In Martinez v. J. Fletcher Creamer & Son, Inc., 2010 WL 3359372 (C.D. Cal. Aug. 13, 2010), the court held that a collective bargaining agreement that mentions “breaks” did not clearly and unmistakably waive plaintiff’s right to sue.
Plaintiff Antonio Martinez (“Plaintiff”) worked for Defendant J. Fletcher Creamer & Son, Inc. (“Defendant”) as a construction worker. Id. *1. Plaintiff’s terms of employment were governed by a CBA, which provides for a grievance procedure for “enforcing all the terms and provisions contained in this Agreement .” Id. If an employee has “a grievance or dispute,” he must first raise the issue with Defendant. The CBA outlined the terms of employment relating to holidays, payment of wages, meal periods, and breaks, and in a section entitled “Breaks,” the CBA stated:
The parties to this agreement recognize Industrial Wage Order 16 covering “On Site Construction, Mining, Drilling and Logging Industries.” Any dispute or grievance arising from this Wage Order shall be processed under and in accordance with Article VI, Procedures for Settlement of Grievances and Disputes of this Agreement.” [sic] The grievance process of Article VI shall be the exclusive method for resolving all alleged violations on [sic] this Wage Order and the time limitations of Article VI shall apply.
Plaintiff filed a complaint against Defendant for unpaid wages, minimum wages, meal breaks, pay period and other violations, without first filing a grievance with Defendant. Id. *2. Defendant moved for summary judgment on each of Plaintiff’s claims on the grounds that (1) they are all covered by the CBA grievance procedure outlined in Article VI of the CBA and (2) Plaintiff failed to file a grievance on any of these claims. Id. *3.
The court found that “Despite the CBA’s reference to Wage Order 16 in the ‘Breaks’ section of Article XVI, the Court finds that the CBA did not clearly and unmistakably waive Plaintiff’s right to sue under the FLSA” “because the CBA does not expressly reference any of the statutory provisions at issue.” Id. **3-4. “The grievance process outlined in Article VI does not mention any of the relevant statutes, and the rest of the CBA does not expressly incorporate any statutes, let alone the relevant provisions of the FLSA, the California Labor Code, and the California Business and Professions Code.” Id. *4.
The court rejected defendant’s argument that the CBA incorporated Wage Order 16, which in turn incorporated those statutes:
First, the alleged incorporation of the statutory provisions in the Wage Order is one step removed from their alleged incorporation in the CBA. Second, even if the statutory references contained in Wage Order 16 were sufficiently incorporated into the CBA, the Wage Order does not clearly incorporate all of the relevant statutory provisions. The only statute that is explicitly referenced in Wage Order 16 and relied upon by Plaintiff in the complaint is Cal. Lab.Code § 512 (the Meal Periods Claim). Section 10(A) of the Wage Order 16 mentions the statute in a parenthetical . . . . Even if Wage Order 16 sufficiently incorporates Cal. Lab.Code § 512, the Wage Order provides an exception for collective bargaining agreements in § 10(E) that may apply in this case. . . . Thus, it is not clear that Wage Order 16 incorporates any of the relevant statutory provisions or that the CBA sufficiently incorporates the Wage Order.
Judge Philip S. Gutierrez.