Wilson-Davis v. SSP America, Inc. CA2/3 ( 2021 )

Filed 3/11/21 Wilson-Davis v. SSP America, Inc. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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8.1115(b). This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TRAMON WILSON-DAVIS, B306781
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV08579)
v.
SSP AMERICA, INC. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Elihu M. Berle, Judge. Affirmed.
Littler Mendelson, Denise M. Visconti and Christina H.
Hayes for Defendants and Appellants.
Aegis Law Firm, Kashif Haque, Jessica L. Campbell and
Ali S. Carlsen for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff Tramon Wilson-Davis (plaintiff), individually and
on behalf of a putative class, sued his employers, defendants
SSP America LAX, LLC (SSP LAX) and SSP America, Inc.
(SSP Inc.) (collectively, SSP) for violations of various provisions of
California’s wage and hour laws. SSP moved to compel
arbitration pursuant to the collective bargaining agreement
between it and the labor union representing plaintiff. The trial
court denied the motion to compel arbitration, and SSP appealed.
We affirm. The collective bargaining agreement between
SSP and the union provides for arbitration of claims arising
under the agreement, but it does not waive the right to a judicial
forum for claims based on statutes. The trial court therefore
correctly denied SSP’s motion to compel arbitration.
FACTUAL AND PROCEDURAL BACKGROUND
SSP Inc. operates food, beverage, and concessions services
in airports around the country, including in California.
SSP LAX, which operates out of the Los Angeles International
Airport, is a subsidiary of SSP Inc. Plaintiff was employed by
SSP LAX as a dishwasher beginning in August 2018.
A. The Collective Bargaining Agreement
In December 2018, SSP Inc. and Unite Here Local 11, a
labor union (the union), entered into a collective bargaining
agreement covering “certain employees of [SSP],” including
dishwashers, “at Los Angeles International Airport.”1
1 SSP LAX is not a party to the collective bargaining
agreement; nonetheless, all parties appear to agree that the
claims against it are subject to the agreement. It also appears
undisputed that although plaintiff did not personally sign the
collective bargaining agreement, he was bound to its terms
through his union.
2
Article 10 of the collective bargaining agreement, titled
“Grievance Procedure,” sets out a process for resolving disputes
between employees and SSP. Paragraph 10.1 defines a
“grievance” as “any claim or dispute between the Employee and
the Union or between the Employer and any employee which
involves interpretation, application or enforcement of this
Agreement disputed between the parties.” Paragraph 10.2
requires that “[a]ll grievances must be filed and processed in
accordance with the following exclusive procedure”—namely:
“a. The employee or Union that has a grievance shall
discuss his Grievances with his supervisor or the Manager within
fifteen days of the occurrence or of the time the Grievant should
have reasonably had knowledge of the occurrence which gave rise
to the grievance. The Grievant has the right to request the
presence of a Union Representative at this Step One meeting.
Similarly, Employer grievances must be discussed with the
Union within said fifteen days.
“b. If the grievance is not settled in the Step One
meeting, the grievance may be appealed by the employee or the
Union to Step Two by filing a written grievance with the General
Manager or his designated representative within ten days of the
Step One meeting. Each written grievance must set forth the
facts giving rise to it, any additional facts relied upon, the Section
or Sections of the Agreement alleged to have been violated and
the remedy or correction desired. Within five days after the filing
of the written grievance, the General Manager or his designated
representative will meet with the Union in an attempt to settle
the grievance. The Company shall submit a written response to
the grievance within ten days of the Step Two meeting . . . .”
3
Paragraph 10.3 provides that if the grievance is not
resolved through the Step Two meeting, “it may be submitted . . .
for non-binding mediation. Both parties must agree in writing in
order for a grievance to be so mediated.”
Article 11 of the collective bargaining agreement is titled
“Arbitration.” In relevant part, it provides as follows:
“11.1 In the event the Union or the Employer desires to
pursue or grieve to arbitration, they shall so notify the other
party in writing within fifteen days from receipt of the written
response after the Step Two meeting, or, in the event of
mediation pursuant to Section 10.3, within fifteen days after the
mediation hearing.
