Filed 6/9/20 Cervantes v. N.M.N. Construction CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ENRIQUE CERVANTES,

Plaintiff and Respondent,

v.

N.M.N. CONSTRUCTION, INC.,

Defendant and Appellant.

G057365

(Super. Ct. No. 30-2018-00998161)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Gregory H. Lewis, Judge. Affirmed in part, reversed in part, and remanded.

Littler Mendelson, Richard S. Falcone and Oliver B. Dreger for Defendant and Appellant.

Chami Law, Pouya B. Chami and Derick Hovsepian for Plaintiff and Respondent.

* * *

This is an appeal from an order partially denying an employer’s motion to compel its former employee’s claims into arbitration. Relying on two competing arbitration provisions in a collective bargaining agreement, defendant N.M.N. Construction, Inc. (NMN) sought to compel arbitration of plaintiff Enrique Cervantes’s claims for retaliation, wrongful termination, and wage and hour violations. Citing only one of those arbitration provisions, the trial court granted NMN’s motion on the first through seventh causes of action, but it denied the motion on the eighth, ninth, and tenth causes of action. NMN appealed.

After reviewing the matter de novo, we conclude the collective bargaining agreement’s two competing arbitration provisions are so inherently contradictory and inconsistent that we cannot conclude the parties agreed to arbitrate any of the subject claims. We therefore reverse the portion of the trial court’s order compelling arbitration of the first through seventh causes of action, affirm the portion of the order denying arbitration of the eighth through tenth causes of action, and remand this matter for further proceedings.

FACTS

NMN is a construction company that provides structural concrete services. It is a member of the Building Industry Association of Southern California, Inc., which is a party to the 2015-2018 Southern California Laborers Master Labor Agreement (CBA) between various contractor associations, the Southern California District Council of Laborers, and its affiliated local unions.

The CBA, nearly 60 pages in length, includes various provisions on shifts and working hours, meal and rest periods, and the payment of wages and overtime, among other topics. It also acknowledges the applicability of Industrial Welfare Commission Wage Order No. 16-2001 (Cal. Code Regs., tit. 8, § 11160; Wage Order 16).

The CBA contains two different arbitration provisions. The first provision, Article VI, requires employees to resolve all “Contractual Disputes” (a defined term we discuss below) through a union grievance and arbitration procedure. The second arbitration provision, Appendix C, part B, requires employees to resolve all “Statutory Disputes” (another defined term we discuss below) in private arbitration before the American Arbitration Association (AAA). The arbitration proceedings contemplated by these two competing provisions are significantly different in terms of what procedures and rules apply, who the arbitrator is, and who pays for the arbitration, among other matters. Thus, whether a given claim qualifies as a Contractual Dispute or a Statutory Dispute directly impacts how it will be resolved and by whom.

NMN employed Cervantes as a nonexempt hourly laborer from 2016 to 2017. During Cervantes’s employment, he was a member of the Southern California District Council of Laborers and thus was allegedly subject to the CBA.

In 2018, Cervantes filed a complaint against NMN for (1) retaliation for disclosing wage and hour violations (Lab. Code, § 1102.5), (2) wrongful termination in violation of public policy (termination for complaining of wage and hour violations), (3) failure to pay wages due at termination (§ 201), (4) unpaid overtime wages (§§ 510, 1194), (5) failure to provide rest periods or provide premium pay for missed rest periods (§ 226.7), (6) failure to provide meal periods or provide premium pay for missed meal periods (§ 226.7), (7) failure to provide accurate itemized wage statements (§ 226), (8) waiting time penalties (§ 203), (9) unfair business practices (Bus. & Prof. Code, § 17200), and (10) failure to produce personnel and payroll records (§§ 226, 1198.5).

NMN moved to compel arbitration of Cervantes’s claims under the CBA’s arbitration provisions and to stay the judicial proceedings pending the conclusion of the arbitration. In its motion, NMN argued the first and second causes of action for retaliation and wrongful termination are subject to AAA arbitration under the provisions of Appendix C, and the remaining causes of action are subject to union arbitration under the provisions of Article VI. Cervantes opposed the motion, asserting NMN failed to show a valid arbitration agreement exists between him and NMN.

