, that 'contractors are required to pay their workers who are employed on energy utility construction projects, awarded by [SDGE] on or after December 16, 2004, prevailing wages as determined by the State of California Department of Industrial Relations....' All subsequent specifications for work performed by the Employer for SDGE after that notice incorporated, in writing, this requirement to pay prevailing wages.
"19. The Employer and SDGE subsequently entered into a 'Fifth Amendment' to the SDGE Blanket Agreement, 'effective as of December 16, 2004,' which added a new section 19.3 to that agreement, providing that: [¶] 'Contractor [i.e., Employer] shall ensure that all workers including its own or those of subcontractor[s] and/or agent[s], performing the WORK shall be paid prevailing wages as that level of pay would be determined for public works projects subject to California Labor Code sections 1720-1815.'
"20. The above obligation to pay prevailing wages was incorporated into the SDGE Blanket Agreement specifically for the benefit and protection of Plaintiffs [e.g., Employees] and other employees of Employer, who are the intended beneficiaries of this contractual obligation....
"21. The Employer did perform numerous projects for SDGE covered by the SDGE Blanket Agreement, from December 16, 2004[,] to the present, and continues to do so. It employed workers to perform the work covered by the SDGE Blanket Agreement. Those are the workers who are members of the San Diego Subclass here."
The second cause of action alleged Employer breached its contract with SDGE to pay its workers prevailing wages. It further alleged that Employees, as intended third party beneficiaries of that contract, were entitled to recover from Employer the difference between the wages actually paid and the prevailing wages it was contractually required to pay.
The third cause of action alleged Employer did not pay Employees for all hours worked. It alleged:
"48. All employees were required to report to either the jobsite or the yard. Those employees who reported to the yard were required to load and unload equipment and tools from Employer vehicles, before and after traveling as passengers in those vehicles to and from the jobsite. These employees were not paid for their time spent traveling and/or loading and unloading. Employees required to drive Employer vehicles between the yard and the jobsite and to load and unload equipment were compensated for their drive time according to a standard schedule of time increments, which were less than the time actually spent driving. They were not paid for time spent loading and unloading.
"49. The employees required to drive, travel, and/or load and unload vehicles were not paid for all of their hours worked, even at the lower, non-prevailing wage rates. They are entitled to compensation, at the correct rate, for all of this time."
On June 12, 2008, Employer filed a motion to compel arbitration of the second and third causes of action and to stay the court proceedings pending arbitration. Employer argued the grievance and arbitration provisions of the CBAs between it and the Employees' union, International Brotherhood of Electrical Workers (IBEW), required arbitration of those claims. Employer submitted copies of two CBAs that covered the period of December 1, 2002, through January 31, 2007.
Employees opposed the motion to compel arbitration, arguing the CBAs did not require arbitration of the second and third causes of action. Employer filed a reply in support of its motion.
On September 11, 2008, the trial court issued a minute order (Order) denying Employer's motion to compel arbitration of the second and third causes of action. In so doing, the court sustained Employer's objection to the authentication by Employees' counsel of two contracts between Employer and SDGE. Employer timely filed a notice of appeal challenging the Order.
DISCUSSION
I
Appealability
Employees assert the appeal should be dismissed because the Order is not a final appealable order. They argue that because the Order did not dispose of all claims between the parties, it is not a final order or judgment for purposes of appeal.
Code of Civil Procedure section 1294 provides: "An aggrieved party may appeal from: [¶] (a) An order dismissing or denying a petition to compel arbitration...." (Italics added.) As Employees note, in Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796 (Otay River), we stated: "Under section 1294, appealable arbitration orders also require finality and this requirement is consistent with the language of section 1294 and the general prohibition of appeals from interlocutory nonfinal judgments in section 904.1, subdivision (a). [Citation.]" (Otay River, at p. 803.) However, Employees omit our further statements in that case regarding finality of orders denying petitions or motions to compel arbitration. We stated:
All statutory references are to the Code of Civil Procedure unless otherwise specified.