“11.2 If the grievance is not settled on the basis of the
foregoing procedures, the Union or the Employer may submit the
issue, in writing, to final and binding arbitration. Whichever
party filed the grievance shall then have seven (7) days from the
date of the letter of intent to arbitrate, to request a panel of
arbitrators . . . .
“11.3 Before submission of the grievance to the
arbitrator, the parties shall set forth in writing specifically the
issue or issues to be submitted to arbitration and the arbitrator
shall confine his decision to such stipulation of issue or issues. If
the stipulation of issue or issues has not been arrived at by the
parties at the time the arbitrator is present to hear the case, the
original grievance and the written decision and appeals
submitted during the processing of the grievance shall be used
and considered as the subject matter for the issues of the
case. . . . [¶] . . . [¶]
“11.8 Arbitrators shall have no authority to amend, alter,
add to or subtract from the terms of the Agreement.
4
“11.9 All arbitration decisions shall be final and binding
on the parties.”
B. The Present Action
Plaintiff, individually and on behalf of a putative class,2
filed the present action against SSP on March 13, 2019. Plaintiff
asserted eight causes of action: (1) failure to pay minimum
wages (Lab. Code,3 §§ 1194, 1197); (2) failure to pay overtime
wages (§§ 510, 1198); (3) failure to provide meal breaks (§§ 226.7,
512); (4) failure to permit rest breaks (§ 226.7); (5) failure to
reimburse business expenses (§§ 2800, 2802); (6) failure to
provide accurate itemized wage statements (§ 226); (7) failure to
pay all wages due upon separation of employment (§§ 201–203);
and (8) unlawful business practices (Bus. & Prof. Code, §§ 17200
et seq.).
SSP removed the action to federal court, asserting that
federal jurisdiction existed under the federal Labor Management
Relations Act (LMRA) (29 U.S.C. §§ 151 et seq.) because resolving
the dispute would require interpreting the collective bargaining
agreement. The district court disagreed and remanded the case
to state court. It explained that while the LMRA gives federal
courts exclusive jurisdiction of suits “for violation of contracts
between an employer and a labor organization” (29 U.S.C. § 185,
subd. (a), italics added), none of plaintiff’s claims alleged a
2 The putative class was defined as “[a]ll California citizens
currently or formerly employed by [SSP] as non-exempt
employees in the State of California within four years prior to the
filing of this action to the date the class is certified.”
3 All subsequent undesignated statutory references are to
the Labor Code.
5
violation of a labor contract. Moreover, the court said, the
collective bargaining agreement’s language did not contain a
“ ‘clear and unmistakable’ waiver” of the employees’ rights to
pursue their claims in a judicial forum. It explained: “The CBA
makes clear that its grievance and arbitration procedures apply
only to claims that involve ‘interpretation, application or
enforcement of th[e] [CBA].’ (CBA, art. 10.1.) Plaintiff’s claims,
brought specifically under state law, involve neither.” The court
thus concluded that it did not have subject matter jurisdiction
over plaintiff’s claims. (Wilson-Davis v. SSP America, Inc. (C.D.
Cal. 2020) 434 F.Supp.3d 806, 810, 818.)
Following remand, plaintiff filed a first amended complaint.
The amended complaint repeated the allegations from the
original complaint and added a new cause of action for
enforcement of the Private Attorney General Act (PAGA)
(§§ 2698 et seq.).
C. Motion to Compel Arbitration
On March 13, 2020, SSP filed a motion to compel
arbitration of plaintiff’s claims. SSP urged: (1) the Federal
Arbitration Act (FAA) governed plaintiff’s claims; (2) whether
plaintiff’s claims were subject to arbitration was to be decided by
an arbitrator, not the court; and (3) the collective bargaining
agreement contained a clear and unmistakable agreement to
arbitrate plaintiff’s individual claims. Defendants thus asked the
court to compel plaintiff to arbitrate his individual claims, and to
stay any further judicial proceedings pending the outcome of the
arbitration.
