Opinion
H048285
09-14-2022
IAN MCCRAY, Plaintiff and Appellant, v. MARRIOTT HOTEL SERVICES, INC. et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 16CV291271
Danner, J.
Appellant Ian McCray sued his former employer, the San Jose Marriott Hotel (SJMEC), contending it had violated the City of San Jose's minimum wage ordinance (ordinance) when it paid him less than the ordinance's minimum hourly wage of $10. Respondents SJMEC and Marriott Hotel Services (collectively, Marriott) maintain that they did not violate the ordinance because, pursuant to the ordinance's waiver provision, Marriott had negotiated an agreement with McCray's labor union in which the union agreed to waive the minimum wage requirement in exchange for other benefits for its members.
This appeal centers on the meaning of the waiver provision in the ordinance, which states, "To the extent required by federal law, all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms." (San Jose Mun. Code, § 4.100.050, hereafter "section 4.100.050" or "waiver provision.") McCray argues that, because federal law did not "require[]" the waiver, Marriott and his union lacked the authority to waive his right to an hourly minimum wage of $10. Marriott disagrees and, in the trial court, moved for summary judgment against McCray.
The trial court agreed with Marriott's reading of the ordinance, granted summary judgment for Marriott, and entered judgment in its favor. On appeal, McCray contends that the trial court erred, and the judgment must be reversed. For the reasons explained below, we reject McCray's interpretation of the waiver provision and affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
On appeal following the trial court's grant of summary judgment, we "take the facts from the record that was before the trial court when it ruled on that motion." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The background and material facts are not in dispute.
A. Minimum Wage Ordinance
In November 2012, voters in the City of San Jose (city or San Jose) adopted a citywide minimum wage for employees. The Minimum Wage Ordinance, enacted as Measure D, is set forth in Title 4 of the San Jose Municipal Code. (San Jose Mun. Code, § 4.100.010, et. seq., hereafter "ordinance.") The ordinance sets the minimum wage at an hourly rate of $10, with an annual percentage increase beginning in 2014. (San Jose Mun. Code, §§ 4.100.040, subd. (B), 4.100.080.)
The waiver provision, set forth in section 4.100.050 and titled "Waiver Through Collective Bargaining" (boldface &some capitalization omitted) provides that "[t]o the extent required by federal law, all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms." (§ 4.100.050.)
B. Employment Background and Collective Bargaining Agreement
In May 2012, McCray began working as a busser (dining room attendant) at defendants' San Jose Marriott Hotel, and later added shifts as a host and an in-room server. McCray worked variously as a busser, host, or in-room server until mid-August 2013, when he began working as a server in the hotel's restaurant. McCray's hourly wages as an in-room server and a restaurant server were less than $10 per hour.
McCray earned an hourly wage of $13.60 as a host, $10.80 as a busser, $9.45 as an in-room server, and $9.00 as a server in the restaurant. While defendants note that the hourly wage for the server positions did not include tips, McCray points out that California law does not allow gratuities to the employee to be credited toward the required minimum wage.
Throughout his employment with Marriott, McCray was represented by Unite Here, Local 19 (the union). As a union member, McCray authorized the union to be his collective bargaining representative with respect to wages, hours, and the terms and conditions of his employment.
McCray understood that the union had a collective bargaining agreement with defendant SJMEC, effective from August 1, 2011, to June 30, 2015, (applicable to all but the last month of McCray's employment, which ended in August 2015). Appendix "A" to the collective bargaining agreement set out the hourly wages of in-room dining and restaurant servers, including McCray. Appendix "B" to the collective bargaining agreement, titled "Minimum Wage Waiver" (some capitalization omitted), expressly waived "all provisions and requirements" of the ordinance. It specified that if the waiver were deemed to be unenforceable, SJMEC and the union would have the option to reopen the collective bargaining agreement to negotiate changes.
A few months after moving into the server position, McCray inquired with SJMEC human resources and his union representative about his wage rate being less than the minimum wage. He ultimately did not file a grievance, as the union representative told him the union would not pursue it due to the waiver provision in the collective bargaining agreement.
McCray's employment with Marriott terminated in late August 2015. He filed this action against SJMEC and Marriott Hotel in February 2016.