"Significantly, courts have recognized that an order denying arbitration is a final ruling entitled to preclusive effect in subsequent proceedings. [Citations.] [¶] Additionally, an order denying arbitration is final and appealable even though more litigation is contemplated in a separate action." (Otay River, at p. 803, italics added.)
We further noted that petitions to compel arbitration are special proceedings under the Code of Civil Procedure:
"The provisions of the Code of Civil Procedure concerning arbitration, including petitions to compel arbitration (§ 1290), are all found in part 3 of the Code of Civil Procedure, which pertains to special proceedings. Because the Legislature created a comprehensive procedural scheme to govern arbitration proceedings, we reject [appellant's] contention that section 904.1, governing appeals in civil proceedings generally, provides the authority for this appeal." (Otay River, at p. 802.)
In Otay River, we concluded: "[W]here... the trial court enters an order in an arbitration proceeding resolving the only issue before the court in that proceeding, the order is essentially a judgment...." (Id. at p. 805.)
Because the Order disposed of the entire special proceeding on Employer's motion to compel arbitration, we conclude it is a final order and therefore appealable under section 1294, subdivision (a), which provides a party may appeal from "[a]n order... denying a petition to compel arbitration." (Italics added.) After issuance of the Order, there were no further issues regarding arbitrability or arbitration of claims to be determined. (Otay River, supra, 158 Cal.App.4th at p. 805; Acosta v. Kerrigan (2007) 150 Cal.App.4th 1124, 1128, fn. 4; cf. Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 443.) Accordingly, the general rule for appealability that requires finality of an order or judgment is satisfied.
Although Employees argue the Order is not appealable because not all of their complaint's causes of action have been decided, that argument is irrelevant to an appeal of an order denying a petition to compel arbitration. In a special proceeding on a petition to compel arbitration, finality is satisfied if the issues in that special proceeding have been finally decided (e.g., order denying petition to compel arbitration). Because "the trial court enter[ed] an order in an arbitration proceeding resolving the only issue before the court in that proceeding, the [O]rder is essentially a judgment...." (Otay River, supra, 158 Cal.App.4th at p. 805.) To the extent there are other causes of action alleged in Employees' civil action not made part of their motion to compel arbitration, a final determination on those other causes of action is relevant only to appealability of a future judgment in that civil action and not as to the appealability of the Order in the special proceeding on their motion to compel arbitration. (Id. at pp. 802-803.) Employees do not cite any apposite case or persuade us to conclude otherwise. We conclude the Order is appealable.
II
Second Cause of Action
Employer contends the trial court erred by denying its motion to compel arbitration of Employees' second cause of action because that cause of action in effect alleges a breach of the CBAs, which agreements provide for arbitration of disputes involving the CBAs.
A
Effective November 1, 2003, Employer and Employees' union at the time agreed to be bound by the terms of the Southern California underground construction agreement between IBEW Local 1245 and Western Line Constructors Chapter, Inc., and NECA, Inc., which agreement covered the period from December 1, 2002, through November 30, 2005 (2003 CBA). Section 3.05(a) of the 2003 CBA set forth "[t]he minimum hourly rate of wages" (italics added) to be paid by Employer for each classification of Employees (e.g., foreman, equipment operator, technician, U/G/technician) for the applicable time periods. The 2003 CBA further provided for resolution of grievances or other disputes:
"Section 1.06 All grievances or questions in dispute shall be adjusted by the duly authorized representative of each of the parties to this Agreement. In the event that these two are unable to adjust any matter within 48 hours, they shall refer the same to the Labor-Management Committee.
"Section 1.07 All matters coming before the Labor-Management Committee shall be decided by a majority vote. Four members of the Committee, two from each of the parties hereto, shall be a quorum for the transaction of business, but each party shall have the right to cast the full vote of its membership and it shall be counted as though all were present and voting.
