Opinion
A146852
12-13-2018
MARISOL GUTIERREZ, Plaintiff and Respondent, v. FLYING FOOD GROUP LLC et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV 534006)
Plaintiff Marisol Gutierrez filed suit against her employer, defendant Flying Food Group LLC (FFG), asserting both common law claims and statutory employment discrimination claims. FFG filed a petition to compel arbitration, relying on a grievance procedure set forth in a collective bargaining agreement (CBA) between FFG and Gutierrez's union. The trial court denied the petition as to Gutierrez's statutory claims, and FFG appeals. We affirm because the court correctly determined the CBA does not include a clear and unmistakable agreement to arbitrate statutory discrimination claims.
I. BACKGROUND
According to Gutierrez's first amended complaint (FAC) and documents submitted by FFG in support of its petition to compel arbitration, Gutierrez began working for FFG in "food and liquor assembly" in the fall of 2012. At that time, Gutierrez joined Unite Here Union Local 2 (the Union), which represented certain classes of FFG employees pursuant to the CBA between FFG and the Union.
Gutierrez initiated the present action against FFG by filing a complaint in May 2015; she filed the FAC in August 2015. The FAC asserted causes of action for (1) sexual harassment and hostile work environment in violation of California's Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (j)); (2) failure to prevent sexual harassment in violation of FEHA (Gov. Code, § 12940, subd. (k)); (3) negligent hiring, retention, and/or supervision; (4) national origin discrimination in violation of FEHA (Gov. Code, § 12940, subd. (a)); (5) assault; and (6) battery.
The FAC names as defendants FFG and two of its employees. The petition to compel arbitration and the subsequent notice of appeal were filed on behalf of FFG and the two individual defendants. FFG's appellate briefs, however, focus only on Gutierrez's asserted obligation to arbitrate her claims against FFG, and we address only that question.
In September 2015, FFG filed a petition to compel arbitration and a motion to stay the action pending determination of the petition. FFG based its petition on provisions in the CBA between FFG and the Union setting forth a grievance procedure that includes binding arbitration. Gutierrez opposed the petition. A hearing on the petition was set for October 29, 2015.
The court issued a tentative ruling denying the petition as to Gutierrez's three statutory (FEHA) claims and granting it as to her three nonstatutory claims (negligent hiring, retention, and/or supervision; assault; and battery). Neither party opposed the tentative ruling, and the court adopted the ruling as its order in early November 2015. The court, relying on Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70 (Wright) and Vasquez v. Superior Court (2000) 80 Cal.App.4th 430 (Vasquez), declined to compel arbitration of the FEHA claims because it concluded the CBA did not contain "a clear and unmistakable agreement to arbitrate statutory discrimination claims." FFG appealed.
In light of the court's order compelling arbitration of her nonstatutory claims, Gutierrez filed on November 18, 2015 a second amended complaint that includes only her three FEHA claims. The nonstatutory claims are not at issue in this appeal.
II. DISCUSSION
"A petition to compel arbitration should be granted 'if [the court] determines that an agreement to arbitrate the controversy exists.' (Code Civ. Proc., § 1281.2.) When presented with a petition to compel arbitration, the trial court's first task is to determine whether the parties have agreed to arbitrate the dispute." (Vasserman v. Henry Mayo Newhall Memorial Hospital (2017) 8 Cal.App.5th 236, 244 (Vasserman).) "We apply de novo review to the trial court's interpretation of an arbitration agreement that does not involve conflicting extrinsic evidence." (Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th 1, 12 (Cortez).)
The CBA between FFG and the Union states in Article 14 ("Grievance Procedure") that "[a]ll complaints, disputes or grievances of whatsoever kind or nature arising between the Union and Employer concerning any provisions of the Agreement shall be settled in accordance with the following procedure," and then sets forth a multi-step process for employee grievances, culminating in binding arbitration. (The arbitration process itself is described in Article 15 of the CBA.) The parties dispute whether Article 14 (and certain other provisions in the CBA, which we discuss below) required Gutierrez to submit her statutory discrimination claims to arbitration rather than pursuing them in court.