C. Complaint and Motion for Summary Judgment
In the operative complaint, McCray alleged that Marriott violated the city's ordinance and state Labor Code provisions by maintaining a policy through the collective bargaining agreement of paying employees in server positions less than the applicable minimum wage. McCray asserted putative class claims (on behalf of similarly situated employees of Marriott in San Jose who were paid less than the applicable minimum wage on and after March 11, 2013) against Marriott for (1) violation of the ordinance, (2) failure to timely pay wages (Lab. Code, § 204), (3) failure to timely pay wages due at termination (Lab. Code, §§ 201, 203), (4) failure to itemize employee wage statements (Lab. Code, § 226), and (5) a derivative claim for unlawful and unfair business practices (Bus. &Prof. Code,17200 et seq.).
Marriott removed the action to federal court. After litigation in the district court and the Ninth Circuit Court of Appeals, the Ninth Circuit remanded the case and directed the district court to return the case to state court. In the trial court, the parties stipulated that defendants could bring an early motion for summary judgment on the threshold issue of whether the ordinance permits a collective bargaining agreement opt-out. Marriott subsequently moved for summary judgment or, in the alternative, summary adjudication. McCray opposed the motion.
See McCray v. Marriott Hotel Services, Inc. (9th Cir. 2018) 902 F.3d 1005, 1014. The Ninth Circuit's determination that "McCray's lawsuit amounts to an interpretive challenge to the San Jose ordinance, not one that requires substantial analysis of his union's collective-bargaining agreement" (id. at p. 1008) under the Labor Management Relations Act (29 U.S.C. § 185) is not directly at issue in this appeal.
D. Order Granting Summary Judgment
In a detailed order following a tentative ruling and hearing, the trial court granted summary judgment for Marriott. The trial court concluded that section 4.100.050, consistent with its title, authorizes" '[W]aiver through collective bargaining,'" and the disputed language (" '[t]o the extent required by federal law' ") referred to the requirement under federal law for any collective bargaining agreement waiver to be clear and unambiguous. Because there was no dispute that the collective bargaining agreement between SJMEC and the union contained such a waiver, the court ruled that Marriott was entitled to summary judgment.
McCray timely appealed the judgment entered in favor of Marriott following the grant of summary judgment.
II. DISCUSSION
A. Principles of Review Governing Summary Judgment and Statutory Interpretation
This appeal centers on the trial court's interpretation of an ordinance, which we review de novo. (City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1212; accord Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 531.) Whether the trial court erred in granting a defendant's motion for summary judgment is also a question of law subject to de novo review. (Samara v. Matar (2018) 5 Cal.5th 322, 338.) Summary judgment is warranted where there are no triable issues of material fact, and the moving party is entitled to judgment as a matter of law (Code Civ. Proc., § 437c, subd. (c)). (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Unspecified statutory references are to the Code of Civil Procedure.
This case involves no disputed material facts, and each of McCray's causes of action depends on the alleged invalidity of the waiver in the collective bargaining agreement. Therefore, if the ordinance permits a waiver in a collective bargaining agreement, Marriott is entitled to summary judgment as a matter of law.
We construe the city's ordinance by applying the same general principles that govern statutory interpretation. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321 (Kwikset).) "Our primary concern is giving effect to the intended purpose of the provisions at issue. [Citation.] In doing so, we first analyze provisions' text in their relevant context, which is typically the best and most reliable indicator of purpose. [Citations.] We start by ascribing to words their ordinary meaning, while taking account of related provisions and the structure of the relevant statutory . . . scheme. [Citations.] If the provisions' intended purpose nonetheless remains opaque, we may consider extrinsic sources, such as an initiative's ballot materials." (California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924, 933-934.) Where the legislative intent remains uncertain, we may also consider the policy consequences that will flow from a particular interpretation. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) Our overall aim is to "adopt a construction 'that will effectuate the voters' intent, giv[ing] meaning to each word and phrase, and avoid absurd results.'" (Santos v. Brown (2015) 238 Cal.App.4th 398, 409; see Dyna-Med, Inc. v. Fair Employment &Housing Com. (1987) 43 Cal.3d 1379, 1386 (Dyna-Med).)