"Section 1.08 Should the Labor-Management Committee fail to agree or to adjust any matter, such shall then be referred to the Council on Industrial Relations for the Electrical Contracting Industry for adjudication. The Council's decisions shall be final and binding."
Effective September 1, 2005, Employer and Employees' union at the time entered into the Southern California underground construction agreement, covering the period from September 1, 2005, through January 31, 2007 (2005 CBA). Section 3.05(a) of the 2005 CBA set forth "[t]he minimum hourly rate of wages" (italics added) to be paid by Employer for each classification of Employees (e.g., foreman, equipment operator, leadman, technician/driver, U/G/tech, U/G tech/trainee). The 2005 CBA provided for resolution of grievances and disputes:
"Section 1.06 All grievances or questions in dispute shall be adjusted by the duly authorized representative of each of the parties to this Agreement. In the event that these two are unable to adjust any matter within 48 hours, they shall refer the same to the Labor-Management Committee.
"Section 1.07 All matters coming before the Labor-Management Committee shall be decided by a majority vote. Four members of the Committee, two from each of the parties hereto, shall be a quorum for the transaction of business, but each party shall have the right to cast the full vote of its membership and it shall be counted as though all were present and voting.
"Section 1.08 Should the Labor-Management Committee fail to agree or to adjust any matter, such shall be referred to final and binding arbitration governed by the rules of the federal mediation and conciliation service."
Exhibit A to the 2005 CBA provided specific grievance procedures:
"STEP ONE: A Grievance must be filed no later than ten (10) days after the date of action complained of, or the date employee became aware of the incident which is the basis for the Grievance, whichever is later.
"STEP TWO: All Grievances shall be presented orally by the aggrieved employee and a Shop Steward or a Union Business Representative to the aggrieved employee's immediate supervisor. Both parties shall put forth their best efforts to resolve the Grievance at this level within seventy-two (72) hours. If the Grievance is not resolved within seventy-two (72) hours of the oral discussion, Step Three shall be followed.
"STEP THREE: In the event that the Grievance is not settled by the procedure in Step Two, the Union Business Representative shall, not later than ten (10) calendar days after the completion of Step Two, present the Employer with the Grievance in written form, setting forth the following:
"a. A statement of the Grievance and the facts upon which it is based.
"b. The Section or Sections of the Agreement relied upon or claimed to have been violated.
"c. The remedy or correction which is desired.
"In the event either party desires a meeting to discuss the Grievance, the parties shall meet within ten (10) calendar days from receipt of said Grievance for the purpose of discussing the Grievance. The party served with written notice of the Grievance shall within ten (10) calendar days after the aforementioned meeting, or in the event no meeting is held within ten (10) calendar days after the receipt of the Grievance, answer the Grievance in writing.
"STEP FOUR: In the event the Grievance is not settled in Step Three, it shall be referred to the Labor-Management Committee.
"Step Five: In the event of deadlock within the Labor-Management Committee, the dispute shall be referred to final and binding arbitration governed by the rules of the Federal Mediation and Conciliation Service." (Italics added.)
On September 16, 2005, Employer and Employees' union at the time signed a side letter to the 2005 CBA, stating:
"Whereas, [Employer] does the vast majority of its work in San Diego County on a prevailing wage basis through SDG&E as ordered by the new Public Utilities Commission ('PUC') directive;
"Whereas, the parties believe that the agreement which they are entering into this date [i.e., the 2005 CBA] will meet or exceed the prevailing wage rate for the type of work which [Employer] performs; and
"Whereas, the parties want [Employer] to be competitive if it desires to perform work for private developers where the prevailing wage rate is not required by the above-referenced PUC order or other governmental requirement (hereafter referred to as 'Developer Work');
"Now, therefore, the parties have entered into this side letter agreement.
"If [Employer] performs Developer Work, it will be allowed to pay the wages and benefits on such Developer Work specified in the [2005 CBA]."
