Filed 10/17/17
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION THREE


GEORGE MELENDEZ et al.,
        Plaintiffs and Respondents,
                                                       A149482
v.
SAN FRANCISCO BASEBALL                                 (City & County of San Francisco
ASSOCIATES LLC,                                        Super. Ct. Nos. CGC-13-530672,
                                                       CGC-15-549146)
        Defendant and Appellant.


        Defendant San Francisco Baseball Associates LLC (the Giants)1 appeals from the
denial of its motion to compel arbitration of the wage and hour claims of plaintiff George
Melendez.2 Plaintiff, a security guard employed by the Giants at AT&T Park, contends
that he and other security guards were employed “intermittingly” for specific job
assignments (baseball games or other events) and were discharged “at the end of a
homestand, at the end of a baseball season, at the end of an inter-season event like a fan
fest, college football game, a concert, a series of shows, or other events,” and that
therefore under Labor Code section 201 were entitled to but did not receive immediate

1
 The Giants were erroneously sued as “San Francisco Giants Baseball Club LLC.” The
correct entity was originally San Francisco Baseball Associates LP, which has
subsequently undergone restructuring and is now the San Francisco Baseball Associates
LLC.
2
  Separate actions were brought by plaintiffs Wilfredo Rivas and George Melendez.
Rivas having been terminated by the Giants for misconduct, the parties stipulated that the
actions would be consolidated and that Melendez would be designated as the class
representative of the putative class action. Melendez is the employee whose situation is
addressed in the briefing in the trial court and this court. The claims of the two plaintiffs
are identical.


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payment of their final wages upon each such “discharge.” The Giants contend that
payment immediately after each such event is not required because under the terms of the
collective bargaining agreement (CBA) between the Giants and the Service Employees
International Union, United Service Workers West of San Francisco (the union),
Melendez and all such security guards are not intermittent employees but are “year-round
employees who remain employed with the Giants until they resign or are terminated
pursuant to the CBA.” The Giants moved to compel arbitration or to dismiss the action
under the arbitration provision of the CBA and on the ground that the action is preempted
by section 301 of the Labor Management Relations Act, 29 United States Code,
section 185(a). The trial court rejected both grounds. We agree that the present dispute is
not within the scope of the arbitration provision in the CBA but conclude that arbitration
is required by section 301 of the Labor Management Relations Act.
                                       Background
       The following facts were established by declarations submitted in support of the
Giants’ motion and are largely undisputed.
       AT&T Park in San Francisco is used by the Giants for baseball games and for
concerts and other events during the off-season and between “homestands” (defined as
between three and 10 or more consecutive games at the home ballpark). Numerous non-
baseball events are held at the ballpark throughout the year.
       Melendez has been employed by the Giants as a security guard at AT&T Park
since March 2005. As required by the terms of the CBA he has at all times been a
member of the union and the terms of his employment are governed by the provisions of
the CBA.
       The CBA confirms that the union is the sole collective bargaining agency for
security personnel employed by the Giants at AT&T Park. The agreement defines several
classifications of employees. “Regular” employees are the 13 employees who in 2012
worked the most total hours and who continue to work at least 1700 hours in succeeding
years. These employees have priority in scheduling over other classifications of
employees and receive benefits not provided to other employees. Any vacancy in these


                                             2
13 positions “shall be filled by the person who worked the most hours in the previous
year from among those employees not classified as ‘regular employees.’ ” All other
employees (other than “supervisory” employees and “probationary” employees) are
labelled “seasonal” employees. The CBA also defines “senior seasonal” employees
(seasonal employees who have worked a minimum of 300 hours each year for the last
five years) and “super senior seasonal” employees (seasonal employees who have worked
a minimum of 300 hours each year for the last 10 years), who receive increased hourly
wages.
         All security personnel are required to meet specified employment qualifications.
These qualifications include obtaining a valid California Guard Card, which requires
“enrolling in and completing necessary coursework and training, passing the required
examination, passing the required background check” and meeting any other applicable
requirements. The CBA also provides that “All new applicants for employment as
security personnel shall be subject to pre-hire drug screening and background
investigation.” The Giants “have the right to discipline or discharge any regular, senior
seasonal or seasonal employee for cause.” The term of the CBA is from January 1, 2013,
through December 31, 2017, and from year-to-year thereafter unless either party requests
modification 60 days prior to the anniversary date.
         The CBA contains a schedule of hourly wages for all classifications of employees.
The agreement provides that the Giants “retain[] the right to establish what shall
constitute a normal workday and to schedule employees at its discretion.” All non-
probationary employees “shall be entitled to overtime pay for Martin Luther King Jr.
Day, President’s Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving,
Christmas & New Year’s Day.”
         According to the Giants’ Senior Director of Security, “security guards do not turn
in their uniforms or badges at the end of each homestand or baseball season.” They “do
not reapply for work or submit new hire paperwork at the beginning of each homestand
or baseball season. Nor do they have to undergo security background checks at the
beginning of each homestand or baseball season. [¶] . . . The Giants do not terminate their