B. Federal Law Concerning Collective Bargaining Agreement Waivers and Preemption of Substantive Labor Standards
The dispute between the parties' interpretation of section 4.100.050 centers on its prefatory phrase "[t]o the extent required by federal law."
According to McCray, this language signifies that the waiver provision operates as a "savings clause" to ensure the viability of the ordinance in the event a court were to deem the minimum wage law preempted by federal labor law under a doctrine known as Machinists preemption. (See Machinists v. Wisconsin Emp. Rel. Comm'n (1976) 427 U.S. 132, 133 (Machinists).) More specifically, he argues its purpose is to "preserve" the ordinance "in the event federal law moves to a point where a failure to permit a union in a particular locality to negotiate a carve-out" from the minimum wage law would be subject to preemption under the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq., and Machinists and its progeny. McCray asserts that relevant case law at the time San Jose voters adopted the proposed initiative suggested such a preemption challenge was possible.
Marriott responds that McCray's "savings clause" interpretation illogically assumes the ordinance's drafters sought to prepare for a contingency that "could never occur," given controlling Supreme Court authority on NLRA and Machinists preemption. Instead, Marriott urges that the plain language supports an intent to authorize collective bargaining agreement opt-outs "of the type that are routine in state and local ordinances." In support, Marriott points out that federal law has "long permitted" collectively bargained opt-outs from minimum wage and other minimum labor standards so long as certain requirements are met, including that for a waiver of statutory rights to be effective, the opt-out must be" 'clear and unmistakable.' "
To place these arguments in context, we briefly summarize the federal authority on which they depend.
1. NLRA Preemption Under Machinists
McCray's argument rests on the possibility of "Machinists preemption," one of two preemption doctrines recognized by the Supreme Court to protect federal labor policy under the NLRA. The doctrine "prohibits state regulation of conduct that Congress intended to be left to be controlled by the free-play of economic forces." (Chamber of Commerce of U.S. v. Bragdon (9th Cir. 1995) 64 F.3d 497, 499; see Building and Constr. Trades Council v. Associated Builders &Contractors of Mass./R. I., Inc. (1993) 507 U.S. 218, 226-227 [underMachinists, "the NLRA prevents a State from regulating within . . . a zone protected and reserved for market freedom"].) "Under Machinists preemption, . . . the NLRA prohibits states from restricting a 'weapon of self- help,' such as a strike or lock-out." (American Hotel &Lodging Ass'n v. City of Los Angeles (9th Cir. 2016) 834 F.3d 958, 963 (American Hotel).)
Machinists preemption does not operate to restrict state influence over substantive terms of collective bargaining agreements that are not inconsistent with federal labor policy. Indeed, "[t]he NLRA is concerned primarily with establishing an equitable process for determining terms and conditions of employment, and not with particular substantive terms of the bargain that is struck when the parties are negotiating from relatively equal positions." (Metropolitan Life Ins. Co. v. Massachusetts (1985) 471 U.S. 724, 753.) The Supreme Court reiterated this distinction in Fort Halifax Packing Co., Inc. v. Coyne (1987) 482 U.S. 1, noting that "the NLRA is concerned with ensuring an equitable bargaining process, not with the substantive terms that may emerge from such bargaining." (Id. at p. 20.) In Fort Halifax, the Supreme Court upheld a Maine statute requiring severance pay "since its establishment of a minimum labor standard does not impermissibly intrude upon the collective-bargaining process." (Id. at p. 23.)
Based on these precedents, the Ninth Circuit Court of Appeals has explained that "state action that intrudes on the mechanics of collective bargaining is preempted, but state action that sets the stage for such bargaining is not." (American Hotel, supra, 834 F.3d at p. 964; see also Babler Bros., Inc. v. Roberts (9th Cir. 1993) 995 F.2d 911, 915.) Permissible state action-or, in this case, municipal action-can include establishment of a generally applicable minimum wage.