Plaintiff opposed the motion. He appeared to concede that
the FAA governed the arbitration agreement, but urged that
(1) the parties did not delegate the issue of arbitrability to the
6
arbitrator, and (2) the collective bargaining agreement did not
require arbitration of claims, like plaintiff’s, that alleged
violations of California law, rather than of the collective
bargaining agreement. Plaintiff thus urged that none of his
claims was subject to arbitration.
The trial court denied the motion to compel arbitration.
The court explained that the collective bargaining agreement did
not contain a “ ‘clear and unmistakable’ waiver” of the rights to
have either arbitrability or plaintiff’s substantive claims decided
by a court. Thus, it concluded, “there exists no agreement to
arbitrate the statutory claims at issue in this case.”
Defendants timely appealed from the order denying the
petition to compel arbitration.4
DISCUSSION
When a dispute arises between parties to an arbitration
agreement, the parties may disagree about two issues that must
be addressed prior to resolving the merits of the dispute. First,
parties may disagree about “the threshold arbitrability
question—that is, whether their arbitration agreement applies to
the particular dispute.” (Henry Schein, Inc. v. Archer and White
Sales, Inc. (2019) __ U.S. __ [139 S.Ct. 524, 527] (Schein);
Sandoval-Ryan v. Oleander Holdings LLC (2020) 58 Cal.App.5th
217, 223 (Sandoval-Ryan).) Second, parties may disagree about
who—the court or the arbitrator—has the power to decide
whether the dispute is arbitrable. (See First Options of Chicago
v. Kaplan (1995) 514 U.S. 938 (First Options).)
4 An order denying a petition to compel arbitration is an
appealable order. (Code Civ. Proc., § 1294, subd. (a).)
7
Both questions are before us in the present case. First,
SSP contends that the trial court erred in deciding the question
of arbitrability because the collective bargaining agreement
delegated resolution of that issue to the arbitrator. Second, SSP
urges that even if the trial court had the power to decide
arbitrability, it erred in concluding that plaintiff’s claims were
not arbitrable under the plain language of the collective
bargaining agreement.
Because the basic facts underlying SSP’s motion to compel
arbitration are undisputed, this appeal presents a purely legal
issue, which we review de novo. (Moritz v. Universal City Studios
LLC (2020) 54 Cal.App.5th 238, 245; see also Robertson v. Health
Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425 [if
court’s denial of motion to compel arbitration rests solely on a
decision of law, “then a de novo standard of review is employed”].)
I.
The Trial Court Correctly Concluded That
Under the Terms of the Collective Bargaining
Agreement, Arbitrability Was a Question for
the Court, Not the Arbitrator
A. Governing Principles5
Courts presume that the parties intend courts, not
arbitrators, to decide threshold issues of arbitrability. (Sandoval-
Ryan, supra, 58 Cal.App.5th at p. 223; Aanderud v. Superior
Court (2017) 13 Cal.App.5th 880, 891 (Aanderud).) Thus, the
5 SSP asserts, and plaintiff does not dispute, that the
Federal Arbitration Act (FAA) governs the arbitration agreement
at issue. For purposes of this appeal, therefore, we will assume
without deciding that the FAA applies.
8
“ ‘gateway’ ” question of arbitrability—whether a collective-
bargaining agreement requires the parties to arbitrate the
particular grievance—“ ‘is an issue for judicial determination
[u]nless the parties clearly and unmistakably provide
otherwise.’ ” (Howsam v. Dean Witter Reynolds, Inc. (2002)
537 U.S. 79, 83; see also Schein, supra, 139 S.Ct. at p. 530 [court
will decide threshold issue of arbitrability unless agreement
delegates question to arbitrator by “ ‘clear and unmistakable’
evidence”]; Granite Rock Co. v. Teamsters (2010) 561 U.S. 287,
296 (Granite Rock) [“It is well settled . . . that whether parties
have agreed to ‘submi[t] a particular dispute to arbitration’ is
typically an ‘ “issue for judicial determination” ’ ”]; Sandoval-
Ryan, at p. 223 [to be effective, clause delegating issue of
arbitrability to arbitrator must be “clear and unmistakable”].)