The trial court granted the motion in part and denied it in part. It ordered the first through seventh causes of action to arbitration under Appendix C of the CBA. This result was largely inconsistent with the relief NMN sought in its motion, in which NMN asserted the third through seventh causes of action are instead subject to arbitration under Article VI. The court did not explain why it found Appendix C, as opposed to Article VI, applied to those causes of action.

Relying on Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th 1 (Cortez), the trial court denied NMN’s motion as to the eighth, ninth, and tenth causes of action and stayed the action pending the completion of the arbitration. NMN appealed.

DISCUSSION

1. Standard of Review and Scope of Appeal

“When a trial court’s order [denying a petition to compel arbitration] is based on a question of law, we review the denial de novo. [Citation.] Decisions on issues of fact are reviewed for substantial evidence.” (Performance Team Freight Systems, Inc. v. Aleman (2015) 241 Cal.App.4th 1233, 1239.) In this case, the trial court’s ruling did not hinge on the credibility of any extrinsic evidence, but rather on its legal interpretation of the CBA’s arbitration provisions. Accordingly, our review is de novo.

At the outset, we must address the scope of this appeal. An order denying a petition to compel arbitration is appealable (Code Civ. Proc., § 1294, subd. (a)), but ‘“an order compelling arbitration is not.”’ (Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 442.) “‘As a general rule, where only one of several parties appeals from a judgment [or order], the appeal includes only that portion of the judgment [or order] adverse to the appealing party’s interest.”’ (Warren v. Merrill (2006) 143 Cal.App.4th 96, 108, fn.3 (Warren).) Thus, at first blush, it seems we may only consider the portion of the trial court’s order denying NMN’s motion to compel arbitration of Cervantes’s eighth, ninth, and tenth causes of action and must disregard the rest of the order compelling arbitration of the remaining claims.

An exception exists, however, “where the part of the judgment [or order] appealed from is so interwoven and connected with the remainder on appeal . . . .” (Warren, supra, 143 Cal.App.4th at p. 108, fn.3.) If “portions of a judgment [or order] adverse to a nonappealing party are inextricably interwoven with the whole judgment [or order], a general reversal may be ordered to do complete justice.” (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1092.)

Here, the eighth and ninth causes of action are derivative of multiple causes of action compelled to arbitration by the trial court. As a result, we cannot consider whether those two causes of action should be ordered to arbitration, or under which arbitration provision they might be compelled to arbitration, without also examining the court’s order compelling the other causes of action to arbitration. In other words, the issue of which arbitration procedure applies to the eighth and ninth causes of action is inextricably interwoven and dependent upon the proper determination of which arbitration procedures apply to the underlying causes of action. We therefore consider the whole of the trial court’s order on the motion to compel, not simply the portion of the order adverse to NMN.

2. Existence of an Agreement to Arbitrate

Turning to the merits of NMN’s appeal, we first must determine if there was an agreement to arbitrate. When a party petitions to compel arbitration, it is the court’s responsibility, not the arbitrator’s, to determine whether the parties agreed to arbitrate the dispute. (Code Civ. Proc., § 1281.2 [trial court shall grant petition to compel arbitration “if it determines that an agreement to arbitrate the controversy exists”]; see also 9 U.S.C. § 4 [“If the making of the arbitration agreement . . . be in issue, the court shall proceed summarily to the trial thereof”].)

“‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.’” (Flores v. Nature’s Best Distribution, LLC (2016) 7 Cal.App.5th 1, 8-9 (Flores).) There is “‘no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate.’” (Rebolledo v. Tilly’s, Inc. (2014) 228 Cal.App.4th 900, 912.)

General principles of California contract law apply in determining whether the parties agreed to arbitrate. (Flores, supra, 7 Cal.App.5th at p. 9.) The basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting. (Ibid.) The words of the contract must be understood in their ordinary and popular sense, and the whole of the contract must be taken together to give effect to every part, if reasonably practicable, each clause helping to interpret the other. (Ibid.)

Cervantes contends that because he did not sign the CBA, NMN failed to produce sufficient evidence that the parties agreed to arbitration. Where the agreement to arbitrate appears in a CBA, however, an employee need not sign the CBA to be bound by its provisions. Instead, a “union representative may agree on an employee’s behalf as part of the collective bargaining process to require the employee to arbitrate controversies relating to an interpretation or enforcement of a CBA.” (Cortez, supra, 15 Cal.App.5th at p. 11; see Porter v. Quillin (1981) 123 Cal.App.3d 869, 874 [“a union has the authority to bind the members of the bargaining unit to the terms of a collective agreement, whether or not they are members of the union, and whether or not they were employed in the bargaining unit at the time the agreement was entered into or ratified”].)