                                              3
security guards at the end of each homestand or baseball season. On the contrary, security
guards remain on the Giants’ payroll between homestands and baseball seasons, unless
their employment otherwise ends (by resignation or pursuant to the CBA).” Many Giants’
security guards “regularly work between baseball seasons or year-round. . . . Based on
review of his payroll records, [Melendez] himself regularly worked between baseball
seasons. In fact, he worked every pay period in 2015 and each and every pay period in
2016 to date, often working almost as many hours in the ‘off-season’ as those during the
baseball seasons.” (Italics in original.)
       Without having invoked the grievance procedures specified in the CBA, plaintiffs
filed their complaints with common allegations. Melendez alleges that he and other
security guards are hired by the Giants “intermittently during the baseball season and
throughout the rest of the calendar year” and that the Giants fail to comply with Labor
Code section 201 “in no less than three (3) ways. (1) At the end of the baseball season
defendants do not pay intermittingly employed persons on the last day they work during
the season. (2) During the baseball season, defendants do not immediately pay
intermittently employed employees on the last day they work during a home-stand. (3)
Between baseball seasons, when intermittently employed persons are employed for
events such as concerts, college football games, theatrical performances, fan appreciation
days, a run of Cirque du Soleil shows, etc., defendants do not immediately pay
intermittently employed employees at the end of their work at these events.”
       The Giants have timely appealed from the trial court’s denial of its motion to
compel arbitration of these claims as assertedly required by the arbitration provision of
the CBA and by section 301 of the Labor Management Relations Act.

                                            Discussion

   1. The dispute does not come within the arbitration provisions of the CBA.

       Section Fourteen of the CBA, entitled Grievance & Arbitration, requires an effort
to resolve grievances informally and, failing informal resolution, arbitration of the
grievance. A “grievance” is defined as “any dispute between the employer and an


                                                4
employee or the union, regarding the interpretation, application or alleged violation of
any of the terms of this agreement.” The complaint is this action does not allege a
violation of the terms of the CBA. The complaint is based solely on the alleged violation
of Labor Code section 201. The trial court correctly ruled that the alleged statutory
violation does not come within the scope of the contractual arbitration provision. (E.g.,
Flores v. Axxis Network & Telecommunications, Inc. (2009) 173 Cal.App.4th 802, 808-
810.)

   2. Section 301 of the Labor Management Relations Act requires that the dispute be
      arbitrated.

        “[A] long line of United States Supreme Court cases hold[] that under section 301
[of the Labor Management Relations Act], although state courts have concurrent
jurisdiction over controversies involving agreements between unions and employers, the
substantive law governing union-management labor relations is exclusively a matter for
arbitration under federal law. [Citations.] . . . [¶] The Ninth Circuit, sitting en banc,
recently summarized section 301 preemption law as follows: ‘If the plaintiff’s claim
cannot be resolved without interpreting the applicable CBA . . . it is preempted. . . . [T]he
need to interpret the CBA must inhere in the nature of the plaintiff’s claim,’ however, in
order for preemption to apply. [Citation.] ‘[I]f the claim may be litigated without
reference to the rights and duties established in the CBA . . . [and] plainly is based on
state law,’ it is not preempted, even if ‘the defendant refers to the CBA in mounting a
defense.’ ” (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 762-763, fn. omitted.)
As the Ninth Circuit recognized in Newberry v. Pacific Racing Assn. (9th Cir. 1988) 854
F.2d 1142, 1147, section 301 of the Labor Management Relations Act “does not preempt
every employment dispute tangentially involving the labor agreement.” The test of
whether preemption applies is: “Does the application of state law ‘require[] the
interpretation of a collective-bargaining agreement,’[citation], or ‘substantially depend[]
upon analysis of the terms of the agreement made between the parties in a labor
contract?’ ” (854 F.2d at p. 1147.)