Although SSP concedes that a court is required to
determine arbitrability unless an agreement “clearly and
unmistakably” delegates that question to an arbitrator, it urges,
citing the Ninth Circuit’s decision in United Bhd. of Carpenters &
Joiners of Am., Local No. 1780 v. Desert Palace, Inc. (9th Cir.
1996) 94 F.3d 1308, 1311 (Desert Palace), that a clear delegation
is present if a collective bargaining agreement contains a “broad
arbitration clause,” whether or not the agreement “specifically
mention[s] who decides arbitrability.” As we discuss, the law is
to the contrary.
The United States Supreme Court first discussed the
delegation issue in First Options, supra, 514 U.S. at pp. 944–945.
There, the court held that where an arbitration agreement is
“silen[t]” or “ambigu[ous]” on “the ‘who should decide
arbitrability’ point,” a “judge, not an arbitrator,” must resolve the
question. (Id. at pp. 945−946, italics added.) The court
9
explained: “[T]he ‘who (primarily) should decide arbitrability’
question . . . is rather arcane. A party often might not focus upon
that question or upon the significance of having arbitrators
decide the scope of their own powers. [Citation.] And, given the
principle that a party can be forced to arbitrate only those issues
it specifically has agreed to submit to arbitration, one can
understand why courts might hesitate to interpret silence or
ambiguity on the ‘who should decide arbitrability’ point as giving
the arbitrators that power, for doing so might too often force
unwilling parties to arbitrate a matter they reasonably would
have thought a judge, not an arbitrator, would decide.” (Id. at
p. 945.) Accordingly, the high court said, “[c]ourts should not
assume that parties agreed to arbitrate arbitrability unless there
is ‘clea[r] and unmistakabl[e]’ evidence that they did so.” (Id. at
p. 944.) Applying the “clear and unmistakable” standard, the
court said that because the arbitration agreement before it was
silent on the question of who should decide arbitrability, the issue
“was subject to independent review by the courts.” (Id. at p. 947.)
The following year, in Desert Palace, supra, 94 F.3d 1308, a
panel of the Ninth Circuit acknowledged First Options, but
concluded that its holding was limited to commercial arbitration
agreements. Desert Palace therefore held that in the context of a
collective bargaining agreement, “a broad arbitration clause—
even one that does not specifically mention who decides
arbitrability—is sufficient to grant the arbitrator authority to
decide his or her own jurisdiction.” (Id. at p. 1311.) In the case
before it, Desert Palace concluded that because the broad
arbitration clause in the collective bargaining agreement “does
not exclude arbitrability or jurisdictional disputes from the
arbitration process, . . . the district court was correct in requiring
10
the arbitrator, in the first instance, to decide the question of
arbitrability.” (Id. at p. 1310.)
Nearly 15 years after Desert Palace, the Supreme Court
considered arbitrability in the context of a collective bargaining
agreement in Granite Rock, supra, 561 U.S. at p. 291. There, the
court described the law as “well settled in both commercial and
labor cases that whether parties have agreed to ‘submi[t] a
particular dispute to arbitration’ is typically an ‘ “issue for
judicial determination,” ’ ” and it thus said that the union had
“overread[]” its precedents in suggesting that different rules
applied to labor and commercial arbitration agreements. (Id. at
pp. 296, 299, italics added. The court concluded: “Our cases
invoking the federal ‘policy favoring arbitration’ of commercial
and labor disputes apply the same framework. They recognize
that, except where ‘the parties clearly and unmistakably provide
otherwise,’ [citation], it is ‘the court’s duty to interpret the
agreement and to determine whether the parties intended to
arbitrate grievances concerning’ a particular matter.” (Id. at
p. 301, italics added.)
Recently, in SEIU Local 121RN v. Los Robles Reg’l Med.
