State high court considers whether ‘intermittent’ worker must arbitrate claims

SACRAMENTO -- The state Supreme Court heard arguments Wednesday over whether the San Francisco Giants can compel a security guard's wage and hour claim into arbitration.

The case could change the relationship of "intermittent" workers with their employers. The guard's attorneys claim he is not bound by a collective bargaining agreement requiring arbitration. Melendez et al. v. San Francisco Baseball Associates LLC, S245607 (State Sup. Ct., filed Nov. 27, 2017).

"This court asked a straightforward question: whether plaintiffs' statutory wage claim under Labor Code Section 201 requires the interpretation of a collective bargaining agreement and is therefore preempted by Section 301 of the Labor Management Relations Act," said Dennis F. Moss, a partner at Moss Bollinger LLP who represents security guard George Melendez. "The answer is no."

The 1st District Court of Appeal disagreed in 2017, reversing a lower court opinion. That opinion by Justice Stuart R. Pollak found that even though "the present dispute is not within the scope of the arbitration agreement provision" of the collective bargaining agreement signed by the union, arbitration was still required under federal labor law.

High court justices grilled Moss and Karin D. Vogel, the attorney for the baseball team, over the nature of Melendez's employment and other issues.

Vogel, a partner with Sheppard, Mullin, Richter & Hampton LLP, repeatedly sparred with justices over what type of employee Melendez should be considered under the "Smith test." This is a reference to Smith v. Superior Court (L'Oreal), 39 Cal. 4th 77 (2006).

That case involved a hair model hired for a day but not paid for months -- something the courts determined was illegal under state labor law. Melendez's attorneys argued that he too should be paid immediately at the end of a season or even at the end of a "home stand" of multiple games, because the team would not use him again for days or weeks.

Moss argued that federal law encompassed temporary separations under the definition of a layoff. Such a person is entitled to the benefits of the state labor law guaranteeing prompt payment despite any ongoing relationship with the employer.

Vogel said Melendez was a year-round employee because he worked during "every pay period for at least the year and a half" before the original case was filed. He also didn't need to be rehired or take a pre-employment drug test, and often worked many hours in the off season at concerts and other events at the team's home field.

Vogel said the collective bargaining agreement, between the team and a division of the Service Employees International Union, covered Melendez, triggering the arbitration clause.

"You seem to almost be arguing there is preemption here because of the way we have interpreted state law ... because of the way discharge is defined under [the state] Labor Code," said Joshua P. Groban, the court's newest justice. He said the notion seemed "backwards" and goes against "what the U.S. Supreme Court had in mind in its vision of preemption."

Vogel said the preemption issue did not need to be determined solely by federal law but instead relied on "the specific assignment or the duration" of employment under state law.

Justice Ming W. Chin said ultimately the sides were asking the court to clarify state labor law, but it was unclear what Vogel wanted them to do.

"Suppose we disagree with you; this is not a preemption case and this is not an interpretation of any section of the collective bargaining agreement. ... Do you want us to decide whether this was a discharge based upon the statute, or do you want us to remand it?" Chin asked.

"I think that this court could find there has been no discharge here ... as a matter of law," Vogel replied.