In its motion to compel arbitration, Employer argued the second cause of action of Employees' complaint was subject to the arbitration provisions of the 2003 and 2005 CBAs. Employer argued the second cause of action "necessarily states a claim for breach of the CBA, as a contract purporting to address the payment of wages to the employees in the bargaining unit is incapable of existing independent of the CBA." Employer argued that because the 2003 and 2005 CBAs governed the rate of pay for Employees, their breach of contract claim arising out of its agreement with SDGE regarding payment of prevailing wages must be arbitrated pursuant to those CBAs. By denying Employer's motion to compel arbitration, the trial court implicitly concluded the second cause of action was not required to be arbitrated pursuant to the 2003 and 2005 CBAs.
B
Section 1281 provides: "A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable...." Section 1281.2 provides: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists...." (Italics added.)
"[T]he Legislature has expressed a 'strong public policy in favor of arbitration,'... [and] courts ' "will indulge every intendment to give effect to such proceedings." ' " (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) In general, "[d]oubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration." (United Transportation Union v. Southern Cal. Rapid Transit Dist. (1992) 7 Cal.App.4th 804, 808.) In the context of collective bargaining agreements, California's public policy "favors arbitration provisions in collective bargaining agreements, and recognizes the important part that they play in helping to promote industrial stabilization." (Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 180.)
"The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement. [Citations.]... If the facts are undisputed, on appeal we independently review the case to determine whether a valid arbitration agreement exists. [Citations.]" (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586.) Likewise, "[w]e review the trial court's order denying [a] petition to compel arbitration independently. ' "We have no need to defer, because we can ourselves conduct the same analysis," which "involves a purely legal question or a predominantly legal mixed question." [Citation.]' [Citations.]" (Flores v. Axxis Network & Telecommunications, Inc. (2009) 173 Cal.App.4th 802, 805.)
C
Employees' second cause of action alleged Employer breached its December 16, 2004, agreement with SDGE to pay Employees prevailing wages as determined by the Department of Industrial Relations for public works projects. That cause of action alleged Employees, as intended third party beneficiaries of the SDGE agreement, were entitled to recover the difference between the wages actually paid them and the prevailing wage required to be paid them pursuant to that agreement.
Employer asserts that because the 2003 and 2005 CBAs "set forth the specific wages [Employees] are entitled to receive [citations], as well as provide a mechanism for grieving, and then arbitrating, 'all grievances or questions in dispute' under the [CBAs]," Employees' claims for prevailing wages under the SDGE contract are subject to the CBAs' grievance and arbitration provisions. However, based on our independent review of the 2003 and 2005 CBAs, we conclude they do not preclude Employer from entering into an independent agreement (whether with Employees or a third party like SDGE) obligating it to pay Employees a prevailing wage rate greater than the minimum hourly rates of pay set forth in those CBAs. Furthermore, we conclude an independent agreement to pay prevailing wages would not conflict or be inconsistent with the 2003 CBA or 2005 CBA. Because Employees do not allege any breach of Employer's obligation under the CBAs to pay the minimum wage rates, the second cause of action for breach of the SDGE contract based on its failure to pay Employees prevailing wages does not involve or require interpretation of any provision of the CBAs. Because the second cause of action is based on an agreement with a third party (i.e., SDGE) independent from, and not inconsistent with, the 2003 and 2005 CBAs, those CBAs do not govern Employees' claim, as intended third party beneficiaries, for breach by Employer of its obligation under the SDGE agreement to pay them prevailing wages. (Cf. Aguilera v. Pirelli Armstrong Tire Corp. (9th Cir. 2000) 223 F.3d 1010, 1015 ["When an independent agreement is inconsistent with the provisions of a collective bargaining agreement, the bargaining agreement controls."]; Young v. Anthony's Fish Grottos, Inc. (9th Cir. 1987) 830 F.2d 993, 996-998 [because CBA's provisions conflicted with alleged independent agreement, CBA preempted breach of contract claim based on that independent agreement].)