Ctr. (9th Cir. 2020) 976 F.3d 849 (SEIU), the Ninth Circuit held
that the distinction drawn in Desert Palace between labor and
commercial arbitration agreements was inconsistent with
Granite Rock, and thus that Desert Palace was no longer good
law.6 The SEIU court reasoned that Granite Rock “expressly
6 SEIU is not cited in SSP’s opening brief. Plaintiff noted the
omission in his respondent’s brief and urged that Desert Palace
was no longer good law. In reply, SSP cited SEIU, but did not
acknowledge its conclusion that Desert Palace had been
abrogated.
11
rejected the notion that labor arbitration disputes should be
analyzed differently than commercial arbitration disputes.”
(SEIU, at p. 851, citing Granite Rock, supra, 561 U.S. at pp. 300–
301.) Thus, SEIU concluded, “the Supreme Court’s reasoning in
Granite Rock is clearly irreconcilable with Desert Palace, and
thus Desert Palace has been abrogated.” (SEIU, at p. 861.) The
court then considered whether, in the case at issue, there was
“ ‘clear and unmistakable’ ” evidence that the parties to the
collective bargaining agreement had agreed to arbitrate
arbitrability. The court noted that the agreement’s arbitration
provision tasked the arbitrator with resolving “any ‘dispute or
disagreement involving the interpretation, application or
compliance with specific provisions of [the CBA],’ ” but was
“otherwise silent as to the arbitrator’s authority to determine its
own jurisdiction.” Under these circumstances, the court said, “the
district court is responsible for determining whether the
grievance filed by SEIU is arbitrable.” (SEIU, at p. 861, italics
added.)
We agree with SEIU that Desert Palace is no longer good
law, and that under First Options and Granite Rock, arbitrability
must be decided by a court unless an arbitration provision
explicitly provides otherwise. We turn now to that question.
B. The Collective Bargaining Agreement Does Not
Clearly and Unmistakably Delegate the Question of
Arbitrability to an Arbitrator
SSP contends that the collective bargaining agreement
includes a “clear and unmistakable” delegation of threshold
arbitrability questions to the arbitrator, urging that “Article 10 of
the CBA requires a grievance procedure for ‘any claim or dispute
between . . . the Employer and any employee which involves
12
interpretation, application or enforcement of this [CBA],’ and
dictates that ‘all grievances must be filed and processed in
accordance with’ the CBA’s mandatory grievance and arbitration
procedures.” But having closely examined both Article 10, which
governs grievances, and Article 11, which governs arbitration, we
find no explicit delegation of the question of arbitrability to an
arbitrator.
SSP is correct that paragraph 10.1 broadly defines
“grievance” as “any claim or dispute between the Employer and
the Union or between the Employer and any employee which
involves interpretation, application or enforcement of this
Agreement.” But paragraph 10.1 is definitional, not directive:
While it defines “grievance,” it does not prescribe a method for
resolving the disputes thus defined.
Paragraphs 10.2 through 10.5 set forth an “exclusive
procedure” for resolving grievances, but that procedure does not
include arbitration. Instead, paragraphs 10.2 through 10.5
prescribe the following three-step process: (1) a discussion
between the employee and his or her manager (Step One); (2) the
submission of written grievance and response, followed by a
meeting between the General Manager and a union
representative (Step Two); and (3) optional non-binding
mediation. Arbitration is not described in paragraphs 10.2
through 10.5 as a step in the grievance process—indeed, those
paragraphs do not reference arbitration at all.7
7 The word “arbitration” appears only once in Article 10, in a
sentence directing that employees “awaiting the outcome of a
grievance or arbitration are to continue to follow the rules and
instruction of the Employer in the interim.”