The United States Supreme Court and the California Courts of Appeal have held that, when an arbitration clause appears in a CBA, there is a presumption that contractual matters under the CBA are arbitrable, i.e., the court must grant a petition to compel arbitration of a contractual dispute "as long as the CBA is reasonably susceptible to an interpretation in favor of arbitration." (Cortez, supra, 15 Cal.App.5th at p. 12, citing Wright, supra, 525 U.S. at pp. 78-79.) But this presumption does not apply to alleged statutory violations. (Wright, supra, 525 U.S. at pp. 78-79 [cases involving statutory claims "ultimately concern[ ] not the application or interpretation of any CBA, but the meaning of a . . . statute" and rights "distinct from any right conferred by" the CBA]; see 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, 258 (Penn Plaza); Cortez, supra, 15 Cal.App.5th at p. 12.)
Instead, the United States Supreme Court held in Wright that a CBA requirement to arbitrate a statutory employment discrimination claim must be "particularly clear." (Wright, supra, 525 U.S. at p. 79.) The Wright court also held that a waiver of an employee's right to have statutory employment discrimination claims heard in a judicial forum must be "clear and unmistakable" and that the court will not infer from a general contractual arbitration provision an intent to waive the statutorily protected right to a judicial forum unless the waiver is " ' "explicitly stated." ' " (Id. at p. 80.) More recently, in Penn Plaza, the Supreme Court stated that "[t]his Court has required only that an agreement to arbitrate statutory antidiscrimination claims be 'explicitly stated' in the collective-bargaining agreement." (Penn Plaza, supra, 556 U.S. at p. 258, quoting Wright, supra, at p. 80.)
Vasquez and subsequent California appellate decisions have followed Wright and have held that a CBA requirement to arbitrate statutory claims must be " ' "clear and unmistakable." ' " (Vasquez, supra, 80 Cal.App.4th at p. 434; accord, e.g., Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 543 (Mendez); Cortez, supra, 15 Cal.App.5th at p. 12; see Vasserman, supra, 8 Cal.App.5th at p. 245 ["Under the Wright/Vasquez standard, a CBA may require arbitration of a statutory claim if, in a waiver that is 'explicitly stated,' it is 'clear and unmistakable' that the parties intended to waive a judicial forum for statutory claims."].)
The Vasquez court stated: "We are aware of no California authority on the waiver sufficiency issue. However, the United States Supreme Court has recently addressed this issue in [Wright], supra, 525 U.S. at pages 79-81 . . . , and a number of federal courts have applied the holding of Wright to various collective bargaining agreement provisions. It is appropriate to apply federal law to this situation." (Vasquez, supra, 80 Cal.App.4th at p. 434.)
The CBA between FFG and the Union does not include an explicitly stated, clear and unmistakable waiver of a judicial forum for an employee's statutory claims. The Vasquez court said a "waiver in a collective bargaining agreement is sufficiently clear if it is found in an explicit arbitration clause. 'Under this approach, the [collective bargaining agreement] must contain a clear and unmistakable provision under which the employees agree to submit to arbitration all [state and federal statutory] causes of action arising out of their employment.' " (Vasquez, supra, 80 Cal.App.4th at p. 435.)
Because we conclude the CBA does not include a clear and unmistakable waiver, we do not address "whether a union may waive an individual's statutory rights under the circumstances presented here" (Vasserman, supra, 8 Cal.App.5th at pp. 244-245), an issue not raised by the parties. We note that, in Torrez v. Consolidated Freightways Corp. (1997) 58 Cal.App.4th 1247, 1259, the Sixth District held that "a union may not prospectively waive an employee's right to a judicial forum to hear his or her statutory discrimination claims." We followed Torrez in Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 48-49, stating in part that the fact the plaintiff there signed a CBA "along with other union members does not compel the inference that he personally was agreeing to arbitrate any state law claims he personally might have against his employer." (Id. at p. 49.)
The United States Supreme Court later held in Penn Plaza that a CBA provision that clearly and unmistakably requires union members to arbitrate claims under a federal antidiscrimination statute is enforceable as a matter of federal law. (Penn Plaza, supra, 556 U.S. at pp. 251, 256, 274.) Some California courts have applied this approach (Cortez, supra, 15 Cal.App.5th at p. 12; see Volpei v. County of Ventura (2013) 221 Cal.App.4th 391, 394), while others have found it unnecessary to address the question of enforceability because no clear and unmistakable waiver had occurred (Vasserman, supra, 8 Cal.App.5th at pp. 244-245, 250; see also Vasquez, supra, 80 Cal.App.4th at pp. 433-434).