The United States Supreme Court stated: "[A] plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement." (Caterpillar Inc. v. Williams (1987) 482 U.S. 386, 396.) Although, as Employer notes, there are factual dissimilarities between Caterpillar and this case, Employer does not persuade us those dissimilarities detract from the Supreme Court's pronouncement of the general principle of law that an employee may assert state contract rights independent of a CBA. Furthermore, the breach of the alleged SDGE contract requiring payment of prevailing wages does not conflict with any provision of the 2003 CBA or 2005 CBA regarding the rate of pay. Rather, the CBAs set forth minimum rates of pay and not the only rate of pay that must (or may) be paid to Employees. Accordingly, neither CBA precludes Employees from enforcing, as intended third party beneficiaries, an independent agreement of Employer providing for payment of wages in excess of those minimum rates.
Caterpillar also stated: "Section 301 [of the Labor Management Relations Act (LMRA)] governs claims founded directly on rights created by [CBAs], and also claims 'substantially dependent on analysis of a [CBA].' [Citations.]... [¶]... [Employees'] complaint is not substantially dependent upon interpretation of the [CBA]. It does not rely upon the [CBA] indirectly, nor does it address the relationship between the individual [e.g., independent] contracts and the [CBA]." (Caterpillar Inc. v. Williams, supra, 482 U.S. at pp. 394-395, fn. omitted.) It further stated: "The Court has stated that 'not every dispute concerning employment, or tangentially involving a provision of a [CBA], is pre-empted by § 301 or other provisions of the federal labor law.' [Citation.] Claims bearing no relationship to a [CBA] beyond the fact that they are asserted by an individual covered by such an agreement are simply not pre-empted by § 301. [Citation.]" (Id. at p. 396, fn. 10.)
Furthermore, there is nothing in the 2003 CBA or 2005 CBA that requires Employees to follow the grievance and arbitration provisions when asserting a breach of contract claim based on an independent contract not inconsistent with the CBAs. Although, as Employer asserts, the CBAs provide for arbitration of "all grievances or questions in dispute" under the agreements, we conclude the Employees' second cause of action for Employer's breach of the SDGE contract for failure to pay prevailing wages does not involve a grievance or question in dispute under either CBA. Employees do not allege that Employer did not pay them the minimum rates of pay set forth in the 2003 or 2005 CBA. Rather, they allege Employer breached its independent contract with SDGE pursuant to which it agreed to pay Employees prevailing wages greater than those contained in the CBAs. Employer's obligation to pay Employees prevailing wages does not involve or conflict with either the 2003 or 2005 CBA and therefore does not trigger the grievance and arbitration provisions contained in those CBAs.
The 2003 CBA provided procedures for resolving "[a]ll grievances or questions in dispute," but in so doing did not define the grievances or questions in dispute subject to its dispute resolution provisions. Absent any express provision stating otherwise, we conclude, as Employer apparently concedes, the 2003 CBA's dispute resolution provisions apply only to grievances and questions in dispute arising under the provisions of the 2003 CBA. Because Employees' second cause of action alleged Employer breached its obligation to pay them prevailing wages pursuant to its SDGE contract (and does not mention or otherwise rely on Employer's obligations under the 2003 CBA), that cause of action or dispute does not arise, and does not require resolution, under the provisions of the 2003 CBA.
Likewise, the 2005 CBA provided procedures for resolving "[a]ll grievances or questions in dispute," but in so doing did not define the grievances or questions in dispute subject to its dispute resolution provisions. Absent any express provision stating otherwise, we conclude, as Employer apparently concedes, the 2005 CBA's dispute resolution provisions apply only to grievances and questions in dispute arising under the provisions of the 2005 CBA. Because Employees' second cause of action alleged Employer breached its obligation to pay them prevailing wages pursuant to its SDGE contract (and does not mention or otherwise rely on Employer's obligations under the 2005 CBA), that cause of action or dispute does not arise, and does not require resolution, under the provisions of the 2005 CBA.