"Minimum labor standards, such as minimum wages, are not subject to Machinists preemption." (American Hotel, supra, 834 F.3d at p. 963; see id. at pp. 965-966 [rejecting an industry challenge to a citywide minimum wage ordinance for hotel workers, since the ordinance was "the kind of minimum labor standard that falls within the ambit of state power" and that "alters the backdrop of negotiations, not the mechanics of collective bargaining"].) The Ninth Circuit in American Hotel similarly rejected a preemption challenge to the opt-out provision for collective bargaining contained within the citywide, hotel worker minimum wage ordinance, stating the "Supreme Court has made clear, [] that the NLRA 'cast[s] no shadow on the validity of these familiar and narrowly drawn opt-out provisions.'" (Id. at p. 965, quoting Livadas v. Bradshaw (1994) 512 U.S. 107, 132.)
2. Federal Standard for Collectively Bargained Labor Law Exemptions
By contrast, Marriott's arguments are based on federal doctrines regulating the waiver of labor rights. It is well settled in federal jurisprudence that collective bargaining agreement waivers need to be "clear and unmistakable" to be given effect. The Supreme Court affirmed this standard when it extended the" 'clear and unmistakable'" rule for a waiver of a statutorily protected right in a general contractual provision to a union-negotiated waiver of the statutory right to a judicial forum for claims of employment discrimination. (Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 80 (Wright).)
Furthermore, federal courts have consistently held that collectively bargained optouts or waivers from minimum labor standards are lawful under the NLRA. (See, e.g., American Hotel, supra, 834 F.3d at pp. 962, 965 [upholding opt-out provision exempting workers covered by a bona fide collective bargaining agreement, if the waiver is set forth in clear and unambiguous terms]; Viceroy Gold Corp. v. Aubry (9th Cir. 1996) 75 F.3d 482, 489-490 (Viceroy Gold) [upholding Labor Code exemption to eight-hour shift limitation for mining industry employees based on a valid collective bargaining agreement which expressly provides for the wages, hours, and working conditions of the covered employee]; id. at p. 490 [as a "narrowly tailored opt-out provision . . . not preempted by the NLRA"]; Fortuna Enterprises, L.P. v. City of Los Angeles (C.D. Cal. 2008) 673 F.Supp.2d 1000, 1012 (Fortuna Enterprises) [rejecting Machinists preemption challenge to living wage ordinance exemption, because "the living wage is not 'undercut' by the fact that there is an exemption for certain collective bargaining agreements, given that the Ninth Circuit has repeatedly held that such narrowly tailored opt-out provisions are valid"].) Thus, as the United States District Court observed in the decision later affirmed in American Hotel, "[e]xemptions for collective bargaining agreements with respect to any minimum labor standard are par for the course, as they are nearly guaranteed to be present in any labor-related statute." (American Hotel &Lodging Ass'n v. City of Los Angeles (C.D. Cal. 2015) 119 F.Supp.3d 1177, 1197.)
We now turn to our analysis of the language of the ordinance's waiver provision.
C. The Waiver Provision
We begin our task with the text of the ordinance "as the first and best indicator of intent." (Kwikset, supra, 51 Cal.4th at p. 321.) We apply" 'a plain and commonsense meaning'" to its language. (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165 (Sierra Club).) We try not only to "giv[e] to the language its usual, ordinary import" (Dyna-Med, supra, 43 Cal.3d at pp. 1386-1387) but to "accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose" (id. at p. 1387) and avoid "[a] construction making some words surplusage." (Ibid.)
"If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent . . . of the voters (in the case of a provision adopted by the voters)." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 (Lungren).) Application of the" 'plain meaning'" rule does not prevent a court from considering whether the literal meaning of the provision comports with its purpose. (Ibid.; see also Sierra Club, supra, 57 Cal.4th at pp. 165-166.) "Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute." (Lungren, at p. 735.)
The text of section 4.100.050 appears, at first pass, to authorize a bona fide collective bargaining agreement to waive the minimum wage requirement through inclusion of an express and unambiguous waiver provision. That is undoubtedly the plain meaning of the waiver provision if we set aside the prefatory phrase underlying this dispute ("[t]o the extent required by federal law"), leaving the following language: ". . . all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms." (§ 4.100.050.)
The challenge in interpreting section 4.100.050 lies in construing the prefatory phrase ("[t]o the extent required by federal law,") together with the independent clause that comprises the remainder of the provision ("all or any portion of the applicable requirements of this Chapter may be waived . . .") so as to "accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose." (Dyna-Med, supra, 43 Cal.3d at p. 1387.) Given the clear and undisputed meaning of the independent clause, this appeal hinges on the meaning of the waiver provision's prefatory language.