Nevertheless, we agree with Cervantes that NMN failed to prove the existence of an agreement to arbitrate. As we explain below, the competing arbitration provisions in Article VI and Appendix C of the CBA seemingly both apply to most of the claims in the complaint, despite each purporting to be the “exclusive” remedy for those claims. This renders the arbitration provisions impermissibly vague, inherently contradictory, and unintelligible under the circumstances.

3. The CBA’s Conflicting Arbitration Provisions

As noted, the CBA contains two conflicting arbitration provisions: Article VI requires employees to resolve Contractual Disputes through the union grievance and arbitration procedure, and Appendix C requires employees to resolve Statutory Disputes in private arbitration before the AAA.

A. Article VI: Union Arbitration of Contractual Disputes

The union grievance and arbitration procedures outlined in Article VI are purportedly the “exclusive” remedy for resolving Contractual Disputes, which the CBA defines as all claims for violations of the CBA and all claims for violations of Wage Order 16. Thus, any claims alleging violations of the CBA’s or the Wage Order’s provisions on matters like wage payment, overtime pay, meal and rest periods, or recordkeeping requirements must be resolved using Article VI’s union grievance and arbitration procedures.

Under Article VI, an aggrieved employee must first attempt to resolve the Contractual Dispute with the contractor. If that fails, the matter is referred for decision to the Joint Adjustment Board, a group of representatives from both the contractor and the union. A decision by a simple majority of the Joint Adjustment Board will be final and binding. If the Joint Adjustment Board reaches a deadlock, an arbitrator is named from a panel of seven “permanent” arbitrators designated by the Joint Adjustment Board, using whichever arbitrator is next in the “rotation.” If for any reason that arbitrator is unavailable, the next arbitrator in succession will be selected. The arbitrator must meet with the Joint Adjustment Board within 72 hours and render a decision within 72 hours after that meeting, unless the time is extended by mutual agreement. It is unclear from Article VI what procedural rules govern the arbitration proceeding, whether a hearing is held, or whether discovery is permitted. A majority decision of the Joint Adjustment Board and the arbitrator must be in writing; that decision is final and binding. The arbitrator’s fees and expenses are to be borne by the losing party.

B. Appendix C: AAA Arbitration of Statutory Disputes

Appendix C contains a significantly different arbitration procedure for Statutory Disputes. The CBA defines Statutory Disputes as “all employee disputes concerning violations of, or arising under . . . the California Labor Code Sections identified in California Labor Code section 2699.5 as amended . . . and federal, state and local law concerning wage-hour requirements, wage payment and meal or rest periods,” as well as “any contract, tort or common law claim concerning the matters addressed in the foregoing laws (other than a claim of violation of the Master Labor Agreement which are deemed Contractual Disputes).” According to Appendix C, Statutory Disputes “shall be subject to and must be processed by the employee pursuant to the procedures set forth in this Appendix C as the sole and exclusive remedy.”

Appendix C then provides: “If the individual employee dispute is a Statutory Dispute subject to this Appendix C, the grievance shall not be heard by the Joint Adjustment Board, but shall proceed directly to an independent Arbitrator. In such cases, the procedures for selection of an Arbitrator contained in Article VI shall not apply; instead, the individual employee and the Contractor shall proceed to arbitration pursuant and subject to the American Arbitration Association National Rules for Employment Disputes.” Appendix C requires the contractor to pay the arbitrator’s fees and costs unless the arbitrator reallocates those fees and costs after “giving due consideration to the individual employee’s ability to pay.” It also contains provisions on attorney fees, the arbitrator’s authority to fashion remedies, and the binding nature of the arbitrator’s decision.