Here, Article 14 (the provision stating which claims are subject to the grievance procedure) contains no such explicit waiver. As noted, Article 14 states "[a]ll complaints, disputes or grievances of whatsoever kind or nature arising between the Union and Employer concerning any provisions of the Agreement shall be settled in accordance with" the grievance procedure, which culminates in arbitration. Article 14 makes no reference to FEHA claims or other statutory claims; indeed, it specifies it applies only to disputes concerning provisions of the CBA. A court interpreting a CBA will not infer that a general arbitration provision such as this one includes an obligation to arbitrate statutory claims. (E.g., Wright, supra, 525 U.S. at p. 80 [CBA arbitration clause failed to meet the clear-and-unmistakable standard where the clause was "very general, providing for arbitration of 'matters under dispute,' . . . which could be understood to mean matters in dispute under the contract"]; Vasquez, supra, 80 Cal.App.4th at p. 435, fn. 4 [providing examples of "broad, general, unspecific arbitration clause[s]" that would be insufficient to constitute a clear and unmistakable waiver, such as "a clause requiring submission to arbitration of ' "all grievances or questions of interpretation arising under" ' " the CBA]; Vasserman, supra, 8 Cal.App.5th at p. 247 [CBA clause providing for arbitration of " 'any complaint or dispute arising out of the interpretation or application of a specific Article and Section of this Agreement' " did not require arbitration of statutory claims].) Article 14, standing alone, does not include a clear and unmistakable waiver of an employee's right to prosecute statutory claims in a judicial forum.
FFG contends that Article 14, when read in conjunction with other provisions of the CBA, requires Gutierrez to arbitrate her statutory discrimination claims. FFG cites Vasquez, in which the court stated that even where a waiver is not included in the arbitration clause itself, "[a] waiver in a collective bargaining agreement may also be sufficiently clear if broad, nonspecific language in the arbitration clause is coupled with 'an "explicit incorporation of statutory antidiscrimination requirements" elsewhere in the contract. [Citation.] If another provision, like a nondiscrimination clause, makes it unmistakably clear that the discrimination statutes at issue are part of the agreement, employees will be bound to arbitrate their [state and federal statutory] claims.' " (Vasquez, supra, 80 Cal.App.4th at p. 435.)
Some courts have suggested this more lenient "alternative formulation" of the waiver test is based on the Vasquez court's adoption of a branch of lower federal court authority that has not been widely followed. (Mendez, supra, 220 Cal.App.4th at p. 545, fn. 5; see Vasserman, supra, 8 Cal.App.5th at p. 248, fn. 5.) "We express no opinion on the general applicability of this version of the clear and unmistakable test. Here, we hold that even if this more permissive standard is applicable, the language of the [FFG] CBA does not meet it." (Vasserman, supra, 8 Cal.App.5th at p. 248, fn. 5.)
FFG argues Article 7 of the CBA ("Non-Discrimination") supports a finding of a clear and unmistakable waiver of the right to a judicial forum for statutory discrimination claims. Article 7 provides in part: "The Employer and the Union agree that no employee shall be unlawfully discriminated against in any manner pertaining to hiring, wages, hours and working conditions because of [national] origin, race, color, religion, sex, sexual orientation, marital status, disability, or because of his seeking redress through the grievance procedure for alleged grievances or for legitimate union activities or for rights guaranteed the employee by the National Labor Relations Act." FFG contends Article 14 (requiring arbitration of any grievance "concerning any provisions of the Agreement") incorporates the nondiscrimination provision in Article 7 and thus requires Gutierrez to arbitrate her FEHA claims.
In addition to relying on Article 7 of the CBA, FFG refers to Article 1 (which states in part that the parties intend "to set forth the entire agreement" about "conditions of employment") and Article 12 (which states in part that employees may be disciplined for "[i]nsubordination," "[v]erbal abuse of any Company, Supervisor, Manager, Guest or Customer," "[a]ny physical conditions which endanger the health of a guest, fellow employee or of the employee himself/herself," and "[a]ny other violation of gross misconduct"). We are not persuaded these latter provisions support a conclusion that the CBA includes a clear and unmistakable waiver of the right to pursue statutory discrimination claims in a judicial forum.
