NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FELIPE ALVAREZ, on behalf of himself No. 20-56350 and others similarly situated, D.C. Nos. Plaintiff-Appellant, 2:12-cv-01374-TJH-E 2:16-cv-06173-TJH-E and

JERALD SHROEDER, MEMORANDUM*

Plaintiff,

v.

YRC INC., DBA YRC Freight; YRC

WORLDWIDE INC.; YELLOW

ROADWAY CORPORATION,

Defendants-Appellees.

JERALD SCHROEDER, on behalf of No. 21-55042 himself and others similarly situated, D.C. No. Plaintiff-Appellant, 2:12-cv-01374-TJH-E

v.

YRC INC., DBA YRC Freight; YRC

WORLDWIDE INC.; YELLOW

ROADWAY CORPORATION,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants-Appellees.

JERALD SHROEDER, on behalf of himself No. 21-55045 and others similarly situated, D.C. No. Plaintiff-Appellant, 2:16-cv-06173-TJH-E v.

YRC INC., DBA YRC Freight; YRC

WORLDWIDE INC.; YELLOW

ROADWAY CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding

Argued and Submitted March 11, 2022 Pasadena, California

Before: IKUTA, LEE, and FORREST, Circuit Judges. Partial Concurrence and Partial Dissent by Judge FORREST

Appellants Felipe Alvarez and Jerald Schroeder appeal the district court’s

summary judgment in favor of their former employer, YRC Inc. We have

jurisdiction under 28 U.S.C. § 1291 and review de novo. Parth v. Pomona Valley

Hosp. Med. Ctr., 630 F.3d 794, 798 (9th Cir. 2010). We affirm.

1. The Labor Management Relations Act (LMRA) does not preempt

Appellants’ second meal break claim. Section 301 of the LMRA preempts only

“claims founded directly on rights created by collective-bargaining agreements, and

2 also claims substantially dependent on analysis of a collective-bargaining

agreement.” Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 689 (9th Cir. 2001)

(en banc) (internal quotation marks and citation omitted). Further, we resolve “any

doubts concerning the scope of issues to be referred to arbitration in favor of

arbitration.” Columbia Exp. Terminal, LLC v. Int’l Longshore & Warehouse Union,

23 F.4th 836, 847 (9th Cir. 2022).

But here, the second meal break claim is not dependent on an analysis of the

CBA. The claim is that YRC failed to have a policy that on its face provided

employees a second meal break for certain shifts. The CBA, however, states that no

employee shall be compelled to take more than one meal break. The claim is not

substantially dependent on analyzing the CBA because the claim relates to YRC

providing a break, while the CBA addresses employees not being compelled to take

that break. And California law already gives employees the right to forego breaks

provided by an employer. See Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004,

1040–41 (Cal. 2012).

2. There is no genuine dispute of material fact that YRC’s meal break

policies were lawful. In Brinker, the California Supreme Court held that an

employer satisfies its obligation to provide meal breaks when it “relieves its

employees of all duty, relinquishes control over their activities and permits them a

reasonable opportunity to take an uninterrupted . . . break, and does not impede or

3 discourage them from doing so.” Id. at 1040. Appellants present no evidence that

YRC’s policies facially violate these obligations. They have repeatedly asserted that

YRC has an affirmative duty to provide second meal breaks, but no such duty exists.

See id.

Appellants also waived their alternative theory of the “unrecorded meal break

presumption.” See Donohue v. AMN Servs., LLC, 11 Cal. 5th 58, 75–77 (Cal. 2021)

(explaining the unrecorded meal break presumption). Issues not raised before the

district court are normally deemed waived. United States v. Flores-Montano, 424

F.3d 1044, 1047 (9th Cir. 2005). Appellants repeatedly asserted before the district

court that their theory of liability was that YRC’s policies, on their face, failed to

provide for a second meal break. In their motion for class certification and their trial

plan, they argued that YRC’s second meal break policies were facially invalid, and

thus that liability turned on the “uniform lawfulness or – unlawful absence – of

Defendants’ meal and/or rest period policies.”

In certifying the class, the district court found predominance because the

challenge was to YRC’s policies “on their face” rather than as applied. Although

Appellants briefly cited Justice Werdegar’s Brinker concurrence, their use of the

unrecorded second meal break data was supposedly “only offered to show that

damages can be calculated on a class-wide basis.” This is consistent with a litigation

strategy of trying to prove automatic liability across the class by attacking the policy,

4 rather than individually inquiring into whether each shift without a recorded second

meal break was because of YRC’s meddling or by choice of the worker. Having

chosen to pursue that strategy distinct from the presumption, Appellants have waived

the presumption.