4. Which Arbitration Provisions Apply to Each Cause of Action?

As the above-quoted provisions demonstrate, whether a given claim qualifies as a Contractual Dispute or a Statutory Dispute under the CBA has a direct impact on what procedures are applicable, who the arbitrator is, what rules apply, and who pays for the arbitration, among other matters. According to NMN, Article VI and Appendix C “could not be clearer when it comes to their intended scope and breadth.” We disagree. Cervantes’s first and second causes of action for retaliation in violation of section 1102.5 and for wrongful termination in violation of public policy are the only claims that fall squarely under only one arbitration provision: both are Statutory Disputes. Moving forward the water gets muddy. Determining whether Cervantes’s remaining claims qualify as Contractual Disputes subject to Article VI, or as Statutory Disputes subject to Appendix C, is challenging, if not impossible because the CBA defines Contractual Disputes and Statutory Disputes so expansively. As we explain below, the remaining eight causes of action could arguably qualify both as Contractual Disputes and as Statutory Disputes, depending on which provision of the CBA one focuses on.

For example, Cervantes’s third cause of action for failure to pay wages due at termination is based on section 201, which requires an employer to “immediately” pay a discharged employee his or her wages at the time of termination. On the one hand, this claim might qualify as a Contractual Dispute to the extent it implicates a violation of Article XVI.B.2 of the CBA, which requires employees to be “paid wages due them at the time of layoff or discharge.” On the other hand, this claim might qualify as a Statutory Dispute, because Appendix C defines Statutory Disputes to include claims arising under section 201 (one of the “Labor Code Sections identified in California Labor Code section 2699.5 as amended”) and because Appendix C further defines Statutory Disputes to include “state and local law concerning . . . wage payment.”

Cervantes’s fourth cause of action for unpaid overtime wages is based on sections 510 and 1194, which require employers to pay overtime and which permit the filing of civil actions to recover unpaid overtime compensation. This claim might qualify as a Contractual Dispute because it implicates the CBA’s provisions on overtime and wage scales, Article XVIII.A.3 and XIX.A. Or it might qualify as a Statutory Dispute because Appendix C defines Statutory Disputes to include claims under sections 510 and 1194 (two of the “Labor Code Sections identified in California Labor Code section 2699.5 as amended”) and because Appendix C further defines Statutory Disputes as including “state and local law concerning . . . wage payment.”

Cervantes’s fifth cause of action for failure to provide rest periods or provide premium pay for missed rest periods is based on section 226.7, which requires an employer that fails to provide a rest period in accordance with the applicable wage order to pay the employee one additional hour of pay at the employee’s regular rate of compensation. This claim might qualify as a Contractual Dispute because it implicates Wage Order 16, section 11, which requires employers to authorize rest periods and provide one hour of pay if a rest period is not provided, and also because it implicates the CBA’s provisions on rest periods, Article XVI.D. Or it might qualify as a Statutory Dispute, which Appendix C defines to include claims under section 226.7 (one of the “Labor Code Sections identified in California Labor Code section 2699.5 as amended”), and which further defines Statutory Disputes as including “state and local law concerning . . . rest periods.”

Cervantes’s sixth cause of action for failure to provide meal periods or provide premium pay for missed meal periods is based on sections 226.7 and 512, which require an employer that fails to provide a meal period in accordance with state law to pay the employee one additional hour of pay at the employee’s regular rate of compensation. On the one hand, this claim might qualify as a Contractual Dispute because it implicates the CBA’s provision on meal periods, Article XVI.C. On the other hand, it might qualify as a Statutory Dispute, which Appendix C defines to include claims under sections 226.7 and 512 (two of the “Labor Code Sections identified in California Labor Code section 2699.5 as amended”), and which Appendix C further defines to include “state and local law concerning . . . meal . . . periods.”

Cervantes’s seventh cause of action for failure to provide accurate itemized wages statements is based on section 226, subsection (a), which requires employers to provide accurate itemized wage statements each pay period and pay a penalty for each period of knowing noncompliance. This claim might qualify as a Contractual Dispute because it implicates Article XVI.B.2 of the CBA, which requires employers to furnish records showing time worked and hours paid with each payment, and further implicates sections 6 and 18 of Wage Order 16, which require employers to provide written wage statements under section 226 and pay penalties for noncompliance. Or it might qualify as a Statutory Dispute because Appendix C defines Statutory Disputes to include disputes under section 226, subsection (a) (one of the “Labor Code Sections identified in California Labor Code section 2699.5 as amended”), and further defines Statutory Disputes to include “state and local law concerning wage-hour requirements [and] wage payment.”