Exhibit A to the 2005 CBA sets forth the specific procedures (i.e., five steps) to be followed in the event of a grievance under that CBA. Although Exhibit A uses the capitalized term "Grievance" in setting forth the five-step grievance and arbitration provisions, neither Exhibit A nor the main text of the 2005 CBA defines the term "Grievance." Furthermore, Exhibit A contains language supporting the inference that the term "Grievance" includes only those disputes arising under the 2005 CBA. Step Three provides that if the "Grievance" is not settled under the Step Two procedure, the employee's union representative shall present Employer with a written Grievance setting forth "[t]he Section or Sections of the Agreement relied upon or claimed to have been violated." We conclude the term "Grievance," as used in the 2005 CBA, applies only to grievances arising under the 2005 CBA and not to claims arising under independent contracts of Employer (e.g., the SDGE contract). Because the 2005 CBA provides for minimum rates of pay, Employees' second cause of action for prevailing wages based on Employer's alleged breach of its SDGE contract (an independent contract) does not rely upon the 2005 CBA and does not otherwise claim any violation subject to the grievance and arbitration provisions of that CBA.
We are not persuaded by Employer's argument its side letter, dated September 16, 2005, with Employees' union amended, or was incorporated into, the 2005 CBA and provides that Employer need not pay Employees any prevailing wage that exceeds the minimum rates of pay set forth in the 2005 CBA. The operative provision of that side letter provides that if Employer "performs Developer Work [i.e., work for private developers where the prevailing wage rate is not required], it will be allowed to pay the wages and benefits on such Developer Work specified in [the 2005 CBA]." However, that side letter between Employer and Employees' union did not amend Employer's contract with SDGE that required Employer to pay Employees prevailing wages. Furthermore, a prefatory clause of that side letter states that the majority of Employer's work in San Diego County is done on a prevailing wage basis for SDGE as ordered by the PUC. Employer and Employees' union presumably did not intend the side letter to apply to work done for SDGE (even though the PUC's prevailing wage directive was annulled in a court decision and therefore apparently no longer applies to energy utility construction work performed for SDGE). (See Southern California Edison Co. v. Public Utilities Com. (2006) 140 Cal.App.4th 1085, 1104-1107.) Likewise, another prefatory provision merely states the parties' belief that the 2005 CBA "will meet or exceed the prevailing wage rate for the type of work which [Employer] performs." Absent any express provision stating otherwise, we conclude the side letter does not amend the 2005 CBA's provisions requiring Employer to pay minimum rates of pay, and does not amend Employer's contract with SDGE requiring Employer to pay Employees prevailing wages. Accordingly, the side letter does not preclude Employees from asserting their second cause of action independent of the 2005 CBA.
As alleged intended third party beneficiaries of Employer's contract with SDGE, Employees may allege a cause of action for Employer's breach of that contract for failure to pay them prevailing wages. "If the contractor and the public agency [or other party] agree in their contract that employees of contractors will be paid the prevailing wage,... a breach of contract action based on third party beneficiary principles is available to the employee.... Since employees... are the intended beneficiaries of this provision, they are third party beneficiaries of the contract between the public agency [or other party] and the contractor. We therefore find no obstacle to the employee's common-law suit against the contractor on a third party beneficiary theory. [Citation.]" (Tippett v. Terich (1995) 37 Cal.App.4th 1517, 1533, disapproved on another ground in Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 171; see also Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 774, fn. 13, 777; Department of Industrial Relations v. Fidelity Roof Co. (1997) 60 Cal.App.4th 411, 426; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971.) There is no logical reason to preclude an employee from alleging, as an intended third party beneficiary, a common law breach of contract cause of action for an employer's failure to pay prevailing wages pursuant to a contract with another party if the underlying circumstances do not also involve a statutory (or administrative regulation) prevailing wage claim based on public works. Likewise, the existence of a CBA does not preclude an employee's breach of contract cause of action based on an employer's independent agreement with another party if, as in this case, the prevailing wage required by that independent agreement does not conflict with the CBA.
