Jose Duran, et al. v. Blue’s Roofing Co., et al.

6 The FAC states that Plaintiff worked for Defendant from July 2022 to June 2025. (FAC, p. 2:13-14.) The court notes that in the Declaration of Leo Ibarra In Support of Defendant’s Motion to Dismiss Claims, or In the Alternative, Compel Arbitration and Stay Action (“Ibarra Decl.”), declarant states that Plaintiff is still employed at Blue’s Roofing Co. (Ibarra Decl., p. 3:5-6.) The court does not make a factual determination on this point and uses past tense only for consistency throughout the order.

both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate. [Citations.] The threshold question requires a response because if such an agreement exists, then the court is statutorily required to order the matter to arbitration.” (Fleming v. Oliphant Financial, LLC (2023) 88 Cal.App.5th 13, 19 [internal quotation marks omitted].) In determining the rights of parties to enforce an arbitration agreement within the scope of the Federal Arbitration Act (“FAA”), “courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v.

Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) But the FAA’s policy favoring arbitration ... is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts. Or in another formulation: The policy is to make arbitration agreements as enforceable as other contracts, but not more so. Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind. (Morgan v.

Sundance, Inc. (2022) 596 U.S. 411, 418 internal citations and quotations omitted.) The moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. (See Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396 [under both federal and state law, “the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate”]; Rosenthal v. Great Western Fin’l Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal) [moving party’s burden is a preponderance of evidence]; see Gamboa v.

Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165-166 [normal formalities regarding document authentication are not required].) The burden then shifts to the resisting party to prove a ground for denial. (Rosenthal, supra, 14 Cal.4th at p. 413.) b.

Discussion

To establish the existence of an arbitration agreement, Defendant submits the declaration of Leo Ibarra (“Ibarra”), President of Blue’s Roofing Co. (Ibarra Decl., p. 2:9-10.) Ibarra states that Blue’s Roofing Co. is a member of the Associated Roofing Contractors of the Bay Area Counties, Inc. (“the Association”) and subject to its collective bargaining agreement with Local Union No. 95, United Union of Roofers, Waterproofers, and Allied Workers (“the Union”). (Ibarra Decl., pp. 2:4-15, 6:23-27.)

Ibarra further states that Plaintiff is a member of the Union and subject to the provisions of the collective bargaining agreement entitled “Working Agreement.” (Id., at pp. 2:23-27, 3:3-4, Ex. B.) The Working Agreement which was in effect at the time of Ibarra’s employment and continues to be in effect is attached to the declaration as well as letter from the Union indicating that Plaintiff was a member of the Union. (Ibarra Decl., Exs. A-B.) Defendant contends that the Working Agreement contains an established grievance and arbitration procedure for when employment disputes arise, and that Plaintiff did not follow those procedures. (Motion, p. 14:9-10; Ibarra Decl., p. 3:20-25.) “‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.

Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.’” (Flores v. Nature’s Best Distribution, LLC (2016) 7 Cal.App.5th 1, 8-9, quoting Rosenthal, supra, 14 Cal.4th at p. 413.) Defendant has established that Plaintiff was a member

of the Union that had collectively bargained a Working Agreement with Defendant (Ibarra Decl. Ex. B.) and that at the time of Plaintiff’s employment, there was a Working Agreement with an arbitration provision. (Ibarra Decl. Ex. A.) Plaintiff argues that Defendant did not meet its burden to prove that there was an enforceable agreement to arbitrate because the terms of the Working Agreement are contradictory as to arbitration and grievance procedures, thus making the agreement unenforceable. The relevant provisions of the Working Agreement are in Article XXVIII, entitled “Joint Labor Relations Committee,” in sections 1 and 3: Section 1.

There is hereby established a Joint Labor Relations Committee to be composed of two (2) representatives of the Union and two (2) representatives of the Employers which shall hold regular meetings, and special meetings as circumstances may warrant. All matters of controversy or dispute arising out of the operation of this Agreement or affecting relations between the parties hereto which cannot be settled by the duly authorized representative of the Union and the Employer directly involved shall be referred to the Joint Labor Relations Committee which shall meet within forty-eight (48) hours.

All disputes or controversies must be brought to the attention of the Individual Employer within fifteen (15) calendar days of when the dispute or controversy arose, unless the dispute or controversy was not known to the employee or the Union, in which case the dispute or controversy must be brought to the attention of the Individual Employer within fifteen (15) calendar days of when the employee or Union should have known of the dispute or controversy. This time limit shall be enforced by the Committee and the Impartial Arbitrator.

Should the Committee be unable to adjust or settle any such controversy or dispute by conference or negotiation, such matters shall be referred to one representative chosen by the Union and one representative chosen by the Association and Impartial Arbitrator for final and binding arbitration. A two-third (2/3) vote of the two representatives and the arbitrator shall be final and binding upon the Association, all Individual Employers and the Union and the employees. The cost of the arbitration shall be shared equally by the Union and the Association. [Section 2 omitted] Section 3.