Cervantes’s eighth cause of action for waiting time penalties is based on section 203, which provides that if an employer “willfully” fails to pay a discharged employee his wages at the time of termination in violation of section 201, the employee may recover waiting time penalties equivalent to up to 30 days’ wages. This claim perhaps qualifies as a Contractual Dispute because it implicates Article XVI.B.2 of the CBA, which requires an employer to pay waiting time penalties if it fails to pay all wages due at the time of discharge. On the other hand, this claim could qualify as a Statutory Dispute, which Appendix C defines to include disputes under section 203 (one of the “Labor Code Sections identified in California Labor Code section 2699.5 as amended”), and which Appendix C further defines to include “state and local law concerning . . . wage payment.”

Tellingly, NMN itself is not clear on which arbitration provision applies to the eighth cause of action. In its motion to compel arbitration, NMN argued this claim qualifies as a Contractual Dispute subject to Article VI. In its opening and reply briefs in this appeal, however, NMN changed course and asserted this claim “clearly and unmistakably” qualifies as a Statutory Dispute subject to Appendix C. (Italics added.) Then, after we requested supplemental briefing, NMN changed its position again and asserted this claim is a Contractual Dispute subject to Article VI. NMN’s inconsistency on this issue underscores the ambiguity plaguing the CBA’s arbitration provisions.

Cervantes’s ninth cause of action for unfair business practices under Business & Professions Code section 17200 is derivative of Cervantes’s third through seventh causes of action. Whether it qualifies as a Contractual Dispute or Statutory Dispute thus depends on whether the underlying claims on which it is based qualify as Contractual Disputes or Statutory Disputes. This poses a logistical problem for compelling the ninth cause of action to arbitration, because if some of the underlying causes of action qualify as Statutory Disputes and others as Contractual Disputes, that would require the division of the ninth cause of action between multiple forums. In its motion to compel arbitration and opening brief, NMN maintained this claim is subject to arbitration generally but, not surprisingly, it failed to specify which arbitration provision applies.

Finally, Cervantes’s tenth cause of action for failure to produce personnel and payroll records is based on section 226, subdivision (c), and section 1198.5, which require employers to produce employment and personnel records upon request within certain time periods. On the one hand, this claim might qualify as a Contractual Dispute to the extent it implicates section 6 of Wage Order 16, which requires employers to make certain records available for inspection upon request. On the other hand, this claim could perhaps qualify as a Statutory Dispute, which Appendix C defines to include “state and local law concerning wage-hour requirements.” In its motion to compel arbitration, NMN argued this claim qualifies as a Contractual Dispute subject to Article VI, but in its opening and reply briefs in this appeal, NMN changed course and suggested this claim is subject to arbitration both under Article VI and Appendix C. NMN does not explain why it changed its position, nor does it address the feasibility, logistics, or practicality of subjecting one claim to two different arbitration proceedings in two separate venues.

5. The Inherently Contradictory Arbitration Provisions Reflect the Absence of an Agreement to Arbitrate

The fact that the third through tenth causes of action could arguably qualify as both Contractual Disputes and Statutory Disputes, depending on which provision of the CBA one focuses on, is fatal to NMN’s attempt to enforce those provisions. From a purely practical standpoint, a claim cannot be arbitrated using both Article VI’s union grievance and arbitration procedures and Appendix C’s AAA arbitration procedures. That would lead to inconsistent results. Moreover, interpreting the two arbitration provisions as simultaneously applying to the same claim would run contrary to the CBA’s provisions describing Article VI’s union grievance and arbitration procedures as the “exclusive” method for resolving Contractual Disputes and its provisions describing Appendix C’s AAA arbitration procedures as the “sole and exclusive remedy” for Statutory Disputes. (Italics added.)

Nor does the CBA support compelling arbitration of these claims in only one arbitration forum. That would require us to ignore the CBA provisions indicating the other arbitration procedure applies to that claim—a result that fails to give effect to every part of the CBA, as California contract interpretation rules require. (See Flores, supra, 7 Cal.App.5th at p. 9.) To illustrate, if we compelled Cervantes’s eighth cause of action for waiting time penalties based on section 203 to arbitration as a Contractual Dispute under Article VI, we would have to disregard the fact that claims under section 203 and state laws on wage payment qualify as Statutory Disputes. But if we compelled that claim to arbitration as a Statutory Dispute under Appendix C, we would need to disregard the fact that claims to enforce Article XVI.B.2, the CBA’s provision on waiting time penalties, qualify as Contractual Disputes.