Employer argues that it could not pay a prevailing wage pursuant to the SDGE contract if that wage were less than the minimum rates of pay required by the 2003 and 2005 CBAs. However, that hypothetical situation is irrelevant to the allegations in Employees' second cause of action. In general, there is no reason two independent contracts cannot mutually coexist and their obligations be enforced if their provisions do not directly conflict. Here, because the CBAs provide for minimum rates of pay, any greater prevailing wage provided for in an independent contract (e.g., the SDGE contract) does not conflict with the wage provisions of the CBAs. Employer's cited hypothetical situation does not persuade us to reach a contrary conclusion.
III
Third Cause of Action
Employer contends the trial court erred by denying its motion to compel arbitration of the third cause of action for unpaid overtime or other hours worked because that cause of action involves the rate of pay due Employees under the CBAs and is therefore subject to arbitration under the CBAs despite statutory provisions regarding payment of overtime or other hours worked.
The third cause of action alleged Employer did not pay Employees for all hours worked. It alleged Employees were not paid for all of the time Employer required them to drive or travel in Employer's vehicles to and from jobsites and/or to load and unload Employer's vehicles. The crux of the third cause of action was that Employees were not paid for all of the hours they worked for Employer, regardless of whether those additional hours constituted regular or overtime hours. It challenges only the number of hours for which Employees were paid for work and not the rate of pay applicable to those hours. The applicable rate of pay is only tangentially relevant in calculating the proper amount of compensation due Employees in the event it is found that they worked hours for which they were not paid. We reject Employer's assertion that the third cause of action involves an interpretation of the CBAs regarding the proper rates of pay due Employees.
We further conclude the leading case cited by Employees in opposing Employer's motion to compel arbitration is apposite to this case and provides support for our conclusion that Employees' third cause of action does not require or involve an interpretation of the CBAs because it challenges the number of hours for which they were paid and not the applicable rates of pay for those hours. In Burnside v. Kiewet Pacific Corp. (9th Cir. 2007) 491 F.3d 1053 (Burnside), the court concluded: "(1) the right to be compensated for employer-mandated travel time is a right conferred by [California] state law, independent of the CBAs; and (2) the matter at hand can be resolved without interpreting the CBAs." (Id. at p. 1058.) Burnside noted that work performed by construction workers is covered by Industrial Welfare Commission (IWC) California Industrial Commission Wage Order 16-2001 (Cal. Code Regs., tit. 8, § 11160), which defines hours worked as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." (Burnside, at p. 1062; Cal. Code Regs., tit. 8, § 11160(2)(J).) An employee's right to compensation for compulsory travel time may be eliminated only if a CBA includes clear language to that effect. (Burnside, at p. 1063.)
Burnside stated:
"The right [to travel time pay] arises from state law, not from the CBA, and is vested in the employees directly, not through the medium of the CBA. And if the CBA says nothing at all about pay for travel time, the right to be paid for that time still exists. The right is therefore one that came into existence entirely independently of the CBA, and that remains in existence, independently of the CBA, unless a condition subsequent-waiver by the CBA-occurs." (Burnside, supra, 491 F.3d at p. 1064.)
Accordingly, Burnside concluded the employees' claims were not preempted by section 301 of the LMRA. (Burnside, supra, 491 F.3d at pp. 1055, 1070.) It further concluded their claims were not substantially dependent on an interpretation of the CBAs, but required only a reference to the CBAs' wage rates for calculating the amount of damages if the employer were found liable for nonpayment for hours worked by the employees. (Id. at pp. 1071, 1073-1074.)
