Filed 8/13/18

                             CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION TWO


KRISTINA EHRET et al.,

        Plaintiffs and Appellants,                E067575

v.                                                (Super.Ct.No. RIC1407372)

WINCO FOODS, LLC et al.,                          OPINION

        Defendants and Respondents.




        APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.

Affirmed.

        Makarem & Associates, Ronald W. Makarem, and Jean-Paul Le Clercq for

Plaintiffs and Appellants.

        Seyfarth Shaw, Nick C. Geannacopulos, Eden Anderson, Kristina M. Launey, and

Simon L. Yang for Defendants and Respondents.
          Plaintiffs Kristina Parker 1 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.


          1   During these proceedings, Kristina Parker married and became Kristina
Ehret. In the caption, we use her current true name. Throughout the text, however, to
maintain consistency with the record, we refer to her as Parker.



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                                             I

                              FACTUAL 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.)

       2      There was some evidence that the members of the Association had not
authorized the Association to represent them. WinCo argued below that this was
contradicted by the Employees’ admissions in their depositions. In this appeal, the
Employees concede that they “worked under” the Agreement.



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      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

                                            II

                              PROCEDURAL 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




      3        There was some evidence of instances in which the Employees worked
more than six hours but were denied meal breaks. Again, WinCo argued below that this
was contradicted by the Employees’ admissions in their depositions. The Employees do
not rely on this evidence in this appeal.



                                            4
collective bargaining agreement.” Accordingly, it entered judgment against the

Employees and in favor of WinCo.

                                             III

             THE 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



                                              5
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; accord, Livadas v. Bradshaw (1994) 512 U.S. 107, 125;

California State Employees’ Assn. v. Public Employment Relations Bd. (1996) 51

Cal.App.4th 923, 938.)

       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.) 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;

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; Lujan v. Southern California Gas Co.



                                              6
(2002) 96 Cal.App.4th 1200, 1211.) 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, an

employee sued his employer, alleging, among other things, national origin discrimination.

(Id. at p. 432.) 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.) 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.)




                                              7
       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.) 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.) “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, fn. omitted.) For an arbitration clause to apply clearly and unmistakably to a

discrimination claim, “[a] simple agreement not to engage in acts violative of a particular

statute will not suffice; the agreement must establish the intent of the parties to

incorporate ‘in their entirety’ the discrimination statutes. [Citation.] Compliance with a

particular statute must be an express contractual commitment in the collective bargaining

agreement. [Citations.]” (Id. at pp. 435-436; accord, Vasserman v. Henry Mayo Newhall

Memorial Hospital (2017) 8 Cal.App.5th 236, 246-250; Mendez v. Mid-Wilshire Health

Care Center (2013) 220 Cal.App.4th 534, 543-547; Deschene v. Pinole Point Steel Co.

(1999) 76 Cal.App.4th 33, 48, fn. 9.)

       Arbitration cases, however, are distinguishable. They pose the threshold question

of whether the statutory right at issue 4 is incorporated into the collective bargaining

       4        WinCo asserts that Vasquez concerned a waiver of the constitutional right
to a jury trial. Not so. Vasquez specifically described the waiver at issue as a “waiver of
employees’ statutory rights to a judicial forum for claims of employment discrimination
. . . .” (Vasquez v. Superior Court, supra, 80 Cal.App.4th at p. 434, italics added.)



                                              8
agreement; only then does an agreement to arbitrate claims arising under the collective

bargaining agreement extend to a claim for a violation of the statutory right. Therefore, it

must be clear and unmistakable that the statutory right itself is part of the collective

bargaining agreement. Here, there is no similar reason to require that the statutory right

must be stated in the collective bargaining agreement before it can be waived.

          Only one California case has provided any meaningful analysis of the clear and

unmistakable standard outside the arbitration context: Choate v. Celite Corporation

(2013) 215 Cal.App.4th 1460 (Choate). The Employees rely on it heavily; they assert

that it is “virtually directly on point with this [a]ppeal.” We therefore discuss it in some

detail.

          Choate involved Labor Code sections 201 and 227.3. These statutes, when read

together, require an employer to pay an employee for all vested vacation time

immediately upon termination, “[u]nless otherwise provided by a collective-bargaining

agreement . . . .” (Choate v. Celite Corporation, supra, 215 Cal.App.4th at pp. 1462-

1464.)

          The court stated the issue before it as follows: “The parties disagree on what our

Legislature meant when it required collective bargaining agreements to ‘otherwise

provide[]’: [The employer] contends that a waiver of the right to payment under section

227.3 may be inferred from the totality of the circumstances, while [the employees]

defend the trial court’s ruling that any waiver must be clearly and unmistakably stated in




                                               9
the collective bargaining agreement.” (Choate v. Celite Corporation, supra, 215

Cal.App.4th at p. 1465.)