McCray argues that the prefatory phrase is properly read as "a clear condition precedent," whereby the waiver provision comes "into play" if" 'required,'" meaning mandated, by federal law. He notes that if the authors of the ordinance had merely intended to permit parties to a collective bargaining agreement to exempt themselves from the ordinance based on clear and unambiguous waiver language, as defendants contend, it would have been straightforward to do so by merely omitting the prefatory phrase altogether.
McCray points out that the ordinance's authors "were not writing on a 'clean slate'" and had numerous models of "unconditional opt-outs upon which to draw," including the San Francisco minimum wage ordinance which served as a model for the San Jose initiative. According to McCray, if the San Jose ordinance's waiver simply omitted the prefatory phrase, the remaining language would still serve the purpose of requiring any negotiated waiver or opt-out to meet the federal standard. He points out that the provision's final phrase ("provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms") (§ 4.100.050) itself invokes the" 'clear and unmistakable'" standard articulated by the United States Supreme Court in cases like Wright, supra, 525 U.S. at p. 80, without the need for the prefatory language.
The trial court took judicial notice of the San Francisco ordinance, which states in relevant part, "All or any portion of the applicable requirements of this Chapter shall not apply to Employees covered by a bona fide collective bargaining agreement to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms." (S.F. Admin. Code, § 12R.8.)
In support of this interpretation, McCray relies on Reyna v. McMahon (1986) 180 Cal.App.3d 220 (Reyna), in which the Court of Appeal considered the meaning of a statutory provision containing a prefatory phrase identical to the phrase at issue here. Reyna concerned California's program for aid to families with dependent children, for which there was a state-only program as well as a joint federal-state program. (Id. at p. 223.) The provision in Reyna read," 'To the extent required by federal law, aid under this chapter shall not be payable to a family budget unit if a caretaker relative is, on the last day of the month, participating in a strike." (Id. at p. 222, fn. 1 [quoting former Welf. &Inst. Code, § 11250.4], italics added.) Based on the phrase" '[to] the extent required by federal law,'" and on applicable federal law which made withholding aid from strikers a condition of federal participation in the federal-state program, the state in Reyna withheld aid to the family of a member participating in a strike. (Reyna, at p. 222.) The respondents (representing the affected family) maintained that the condition restricted aid only where the federal government participated in funding the benefits, i.e., in the joint federal-state program. (Id. at pp. 224-225.)
After initially concluding the language of the statute was ambiguous as to whether the intent was to restrict aid for the state program or only for the joint, federal-state program, the Court of Appeal turned to the relevant legislative history. (Reyna, supra, 180 Cal.App.3d at p. 225.) The court explained that the history showed the Legislature had acted in response to federal legislation that affected funding of the joint program and "was concerned only with the joint federal-state program when it enacted the striker exclusion of [Welfare and Institutions Code,] section 11250.4." (Ibid.) It reasoned that if the Legislature had intended to affect the state-only program, "it could merely have omitted the words '[t]o the extent required by federal law' from" the statute. (Id. at p. 226.) What is more, the court identified other aspects of the statute which supported the Court of Appeal's interpretation restricting the reach of the statutory provision only to joint federal-state programs where federal funds were involved. (Ibid.)
While the prefatory phrase at issue in our case is identical to that which the court construed in Reyna, the similarities end there. The Court of Appeal's examination of the statutory text in Reyna required it to look "to the applicable federal law to determine the 'extent' to which strikers shall be ineligible" (Reyna, supra, 180 Cal.App.3d at p. 225), where it "f[ou]nd that withholding aid from strikers is a condition of federal participation in the joint federal-state AFDC program. (42 U.S.C. § 602(a)(21)(B)(i).)" (Ibid.) Here too, to interpret the prefatory phrase, we must look to any such applicable federal law to determine whether or to what "extent" the law "requires" operation of the waiver provision. (See § 4.100.050.) But unlike in Reyna, there is no comparable requirement dictated by federal law that fits comfortably within the language of the ordinance. (Cf. Reyna, at p. 225.)