                                               5
       Here, plaintiffs seek the recovery of penalties under Labor Code section 203 on
the ground that the Giants’ failure to pay security guards immediately after the
termination of each instance of what they describe as “intermittent employment” violates
Labor Code section 201.3 Section 201, subdivision (a) begins: “If an employer discharges
an employee, the wages earned and unpaid at the time of discharge are due and payable
immediately.”4 The Giants’ position is that it does not “discharge” its security guards
after every game, homestand, baseball season or event at which the guards work. Rather,
it contends, the guards remain employed under the provisions of the CBA, subject to
scheduling by the Giants, unless and until a guard resigns or is terminated for cause under
the terms of the CBA.
       Melendez’s contrary position is based upon our Supreme Court’s decision in Smith
v. Superior Court (L’Oreal) (2006) 39 Cal.4th 77. In L’Oreal, the court concluded that
“an employer effectuates a discharge within the contemplation of Labor Code sections
201 and 203, not only when it fires an employee, but also when it releases an employee
upon the employee’s completion of the particular job assignment or time duration for
which he or she was hired.” (39 Cal.4th at p. 90.) In that case, the plaintiff was hired to be
a “hair model” at a single show featuring the employer’s products, with the understanding
that she would be paid $500 for the one day’s work. (Id. at p. 81.) The employer waited
over two months before paying the plaintiff, who successfully claimed that Labor Code

3
  Labor Code section 203 provides that an employer’s willful failure to pay wages to a
discharged employee in accordance with Labor Code section 201 subjects the employer
to penalties.
4
  Labor Code section 201, subdivision (a) continues with this exception: “An employer
who lays off a group of employees by reason of the termination of seasonal employment
in the curing, canning, or drying of any variety of perishable fruit, fish or vegetables,
shall be deemed to have made immediate payment when the wage of said employees are
paid within a reasonable time as necessary for computation and payment thereof;
provided, however, that the reasonable time shall not exceed 72 hours . . . .” Other
sections provide different final payment provisions for specified classes of employees,
none of which apply here. (Lab. Code, §§ 201.3, 201.5, 201.7, 201.9.) Melendez argues
that the absence of such a provision applicable to his employment emphasizes that the
requirement of immediate payment applies in this case.


                                              6
sections 201 and 203 “protect employees such as herself who are hired for a particular
job assignment or time duration, and that the statutory discharge element is met when the
employment relationship is terminated upon completion of the specified employment.”
(39 Cal.4th at p. 82.) Melendez asserts that L’Oreal applies to his situation, while the
Giants contend the case is inapplicable because its security guards are not hired “for a
particular job assignment or time duration.”
       Turning to the preemption issue, the trial court held that resolution of the
controversy does not require interpretation of the CBA, but simply a determination of
whether the security guards are discharged within the meaning of Labor Code section 201
at the conclusion of an event or series of baseball games. The court observed that the
dispute can be resolved without interpretation of “any specific language in the CBA.” It
reasoned that none of the provisions in the CBA, such as those “relat[ing] to vacations;
how employees are assigned work; and so on . . . [have] any connection . . . to whether
plaintiffs here were or were not terminated, the core (if not only) factual issue pertinent to
the statutory claims.”
       We disagree with this analysis. While resolution of the controversy may not turn
on the interpretation of any specific language in the CBA, it does not follow that the
meaning of the CBA is irrelevant to the outcome of the dispute. The underlying legal
issue, as all parties recognize, is whether plaintiffs were “discharged” within the meaning
of Labor Code section 201. But in order to determine whether the conclusion of a
baseball game or season or other event constitutes a discharge as interpreted in L’Oreal,
it is necessary to first determine the terms of employment. (Smith v. Superior Court
(L’Oreal), supra, 39 Cal.4th 77.) In L’Oreal the plaintiff was hired for only a single day’s
work, so that when the day ended her employment terminated and she was therefore
discharged within the meaning of the statute. Here, plaintiffs are union members and the
terms of their employment are governed by the CBA. It is essential to determine,
therefore, whether the CBA provides for employment of security guards for only a single
game or homestand or season or other event, or whether the agreement contemplates
extended employment from season to season, event to event, year to year, recognizing