The instant case involves issues similar to those addressed in Burnside. Like Burnside, this case involves a claim by Employees that they were not paid for Employer-required travel time as required by state law. Like Burnside, Employees do not dispute their rates of pay or make any other claim under the CBAs. Burnside concluded the travel time claims were not substantially dependent on an interpretation of the CBAs. Based on our review of Burnside's detailed analysis, we agree with its reasoning and apply its conclusions to the circumstances in this case. We reject Employer's argument that Burnside was wrongly decided and we should reach a different conclusion. Employees' third cause of action does not challenge the rates of pay set forth in the CBAs, but rather the number of hours for which they were paid by Employer for hours worked. To the extent the CBAs' minimum rates of pay or Employees' second cause of action for prevailing wages are relevant to the third cause of action, those rates affect only the simple computation of damages in the event Employees prove Employer is liable for nonpayment of wages for all hours they worked for Employer. We conclude the third cause of action is independent of, and not substantially dependent on an interpretation of, the CBAs. Therefore, as we concluded regarding the second cause of action, the grievance and arbitration provisions of the CBAs do not apply to require arbitration of the third cause of action.
We likewise reject Employer's argument that we should instead follow the holding of Firestone v. Southern California Gas Co. (9th Cir. 2000) 219 F.3d 1063. That case is factually inapposite and we decline to apply its holding to the circumstances in this case.
Employer also argues Labor Code section 514 bars Employees' third cause of action because the CBAs' provisions satisfy that statute's requirements for exemptions from the general requirements of Labor Code section 510. Labor Code section 510, subdivision (a), generally sets forth the rule that work in excess of eight hours per day or in excess of 40 hours per week is considered overtime work for which an employee must be compensated at a rate of no less than one and one-half the regular rate of pay. However, those Labor Code section 510 requirements do not apply "to the payment of overtime compensation to an employee working pursuant to any of the following: [¶]... [¶] (2) An alternative workweek schedule adopted pursuant to a collective bargaining agreement pursuant to [Labor Code] Section 514...." Labor Code section 514 provides: "[Labor Code] Sections 510 and 511 do not apply to an employee covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of not less than 30 percent more than the state minimum wage."
Construing Labor Code section 510 and 514 together, we conclude, as Employees assert, Labor Code section 514 simply allows for the adoption of alternative workweeks for purposes of paying overtime if the applicable CBA meets the requirements of Labor Code section 514. However, alternative workweeks are not the crux of the third cause of action. Furthermore, neither Labor Code section 510 nor section 514 governs or otherwise affects Employer's duty under state law to pay Employees compensation for all hours worked for Employer, the crux of the third cause of action. (See, e.g., IWC Wage Order 16-2001; Cal. Code Regs., tit. 8, § 11160(2)(J); Lab. Code, § 1194, subd. (a).) The applicable rates of pay (whether regular or overtime and whether under Lab. Code, § 510 or the CBAs) are relevant to the third cause of action only in calculating damages in the event Employees prove Employer has not paid them for all of the hours they worked (e.g., hours spent during Employer-required travel to and from jobsites and/or loading and unloading of Employer vehicles). Accordingly, Employer does not persuade us application of Labor Code section 514 requires arbitration of the third cause of action pursuant to the CBAs. (Cf. Gregory v. SCIE, LLC (9th Cir. 2003) 317 F.3d 1050, 1053.)
Labor Code section 1194, subdivision (a), provides: "Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation...."
We also note neither the 2003 CBA nor the 2005 CBA contains any provisions expressly addressing the specific issues raised in the third cause of action (i.e., Employer-required work driving or traveling to and from jobsites and loading and unloading of Employer's vehicles). Likewise, neither CBA contains any language "clearly and unmistakably" requiring Employees to arbitrate the claim alleged in the third cause of action. (See, e.g., 14 Penn Plaza LLC v. Pyett (2009) ___ U.S. ___ [129 S.Ct. 1456, 1474]; Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 82.)
DISPOSITION
The order is affirmed. Employees are entitled to costs on appeal.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.