ARBITRATION OF WAGE AND HOUR CLAIMS AND THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT PRECLUSION. In addition to claims for meal period, rest period and heat recovery violations, the following claims and claims for associated penalties shall be resolved exclusively through the binding arbitration before an impartial arbitrator as set forth in this paragraph, and shall not be brought in a court of law or before any administrative agency such as the California Labor Commissioner: all claims arising under the Fair Labor Standards Act, the California Labor Code and the Industrial Welfare Commission Orders (e.g.

Wage Order 16) and all derivative claims arising under California Business & Professions Code section 17200, et seq. for: unpaid wages (e.g. claims for hours worked off the clock, overtime wages, minimum wages, incorrect rate(s) of pay and travel time); heat illness recovery violations, waiting time penalties; reimbursement of expenses (e.g. tools, cell phone charges, mileage and subsistence); recordkeeping of personnel files, time records and payroll records; violation of Labor Code sections 212 and 226, and all similar claims arising under applicable local law.

It is mutually agreed that this Agreement prohibits any and all violations of the sections of the California Labor Code identified in Labor Code 2699.5 and 2699(f) as well as any others that are redressable pursuant to the Labor Code Private Attorneys General Act of 2004 (“PAGA”), and that such claims shall be resolved exclusively through binding arbitration before an impartial arbitrator and not in court of law or any administrative agency, as set forth in this Section. Pursuant to California Labor Code Section 2699.6, the Parties hereby expressly and unambiguously waive the provisions of PAGA, Labor Code Section 2698, et seq., and agree that none of the provisions of that statute apply to any of the employees covered by the Agreement.

This Agreement expressly authorizes the impartial arbitrator to award any and all remedies otherwise available under the California Labor Code, except the award of penalties under PAGA that would be payable to the Labor and Workforce Development Agency. Any grievance alleging a violation of PAGA shall be resolved on an individual employee basis only and any claim under PAGA to recover civil penalties or other individual relief must be arbitrated under this Agreement. The Parties also agree that any non-individual claims will be stayed and the employee will not pursue any such claims in court until after the impartial arbitrator, and not the court, issues a final and written determination as to the employee’s status an [sic] ‘aggrieved employee.’ The impartial arbitrator is without authority to preside over any PAGA claim on behalf of any other person or joined by or consolidated with any other person’s PAGA claim.

This agreement to exclude PAGA actions will be severable from this Agreement if there is a final judicial determination that it is invalid, unenforceable, unconscionable, void or voidable. In such case, the PAGA action must be litigated in a civil court of competent jurisdiction not in arbitration but the portion of the agreement to exclude PAGA actions that is enforceable will be enforced in arbitration. For rest period and meal period claims, the time limit for bringing such claims is the time limit for bringing grievances under this Article XXVIII.

For all other claims covered by this section, the intent of the parties is to use the shortest time limit permitted by applicable law, as determined by the arbitrator. All substantive and procedural rights applicable to mandatory arbitration of employment claims shall be observed (e.g. the right to more than minimal discovery, payment of costs by the employer, a written award, etc.). The impartial arbitrator shall manage all such claims with due regard for the rights of the employees and the inherent advantages of arbitration over court proceedings.

The arbitrator shall be authorized to award any and all remedies otherwise available by law. Statutory claims described above (other than meal period and rest period claims) shall be initiated by an aggrieved employee by written notice within the statute of limitations period to the Individual Employer with a copy provided to the Union. Once a grievance is filed for a statutory claim(s) described above, the Union, the aggrieved employee, and the Individual Employer shall meet within thirty (30) calendar days, or other time as mutually agreed upon, to discuss and attempt to resolve the grievance.

Should the grievance not be satisfactorily resolved to the satisfaction of the aggrieved employee within the foregoing time

frame, the aggrieved employee may proceed directly to arbitration under the procedures set forth in this Article. The aggrieved employee and Individual Employer shall request a panel of five (5) labor arbitrators from the Federal Mediation and Conciliation Service. The arbitrators shall be members of the National Academy of Arbitrators and located in Northern California. The aggrieved employee and Individual Employer will select an impartial arbitrator from the panel using an alternative striking method with the party making the first strike determined by the flip of a coin.

The Individual Employer shall be responsible for paying the cost of arbitration, including the arbitrator’s fee. The Impartial arbitrator shall have the authority to consolidate individual statutory claims for hearing but shall not have the authority to fashion a proceeding as a class, collective or representative action, to award relief to a group or class of employees in one grievance or arbitration proceeding, and under no circumstances may the impartial arbitrator hear or preside over any class, collective, or other claim joined by or consolidated with another person’s or entity’s claim, unless all parties agree in writing.