As both parties recognize, no federal law currently requires minimum wage standards to also authorize an opt-out through collective bargaining, nor did one exist when the ordinance was enacted. To the contrary, our review, ante, of the relevant federal law on NLRA preemption of minimum labor standards confirms that the establishment of a generally applicable minimum wage-with or without exemptions for collective bargaining-does not offend federal labor policy under the NLRA and is “not subject to Machinists preemption.” (American Hotel, supra, 834 F.3d at p. 963.) Given the Ninth Circuit's observation “that ‘state minimum benefit protections have repeatedly survived Machinists preemption challenges,' because they do not alter the process of collective bargaining” (id. at p. 964), we cannot agree with McCray's proposed interpretation.
McCray argues it was not "wholly unreasonable" for the drafters of the ordinance to consider preemption a possibility, given pending litigation at the time involving San Jose's Living Wage Ordinance, which established a minimum hourly wage for all covered employees working at San Jose's international airport. (See Johnson v. Sky Chefs, Inc. (N.D. Cal., Sept. 27, 2012, No. 11-CV-05619-LHK) 2012 WL 4483225, at *11.) His reliance on the living wage ordinance litigation is unavailing. As the district court noted in its order rejecting the Machinsts preemption argument in the Sky Chefs case, United States Supreme Court and Ninth Circuit precedent already clearly distinguished between permissible and impermissible government regulation of the employment marketplace (id. at *12), and McCray offers no persuasive support for his claim that "a federal court might construe that employees in San Jose had bargained with voters, rather than with individual employers, adversely changing the collective bargaining dynamic."
To interpret the prefatory phrase as referring to the theoretical, likely remote possibility that "federal law moves to a point where a failure to permit a union in a particular locality to negotiate a carve-out" from the minimum wage law would be subject to Machinists preemption, would, for the present and foreseeable future, render the waiver provision a nullity. Under this interpretation, section 4.100.050 would be without effect, and parties to a collective bargaining agreement would not be permitted to negotiate terms at variance with the ordinance unless and until an unlikely precondition took effect. We decline to adopt this purportedly literal yet nonsensical construction of the waiver provision, which is inconsistent with the inclusion of the waiver provision in the ordinance scheme. (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616.)
The implausibility of McCray's savings clause interpretation is particularly acute given the title of the provision, which appears in boldface as “4.100.050 WAIVER THROUGH COLLECTIVE BARGAINING.” Although, in construing a code provision, “ ‘ “chapter and section headings cannot be resorted to for the purpose of creating ambiguity when none exists”' ” (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 89), section headings may be properly considered in determining intent when the application of a statute is uncertain. (Ibid.) “[I]t is well established that ‘ “chapter and section headings [of an act] may properly be considered in determining legislative intent” [citation], and are entitled to considerable weight.'" (People v. Hull (1991) 1 Cal.4th 266, 272 (Hull) [citing the appearance of the statutory provision concerning peremptory challenges "under the chapter heading 'Disqualifications of Judges'" as providing "a strong indication that the Legislature intended a section 170.6 peremptory challenge to constitute a 'disqualification' within the meaning of" the statute].) McCray's reading of section 4.100.050, which makes it operative only in the event of future, hypothetical changes in the law flies in the face of its straightforward title, "waiver through collective bargaining." (Capitalization &boldface omitted.)
For its part, Marriott contends that the plain meaning of the ordinance, viewed against the backdrop of case authority confirming the federal standard for waiving statutorily protected rights, is that any waiver of the minimum wage law must be "clear and ambiguous," consistent with (or "[t]o the extent required by") federal law. (§ 4.100.050.)
We agree with Marriott's reading of the language of the ordinance. Looking to the text itself as the "best indicator of intent" (Kwikset, supra, 51 Cal.4th at p. 321), we note that the prefatory phrase is not entirely redundant of the remainder, nor is it surplusage. Rather, it may be read as clarifying the scope or intended application of the waiver provision: "To the extent required by federal law, all or any portion of the applicable requirements of this Chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms." (§ 4.100.050, italics added.) A commonsense interpretation of this formulation, according significance to every word and phrase of the waiver provision and giving weight to the section title (Dyna-Med, supra, 43 Cal.3d at p. 1387; Hull, supra, 1 Cal.4th at p. 272) is simply that collective bargaining agreement waivers are authorized, provided they are set forth in explicit and clear and unambiguous terms, to the extent required by federal law.