       It concluded that a waiver of rights under Labor Code section 227.3 must be clear

and unmistakable, for three reasons. First, it felt that the employer’s proposed totality of

the circumstances test would lead to absurd results. (Choate v. Celite Corporation,

supra, 215 Cal.App.4th at pp. 1465-1466.) Second, courts should construe ambiguities in

labor statutes in favor of employees. (Id. at p. 1466.) And third, “[w]e try to harmonize

state and federal law. [Citation.] . . . [W]aiver of federal statutory rights must be clear

and unambiguous. [Citation.] This counsels in favor of requiring the same degree of

clarity for waivers of state statutory rights.” (Ibid.)

       The court went on to hold that, in the case before it, there was no clear and

unmistakable waiver. It explained: “To be clear and unmistakable, a waiver must do

more than speak in ‘[b]road, general language.’ [Citation.] It must be specific, and

mention either the statutory protection being waived or, at a minimum, the statute itself.

[Citation.] The Agreements here neither mention pro rata vacation pay nor cite section

227.3.” (Choate v. Celite Corporation, supra, 215 Cal.App.4th at p. 1467, italics added.)

       WinCo argues that Choate merely decided an issue of the statutory interpretation

of Labor Code section 227.3. Given the court’s statement that it was attempting to

harmonize state and federal law, we disagree. Clearly it meant that the standard for a

waiver under the “otherwise provided” wording of Labor Code section 227.3 is the same

as the federal clear and unmistakable standard for a waiver of any statutory right.



                                              10
       The Employees, on the other hand, argue that Choate stands for the proposition

that, for a waiver of a statutory right to be clear and unmistakable, the waiver must either

(1) cite the applicable statute (here, Labor Code section 512) or (2) specify the content of

the statutory right (here, that employees working shifts of more than five hours but not

more than six hours are entitled to a meal break). Again, we disagree.

       Choate indicated that mentioning “the statutory protection being waived” and

mentioning “the statute itself” are two different things. In the case before it, it equated

mentioning the statute itself with “cit[ing] [Labor Code] section 227.3.” Here,

mentioning the statute itself would mean citing Labor Code section 512. The Agreement

did not do so.

       But Choate then equated mentioning the statutory protection being waived with

“mention[ing] pro rata vacation pay.” Here, mentioning the statutory protection being

waived would mean discussing meal breaks. This the Agreement did — and very

explicitly, too. It expressly stated that “when a work period of not more than 6 hours will

complete the day[’]s work, a meal period is not required.” This is flatly irreconcilable

with the provision of Labor Code section 512, subdivision (a) that “[a]n 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 . . . .” Thus, it

constitutes a clear and unmistakable waiver of that provision, even without citing it.

       The Employees also argue that the waiver is not clear and unmistakable for two

additional reasons.



                                             11
       First, they argue that “[a] ‘waiver’ cannot be ‘clearly and unmistakably’ be made

unless the word ‘waiver,’ or ‘waived,’ or ‘waiving,’ is used.” Not so. For example, in

International Broth. of Elec. Workers, Local 803, AFL-CIO v. N.L.R.B. (3d Cir. 1987)

826 F.2d 1283 (IBEW), the relevant collective bargaining agreement provided, “The

Brotherhood and its members agree that during the term of this agreement there shall be

no strikes or walkouts by the Brotherhood or its members . . . .” (Id. at p. 1285.) This

provision did not use the word “waiver.” Nevertheless, the appellate court, applying the

clear and unmistakable standard (id. at p. 1287), upheld a finding that it constituted a

waiver of the statutory right to engage in a sympathy strike. (Id. at pp. 1295-1298.) 5

       Second, they argue that the waiver was ambiguous because it also stated, “It is

WinCo Foods policy not to mutually agree with employees to waive their lunch period.” 6

We perceive no such ambiguity. This clearly refers to a waiver by individual employees

of meal breaks provided in the Agreement. It does not apply to the collective waiver in



       5        Incidentally, IBEW further supports our holding that a waiver in a collective
bargaining agreement need not specify the statutory right being waived and need not cite
the statute, as long as it is irreconcilable with the statutory right.
       6       In response, WinCo argues that, if the Employees’ state-law claims require
us to construe the Agreement, they are preempted by federal law. Federal labor law
preempts a state-law claim that is either “founded directly on rights created by collective-
bargaining agreements” or “‘substantially dependent on analysis of a collective-
bargaining agreement.’” (Caterpillar Inc. v. Williams (1987) 482 U.S. 386, 394.)
However, it does not preempt a state-law claim merely because a party raises a defense
that requires a court to interpret or apply a collective-bargaining agreement. (Id. at
p. 398.) Here, the Employees’ claims do not require an analysis of the Agreement;
rather, WinCo has raised the waiver in the Agreement as a defense.



                                             12
the Agreement of meal breaks otherwise provided under Labor Code section 512,

subdivision (a).

       In sum, then, we uphold the trial court’s ruling that, as a matter of law, the

Agreement waived the Employees’ right under Labor Code section 512, subdivision (a)

to a meal break when working more than five hours but not more than six hours.

                                             IV

                                      DISPOSITION

       The judgment is affirmed. In the interest of justice, each side shall bear its own

costs on appeal.

       CERTIFIED FOR PUBLICATION
                                                                        RAMIREZ
                                                                                        P. J.


       We concur:

       McKINSTER
                           J.

       MILLER
                           J.




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