The impartial arbitrator shall have the authority to apply the applicable Federal, state or local law to the statutory claim(s), but shall be prohibited from interpreting this Agreement. A decision of the impartial arbitrator shall be final and binding upon the aggrieved employee and the Individual Employer. If the impartial arbitrator determines that the resolution of a statutory claim requires an interpretation of this Agreement, the impartial arbitrator shall certify a question to the Union and Employer seeking an interpretation of the relevant Section(s) of this Agreement.

However, the preceding sentence does not apply to the agreement to exclude PAGA actions and whether the arbitrator may preside over any class, collective, or other claim joined by or consolidated with another person’s or entity’s claim. The Union and the Employer shall provide a response to the certified question within fourteen (14) days of receipt from the impartial arbitrator. If the Union and the Employer cannot mutually agree upon the interpretation of the relevant Section(s) for the response to the certified question, the certified question shall be submitted to the panel of Arbitrator listed in Section 3 of this Article for a decision.

If a court of competent jurisdiction finds any term or clause in this Section to be invalid, unenforceable, or illegal, such a term or clause may be revised to the extent required according to the opinion of the court to render this Section enforceable or valid so as to preserve the agreement and intent to the fullest possible extent. This Section shall apply to any representative PAGA claims, class, and/or individual claims that arise or are pending during the term of the Parties’ current collective bargaining agreement, regardless of when they were filed with any court or administrative agency. (Ibarra Decl., Ex.

A.) Section 1 and 3 of the Working Agreement outline two different procedures and remedies but Section 3 establishes a more detailed procedure specifically for the statutory claims listed. The plain language of the Working Agreement establishes that Plaintiff agreed to arbitrate the statutory claims in the FAC. The court notes Plaintiff’s argument that Section 3

exempts meal and rest breaks, but the language of the Agreement does so only with respect to the “time limit for bringing such claims,” (Ibarra Decl., Ex. A), and the introductory language of Section 3 clearly states an intent to arbitrate meal and rest break claims in accordance with the procedure of Section 3: “In addition to claims for meal period, rest period and heat recovery violations, the following claims and claims for associated penalties shall be resolved exclusively through ... binding arbitration before an impartial arbitrator...” (Ibarra Decl., Ex.

A.) The record does not support Plaintiff’s argument that the Working Agreement establishes two mutually incompatible procedures or that the Agreement does not sufficiently identify which disputes would be subject to arbitration and which would not, making Flores v. Nature’s Best Distribution, LLC, (2016) 7 Cal.App.5th 1 (Flores) inapposite. In Flores, the plaintiff signed an agreement in which she agreed to “submit all legal, equitable and administrative disputes to the American Arbitration Association for mediation and binding arbitration...except those actually covered by the grievance and arbitration procedure in the Agreement between Nature’s Best and Teamster’s Local 692.” (Flores, supra, 7 Cal.App.5th at p. 4.)

The court held that this language did not sufficiently define which disputes would be subject to which procedure. Here, unlike Flores, the agreement lists the statutes and types of claims subject to arbitration. As such, Defendant has shown that Plaintiff was subject to an enforceable agreement to arbitrate the individual claims alleged in the FAC. The Working Agreement precludes Plaintiff from pursuing PAGA or class claims. Labor Code section 2699.6 establishes that employees in the construction industry can waive their right to pursue PAGA claims through collective bargaining if the collective bargaining agreement meets certain statutory requirements (Lab.

Code, § 2699.6, subd. (a).) Plaintiff does not argue that the Working Agreement does not comply with statutory requirements, but rather that the arbitration agreement as a whole evidences a lack of mutual assent and thus is unenforceable as to PAGA and class action waivers. The Working Agreement contains clear language waiving PAGA, and as explained above, the court holds that Plaintiff validly agreed to arbitrate his claims. As such, Plaintiff validly agreed to waive PAGA claims in accordance with Labor Code section 2699.6 subdivision (a).

In addition, Plaintiff agreed to waive class claims. Section 3 of the Working Agreement applies to “any representative PAGA claims, class, and/or individual claims that arise or are pending during the term of the Parties’ current collective bargaining agreement[.]” (Ibarra Decl., Ex. A.) The same section also explicitly bars class arbitration: “under no circumstances may the impartial arbitrator hear or preside over any class, collective, or other claim joined by or consolidated with another person's or entity's claim, unless all parties agree in writing.” (Ibarra Decl., Ex.