McCray asserts that this interpretation "needlessly adds a redundancy" and suggests that if that were the intent, the provision would state "as required by federal law," rather than "[t]o the extent ...." We reject the redundancy argument, because a prefatory phrase clarifying the scope or meaning of the remaining terms is not necessarily redundant. Without the prefatory phrase, the latter part of the waiver provision authorizing a waiver "provided [it] is explicitly set forth . . . in clear and unambiguous terms" (§ 4.100.050) could be viewed merely as an articulation of the general standard for waiving a right under California law, where" '" '[w]aiver' means the intentional relinquishment or abandonment of a known right." '" (Dones v. Life Insurance Company of North America (2020) 55 Cal.App.5th 665, 677; see also American Hotel &Lodging Ass'n v. City of Los Angeles, supra, 119 F.Supp.3d at p. 1198 [noting citywide hotel workers wage ordinance "requirement of a 'clear and unambiguous' waiver is unremarkable"]; id. at p. 1197 [given that California law requires "that 'the valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived.' "].) The inclusion of the prefatory phrase clarifies that "[t]o the extent required by federal law," any waiver must conform to the stated requirements under federal law. Thus, it affirmatively directs parties seeking to implement the waiver provision to the standards set by the federal law.
McCray maintains that interpreting the waiver provision as anything but a "condition precedent" is contrary to the purpose of the ordinance, which voters enacted for the reasons stated in the ordinance preamble. The policies cited in the preamble to the ordinance include to enable workers to meet basic needs and avoid economic hardship, and to provide workers with economic security and assurance that their rights will be respected through "prompt and efficient enforcement" of the ordinance. McCray argues there is nothing in the purpose or preamble to suggest that membership in a union was deemed an adequate safeguard for these goals, and that construing the waiver provision to take effect only in the event that a change in federal law or jurisprudence requires availability of a waiver to avoid NLRA preemption promotes the stated goals of the ordinance's enactment.
McCray offers no persuasive support for his contention that the inclusion of a permissive waiver provision in the ordinance for parties to a bona fide collective bargaining agreement is at cross-purposes with the goals stated in the preamble. He asserts that construing section 4.100.050 as current and in-effect "sets up a paradigm where low wage workers performing the same work in the same city are subject to different wages merely" based on union membership. But as explained above, courts interpreting Machinsts preemption agree that the burdens and benefits to employment relationships which may result from a statutory provision for a collective bargaining exemption from a minimum labor standard do not invalidate those rights. (See Fortuna Enterprises, supra, 673 F.Supp.2d at p. 1011; Viceroy Gold, supra, 75 F.3d at p. 489.)
Nor does McCray explain how the failure to mention collective bargaining in the preamble takes precedence over the express inclusion of the waiver provision in the body of the ordinance." '[S]tatements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration'" but" 'do not confer power, determine rights, or enlarge the scope of a measure.'" (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925.) In this case, the express provision for "Waiver Through Collective Bargaining" (boldface &some capitalization omitted) in a dedicated section of the chapter overrides any contrary inference that may be drawn from the preamble's silence on the subject of collective bargaining.
For these reasons, we reject McCray's proposed interpretation of the waiver provision as a "condition precedent" as "contrary to the legislative intent apparent in the statute." (Lungren, supra, 45 Cal.3d at p. 735.) Using the ordinary tools of statutory interpretation and considering the background federal labor law principles, we decide that the waiver provision authorizes waiver of the ordinance pursuant to a bona fide collective bargaining agreement, provided the agreed-upon waiver is explicit, clear, and unambiguous, to the extent required by federal law. (§ 4.100.500.) Our determination based on the plain language of the ordinance makes it unnecessary to resort to extrinsic interpretive aids. (See Lungren, at p. 735.)
Given that there is no dispute that the collective bargaining agreement in this case contained a waiver provision in accordance with section 4.100.050, we affirm the grant of summary judgment to Marriott.
III. DISPOSITION
The judgment is affirmed. Respondents are entitled to recover their reasonable costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
WE CONCUR: Bamattre-Manoukian, Acting P.J. Wilson, J.