We disagree. A general reference to complying with antidiscrimination laws is not an explicit incorporation of FEHA. (Mendez, supra, 220 Cal.App.4th at p. 545.) "At a minimum, the agreement must specify the statutes for which claims of violation will be subject to arbitration." (Id. at p. 546; accord, Vasserman, supra, 8 Cal.App.5th at p. 248; see Cortez, supra, 15 Cal.App.5th at pp. 13-15 ["[o]rdinarily, . . . the failure to cite the statute at issue in the arbitration provision itself is fatal to any claim that the waiver of the right to enforce the statute in court is clear and explicit"; where CBA provision expressly stated that any dispute arising from a specified Industrial Welfare Commission wage order (Wage Order 16) was to be processed under the CBA's arbitration procedure, there was a clear and unmistakable agreement to arbitrate Labor Code claims that sought to enforce the protections in Wage Order 16].)
The Vasquez court explained that a contractual commitment not to discriminate on the basis of national origin " 'under applicable federal and state law,' " along with general language that all disputes with respect to the application of the terms of the CBA were subject to the grievance and arbitration procedure, did not meet the clear-and-unmistakable test. (Vasquez, supra, 80 Cal.App.4th at pp. 433, 436.) Similarly, here, there is a contractual commitment not to discriminate "unlawfully," but there is "no express provision that the antidiscrimination commitment is subject to the grievance and arbitration provisions," and FEHA is "not even mentioned." (Vasquez, supra, 80 Cal.App.4th at p. 436; see Mendez, supra, 220 Cal.App.4th at p. 546; see also Wright, supra, 525 U.S. at p. 81 [CBA language referring to compliance with statutes "is not the same as making compliance with the ADA a contractual commitment that would be subject to the arbitration clause"].) Even under the more permissive alternative test suggested by Vasquez, the CBA here contains no clear and unmistakable agreement to arbitrate Gutierrez's FEHA claims.
FFG contends two United States Supreme Court cases—Penn Plaza and AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 (Concepcion)—modify or undercut the high court's decision in Wright and the California case law outlined above and support reversal of the trial court's order denying arbitration of Gutierrez's statutory claims. We disagree. As noted, in Penn Plaza, the court held that, if a CBA includes a clear and unmistakable agreement that union members will arbitrate federal statutory discrimination claims, the agreement is enforceable. (Penn Plaza, supra, 556 U.S. at pp. 251, 256.) The Penn Plaza court did not abrogate or modify the clear-and-unmistakable standard announced in Wright. To the contrary, the Penn Plaza court expressly affirmed that the Wright standard applies in determining whether an arbitration provision in a CBA encompasses statutory claims. (Penn Plaza, supra, 556 U.S. at pp. 251, 258, 274.)
Concepcion also provides no basis for reversal here. In Concepcion, the United States Supreme Court held California's "Discover Bank rule" (which specified that the waiver of class arbitration in certain consumer adhesion contracts was unconscionable and therefore unenforceable) was preempted by the Federal Arbitration Act (FAA). (Concepcion, supra, 563 U.S. at pp. 340, 344, 352.) The Concepcion court focused in part on section 2 of the FAA, which provides that (in contracts covered by the FAA) an arbitration clause is "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (9 U.S.C. § 2; Concepcion, supra, 563 U.S. at pp. 339-340, 343.) The court concluded the Discover Bank rule did not fall within the saving clause of section 2 of the FAA and was preempted by the FAA because it presented an obstacle to the accomplishment of the FAA's objectives. (Concepcion, supra, 563 U.S. at pp. 343, 344-345, 352.)
In addition to joining the majority opinion in Concepcion, Justice Thomas wrote a concurring opinion, in which he stated, "As I would read it, the FAA requires that an agreement to arbitrate be enforced unless a party successfully challenges the formation of the arbitration agreement, such as by proving fraud or duress." (Concepcion, supra, 563 U.S. at p. 353 [conc. opn. of Thomas, J.].) In its appellate briefs, FFG incorrectly attributes this statement to the court majority.
The present case, unlike Concepcion, does not involve any issue concerning the enforceability of an agreement to arbitrate. Instead, this case turns solely on the interpretation of an arbitration clause and the CBA in which it is found. As discussed, applying the interpretive rules set forth by the United States Supreme Court in Wright and by the California courts, we conclude the CBA here includes no agreement (enforceable or otherwise) to arbitrate statutory discrimination claims. Concepcion does not assist FFG's challenge to the trial court's order here. (See Mendez, supra, 220 Cal.App.4th at pp. 546-547 [rejecting argument that Concepcion impliedly overruled Vasquez].)
III. DISPOSITION
The order denying FFG's petition to compel arbitration of Gutierrez's three statutory claims is affirmed. Gutierrez shall recover her costs on appeal.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.