In its supplemental briefing, NMN maintains that if both arbitration provisions apply to a given claim, the law favors carrying out the parties’ intentions and having “the arbitrator” decide what the CBA requires. According to NMN, “the arbitrator could then either (1) require that the respective provisions of Appendix C and Article VI be followed and, thereby, require two separate arbitrations, or (2) if the parties mutually agree, the assigned arbitrator could determine all claims in one arbitration.” But that argument begs the question, which “arbitrator” would decide these issues? The union’s Joint Adjustment Board (and, if necessary, an arbitrator selected from the Joint Adjustment Board’s arbitrator panel to resolve a deadlock) as described in Article VI’s union grievance and arbitration provisions, or an AAA arbitrator selected under Appendix C?

At oral argument, NMN cited Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406 (Dryer) to support its contention that the arbitrator must decide which provision applies. Its reliance on Dryer is misplaced. In Dryer, our Supreme Court held that a court ruling on a motion to compel arbitration under federal law has a “limited role” and should not “scrutinize the agreed-upon arbitration procedures for general fairness.” (Id. at p. 414.) Here, we are concerned not with the fairness of the CBA, but rather with the threshold issue of whether an agreement to arbitrate even exists. As already noted, that is an issue the court must decide, not an arbitrator. (Code Civ. Proc., § 1281.2; see also 9 U.S.C. § 4.)

Given the glaring inconsistences and inherent contradictions in the CBA’s competing arbitration provisions, we conclude NMN failed to prove the existence of an agreement to arbitrate. The trial court therefore should have denied the motion to compel in its entirety.

Our opinion in Flores supports this conclusion. In Flores, the employer sought to compel arbitration under an arbitration agreement that stated “‘all legal, equitable and administrative disputes [will be submitted] to the American Arbitration Association for mediation and binding arbitration . . . , except those actually covered by the grievance and arbitration procedure in the Agreement between [employer] and Teamster’s Local 692, hereinafter referred to as the “Collective Bargaining Agreement.” In other words, all disputes actually covered by the Collective Bargaining Agreement shall be determined according to the terms and conditions of said Agreement, exclusively. All disputes not within the scope of the Collective Bargaining Agreement are covered by this agreement.’” (Flores, supra, 7 Cal.App.5th at p. 4.)

We affirmed the trial court’s order denying the employer’s petition to compel arbitration. We reasoned the evidence “fail[ed] to reflect plaintiff’s agreement to submit her claims against defendants in the instant case to binding arbitration pursuant to its terms” (Flores, supra, 7 Cal.App.5th at p. 9), because, among other defects, the agreement did not “define which disputes would be subject to arbitration before the AAA, and which would be subject to resolution through the grievance and arbitration procedure contained in a collective bargaining agreement. . . . [¶] Defendants’ moving papers did not include any analysis addressing why plaintiff’s claims in the instant action were not subject to an arbitration provision in a collective bargaining agreement. . . . Given the dearth of defendants’ analysis and inconsistent positions, it is unclear which collective bargaining agreement defendants believe should be considered in interpreting the scope of the arbitration provision of the Agreement in this case.” (Id. at p. 10.)

We went on: “Viewing the Agreement as a whole [citation], the Agreement is ambiguous regarding (1) whether the arbitration provision of the Agreement (not a grievance and arbitration procedure of a collective bargaining agreement) applied to any or all of plaintiff’s claims against any or all of defendants in the instant action and (2) the governing rules and procedures for any such arbitration. We cannot conclude the parties reached agreement on the matter of submitting any or all of plaintiff’s claims to final and binding arbitration as contemplated by the Agreement. The trial court therefore did not err by denying the petition.” (Flores, supra, 7 Cal.App.5th at p. 11.)

The CBA provisions at issue here suffer from the same defects. The CBA is plagued by inherently contradictory arbitration provisions, making it unclear which arbitration scheme applies to which causes of action. NMN’s inconsistent positions over the course of the litigation only underscore that ambiguity. On this record, we cannot conclude the parties agreed to arbitrate Cervantes’s claims. In the absence of evidence the parties agreed to binding arbitration, NMN’s motion to compel arbitration must be denied.

DISPOSITION

We reverse the portion of the trial court’s order compelling arbitration of the first through seventh causes of action, affirm the portion of the order denying arbitration of the eighth through tenth causes of action, and remand this matter for further proceedings. Cervantes shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

GOETHALS, J.

WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.