A.) Plaintiff agreed to arbitrate the claims he alleged in his FAC, and in that arbitration agreement, Plaintiff agreed not to arbitrate PAGA or class claims. Defendant’s motion to dismiss Plaintiff’s PAGA and class claims is GRANTED. Plaintiff argues that the arbitration agreement does not comply with the waiver provisions of Labor Code section 512 and is unenforceable as to meal break claims. Labor Code section 512 states that employees in the construction industry can waive their right to pursue meal break claims outside arbitration if the agreement complies with the statutory requirements. (Lab.

Code, § 512, subds. (e), (f).) Plaintiff argues that the Working Agreement does not comply with the statutory requirement that a collective bargaining agreement expressly provide for meal periods and provide for final and binding arbitration of meal period claims. However, Article X of the Working Agreement states the length of the work day and provides for meal period breaks. (Ibarra Decl., Ex. A.) Additionally, as explained above, the Working Agreement clearly states that meal and rest break provisions are subject to the arbitration procedures described in Section 3; the exemption for those claims applies only to the time period for pursuing a grievance and does not exempt meal period claims from the

arbitration procedure as a whole. (Ibarra Decl., Ex. A.) The Working Agreement complies with Labor Code section 512 and is enforceable. Defendant argues that Plaintiff’s individual claims should be dismissed for his failure to exhaust grievance procedures. Generally, “a party must exhaust administrative remedies before resorting to the courts.” (Coachella Valley Mosquito & Vector Control Dist. v. Cal. Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) “The failure to arbitrate in accordance with the grievance procedures in a collective bargaining agreement is analogous to the failure to exhaust administrative remedies.” (Assn. for Los Angeles Deputy Sheriffs v.

County of Los Angeles (2019) 42 Cal.App.5th 918, 927, internal citation and quotations omitted.) Section 1 of Article XXVIII of the Working Agreement provides for the following grievance and arbitration exhaustion procedure: All matters of controversy or dispute arising out of the operation of this Agreement or affecting relations between the parties hereto which cannot be settled by the duly authorized representative of the Union and the Employer directly involved shall be referred to the Joint Labor Relations Committee which shall meet within forty-eight (48) hours.

All disputes or controversies must be brought to the attention of the Individual Employer within fifteen (15) calendar days of when the dispute or controversy arose, unless the dispute or controversy was not known to the employee or the Union, in which case the dispute or controversy must be brought to the attention of the Individual Employer within fifteen (15) calendar days of when the employee or Union should have known of the dispute or controversy. This time limit shall be enforced by the Committee and the Impartial Arbitrator.

Should the Committee be unable to adjust or settle any such controversy or dispute by conference or negotiation, such matters shall be referred to one representative chosen by the Union and one representative chosen by the Association and Impartial Arbitrator for final and binding arbitration. A two-third (2/3) vote of the two representatives and the arbitrator shall be final and binding upon the Association, all Individual Employers and the Union and the employees. (Ibarra Decl., Ex. A.) In Section 3 of Article XXVIII, the grievance procedure for statutory claims is described as follows: Statutory claims described above (other than meal period and rest period claims) shall be initiated by an aggrieved employee by written notice within the statute of limitations period to the Individual Employer with a copy provided to the Union.

Once a grievance is filed for a statutory claim(s) described above, the Union, the aggrieved employee, and the Individual Employer shall meet within thirty (30) calendar days, or other time as mutually agreed upon, to discuss and attempt to resolve the grievance. Should the grievance not be satisfactorily resolved to the satisfaction of the aggrieved employee within the foregoing time frame, the aggrieved employee may proceed directly to arbitration under the procedures set forth in this Article. (Ibarra Decl., Ex.

A.) The Working Agreement suggests that parties intended to have an arbitrator or the Joint Labor Relations Committee decide the timeliness of claims, not a court. For disputes subject to the procedure of Section 1, the Working Agreement expressly delegates enforcement of

timeliness to entities other than the court: “the dispute or controversy must be brought to the attention of the Individual Employer within fifteen (15) calendar days of when the employee or Union should have known of the dispute or controversy. This time limit shall be enforced by the Committee and the Impartial Arbitrator.” (Ibarra Decl., Ex. A, italics added.) In Section 3, the Working Agreement states that “[f]or rest period and meal period claims, the time limit for bringing such claims is the time limit for bringing grievances under this Article XXVIII.

For all other claims covered by this section, the intent of the parties is to use the shortest time limit permitted by applicable law, as determined by the arbitrator.” (Ibarra Decl., Ex. A, italics added.) Accordingly, the decision regarding whether the individual claims should be dismissed belongs to entities other than the court. The court DENIES Defendant’s motion to dismiss Plaintiff’s individual claims. Defendant’s motion to compel arbitration and the request for stay is GRANTED. III. CONCLUSION Defendant’s motion to dismiss all PAGA and class claims is GRANTED, the motion to dismiss individual claims is DENIED, and the motion to compel arbitration and stay action is GRANTED with respect to Plaintiff’s individual claims.

The Court will prepare the final order. ****

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