                                               7
that not every day will be a day of work. If the latter, there is no termination of
employment, and therefore no “discharge,” at the conclusion of each baseball game,
homestand, season or other event.
       Although no provision of the CBA provides an explicit answer, the duration of the
employment relationship must be derived from what is implicit in the agreement. There
are numerous provisions from which inferences may logically be drawn. The
classification of employees is based on the number of hours worked in a year, itself
suggesting that employment is considered to continue beyond the conclusion of each
event. Continued classification as a “regular” employee requires at least 1,700 hours of
work in a year. “All employees shall be probationary employees for their first five
hundred (500) hours of work with the Giants.” Employees rise to “senior” and “super
senior” status by working a minimum of 300 hours each year for the last five or ten years,
hardly possible if each event is deemed a separate employment. As indicated above, the
CBA provides that “All new applicants for employment as security personnel shall be
subject to pre-hire drug screening and background investigation”; the language seems to
imply that such screening and investigation will occur only once prior to the start of a
single employment, and practice under the agreement confirms this interpretation. The
specification of holidays in the CBA certainly implies year-long employment. And under
the CBA, the Giants have the right to discharge an employee only for cause. Other
provisions may also support inferences as to the intended term of employment. We do not
here purport to definitively interpret the CBA but simply emphasize that resolution of the
controversy requires interpretation of the scope of employment under the CBA.
       Other cases on which Melendez relies for the argument that mere reference to a
collective bargaining agreement does not give rise to preemption under section 301 of the
Labor Management Relations Act are distinguishable. In Livadas v. Bradshaw (1994)
512 U.S. 107, the plaintiff’s claim under Labor Code sections 201 and 203 was not
preempted because there was no need to look to the terms of the collective bargaining
agreement under which plaintiff had been employed to determine whether section 201
had been violated. There was no dispute that plaintiff had been terminated and that final


                                              8
payment had been delayed. “Beyond the simple need to refer to bargained-for wage rates
in computing the penalty, the collective-bargaining agreement [was] irrelevant to the
dispute (if any) between Livadas and [the employer].” (512 U.S. at p. 125.) The
Commissioner of Labor in that case had erroneously concluded that she was prohibited
from enforcing section 201 whenever the employee had worked under a collective
bargaining agreement, even if there was no dispute as to the meaning of the agreement or
need to interpret it to determine liability under the statute. Similarly, in Balcorta v.
Twentieth Century-Fox Film Corp. (9th Cir. 2000) 208 F.3d 1102, 1110, “determining
whether Balcorta was discharged [did] not require a court to interpret the collective
bargaining agreement between Fox and Local 728, and thus [did] not render Balcorta’s
claims subject to complete preemption.” The other cases cited by Melendez are to the
same effect. (Meyer v. Irwin Industries, Inc. (C.D. Cal. 2010) 723 F.Supp.2d 1237, 1245
[“analysis [of plaintiff’s Labor Code claims] can be accomplished without any reference
to the CBA”]; Avalos v. Foster Poultry Farms (E.D. Cal. 2011) 798 F.Supp.2d 1156,
1162 [“Here, the CBA does not contain a complex wage structure that requires analysis
to resolve the claims.”]; Bonilla v. Starwood Hotels & Resorts Worldwide, Inc. (C.D. Cal.
2005) 407 F.Supp.2d 1107, 1112, 1113 [“Plaintiff’s claims by themselves do not require
an analysis of the CBA”; “Defendant does not demonstrate that the CBA must be
‘interpreted’ rather than simply referenced to determine unpaid compensation for missed
breaks”].)
       Since in this case application of Labor Code section 201 necessarily “ ‘require[s]
the interpretation of [the CBA]’ ” and “ ‘substantially depend[s] upon analysis of [its]
terms’ ” (Newberry v. Pacific Racing Assn., supra, 854 F.2d at p. 1147), federal
preemption applies and the dispute must be resolved pursuant to the grievance procedure
and arbitration under the CBA.
                                         Disposition
       The order denying the motion to compel arbitration is reversed.




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                                 _________________________
                                 Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




A149482



                            10
Trial court:                            San Francisco County Superior Court

Trial judge:                            Honorable Curtis E. A. Karnow

Counsel for plaintiff and respondent:   Dennis F. Moss
                                        Sahag Majarian II

Counsel for defendant and appellant:    SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
                                        Nancy Pritikin
                                        Babak Yousefzadeh
                                        Brian S. Fong




A149482



                                            11