3. The remaining independent claims brought by Appellants were waived

or abandoned. In Schroeder’s supplemental briefing before the district court, he did

not construe the auto-deduct claim as one of his remaining claims, nor do Appellants

offer any evidence to support it. They also expressly abandoned their untimely first

meal break claim and the drivers’ rest break claim. Finally, Appellants waived the

third rest break claim and the overtime claim by failing to offer any argument on

those claims.

4. Because Appellants’ second meal break and auto-deduct claims fail,

their remaining derivative claims also fail.

AFFIRMED.

5

FILED

Alvarez v. YRC Inc., 20-56350; Schroeder v. YRC Inc. 21-55042/21-55045 SEP 2 2022 FORREST, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority except as to its conclusion that Defendant-Appellee

YRC, Inc. is entitled to summary judgment on Plaintiffs-Appellants’ second-meal-

break claim.

Under California law, YRC must provide its employees meal breaks. Brinker

Rest. Corp. v. Superior Ct., 273 P.3d 513, 536 (Cal. 2012). The California Labor

Code specifies that “employers must generally provide employees with one 30-

minute meal period that begins no later than the end of the fifth hour of work and

another 30-minute meal period that begins no later than the end of the tenth hour of

work.” Donohue v. AMN Servs., LLC, 481 P.3d 661, 663 (Cal. 2021) (discussing

CAL. LAB. CODE § 512(a)). Employers are “not required to police meal periods to

make sure no work is performed,” id. at 675, but where their “records show no meal

period” when one was required, “a rebuttable presumption arises that the employee

was not relieved of duty and no meal period was provided,” id. at 672.

The central question for Appellants’ second-meal-break claim is whether a

policy that is silent—i.e., does not inform employees of their right to take a second

meal break—impedes their ability to take this break. Appellants’ theory is that

employees do not know that they have a right to take a second meal break unless

informed by YRC, and they argued to the district court at class certification and

summary judgment that evidence showing a uniform lack of recorded second meal 1 breaks on employee timecards supports their assertion that YRC’s silent policy is

facially invalid. To be precise, Appellants offered the unrecorded meal-break data

(that 99.9% of eligible shifts did not record a second meal break) as evidence that a

silent policy prevents employees from knowing about—and therefore having a

reasonable opportunity to take—a second meal break. Therefore, I conclude that

Appellants did not waive their ability to assert the unrecorded-meal-break

presumption.

This presumption does not create “‘automatic liability’ for employers”; it

shifts “the burden [to] the employer to plead and prove, as an affirmative defense,

that it genuinely relieved employees from duty during meal periods.” Id. at 674.

Here, it is not clear that rebutting this presumption would necessarily involve

individualized inquiry into employees’ shift records because YRC may be able to

present evidence that it had some form of policy or uniform practice of informing

employees about their right to second meal breaks despite the silent Collective

Bargaining Agreements and Employee Handbook. Indeed, YRC argues that it

provided sufficient notice about second meal breaks by posting the Wage Order

describing the right to these breaks at worksites and not interfering with employees

taking these breaks.1 Appellants counter that a material factual dispute exists as to

YRC cites several unpublished or non-binding cases for the proposition that 1

undisputed evidence of employers posting the California Wage Order at their

2 whether YRC posted the Wage Order at each of its locations. I agree with Appellants

that whether YRC can rebut the unrecorded-meal-break presumption is a factual

matter that precludes summary judgment. Accordingly, I would reverse and remand

the second-meal-break claim, as well as the related derivative claims, for the district

court to fully consider them in the first instance.

worksites alone satisfies the employer’s obligation to provide meal breaks. None of these cases involved unrecorded-meal-break evidence, and only one included an allegation that the employer failed to provide a break by adopting a policy that was silent about the timing of breaks. See Cole v. CRST Van Expedited, Inc., 842 F. App’x 162, 162–63 (9th Cir. 2021); Perez v. Performance Food Grp., Inc., No. LA CV17-00357 JAK (SKx), 2017 WL 6940526, at *7 (C.D. Cal. Dec. 15, 2017); Antemate v. Estenson Logistics, LLC, CV 14-5255 DSF (RAOx), 2019 WL 4670670, at *1, *5 (C.D. Cal. Sept. 25, 2019); Ontiveros v. Safelite Fulfillment, Inc., No. CV 15-7118-DMG (RAOx), 2017 WL 6261476, at *5 (C.D. Cal. Oct. 12, 2017); Perez v. Safety-Kleen Sys., Inc., 253 F.R.D. 508, 515 (N.D. Cal. 2008). 3