13
Article 11 sets out an arbitration procedure, but it neither
mandates arbitration nor delegates the question of arbitrability
to an arbitrator. Significantly, paragraph 11.2 provides that the
union or SSP “may” submit unresolved grievances to arbitration,
but it nowhere suggests that unresolved grievances “must” be
submitted to arbitration. (See ¶ 11.2 [“If the grievance is not
settled on the basis of the foregoing procedures, the Union or the
Employer may submit the issue, in writing, to final and binding
arbitration”], italics added.) Moreover, nothing in Article 11
suggests that the arbitrator has exclusive province over questions
of arbitrability. To the contrary, the sole provision in Article 11
that addresses the scope of the arbitrator’s powers leaves it to the
parties to define the arbitrator’s authority. (¶ 11.3 [the arbitrator
“shall confine his decision” to only those issues the parties agree
“in writing specifically . . . to be submitted to arbitration”].)8
In short, we find nothing in Articles 10 or 11 that delegates
the question of arbitrability to an arbitrator. Instead, these
provisions appear to make arbitration permissive, not
mandatory, and to limit the arbitrator’s powers to only those
issues the parties have specifically agreed in writing to arbitrate.
8 In full, paragraph 11.3 provides: “Before submission of the
grievance to the arbitrator, the parties shall set forth in writing
specifically the issue or issues to be submitted to arbitration and
the arbitrator shall confine his decision to such stipulation of
issue or issues. If the stipulation of issue or issues has not been
arrived at by the parties at the time the arbitrator is present to
hear the case, the original grievance and the written decision and
appeals submitted during the processing of the grievance shall be
used and considered as the subject matter for the issues of the
case.”
14
None of the cases on which SSP relies suggests a different
result. As relevant here, in each of the cited cases, the
arbitration agreements expressly delegated to the arbitrator the
authority to resolve disputes concerning the agreements’
enforceability or applicability. For example, in Rent-A-Center,
West, Inc. v. Jackson (2010) 561 U.S. 63, 68 (Rent-A-Center), the
arbitration agreement stated that “ ‘[t]he Arbitrator . . . shall
have exclusive authority to resolve any dispute relating to the . . .
enforceability . . . of this Agreement including, but not limited to
any claim that all or any part of this Agreement is void or
voidable.’ ” (Italics added.) Similarly, in Aanderud, supra,
13 Cal.App.5th at p. 892, the arbitration agreement provided that
the parties “ ‘agree to arbitrate all disputes, claims and
controversies arising out of or relating to . . . (iv) the
interpretation, validity, or enforceability of this Agreement,
including the determination of the scope or applicability of this
Section 5 [the “Arbitration of Disputes” section]. . . .’ ” (Italics
added.) And, in Mohamed v. Uber Technologies, Inc. (9th Cir.
2016) 848 F.3d 1201, 1207–1208 (Mohamed), the arbitration
agreement provided that disputes subject to arbitration “include
without limitation disputes arising out of or relating to
interpretation or application of this Arbitration Provision,
including the enforceability, revocability or validity of the
Arbitration Provision or any portion of the Arbitration Provision.”
(Italics added; see also Southern California Dist. Council of
Laborers v. Berry Const., Inc. (9th Cir. 1993) 984 F.2d 340, 341
[arbitration of dispute mandated under collective bargaining
agreement providing that “ ‘all grievances or disputes arising
between [the parties] over the interpretation or application of the
terms of this Agreement shall be settled by [arbitration],’ ” italics
15
added].) Under these circumstances, the courts held that the
gateway questions of arbitrability had been delegated to the
arbitrators under the express language of the arbitration
agreements. (Rent-A-Center, at pp. 65, 68; Aanderud, at p. 892;
Mohamed, at p. 1209.)9
The present case is distinguishable. As we have said, the
collective bargaining agreement in the present case, unlike those
in Rent-A-Center, Aanderud, and Mohamed, does not specifically
delegate to an arbitrator the power to decide the agreement’s
enforceability or applicability. To the contrary, the collective
bargaining agreement here specifically limits the arbitrator’s
jurisdiction to only those issues the parties agree “in writing
specifically . . . to be submitted to arbitration.” As such, the trial
court correctly concluded that this is not a case in which the
parties “clearly and unmistakably” delegated the threshold issue
of arbitrability to an arbitrator, and thus the arbitrability
question is “subject to independent review by the courts.” (First
Options, supra, 514 U.S. at p. 947.)
9 United Steelworkers of America v. Enterprise Wheel & Car
Corp. (1960) 363 U.S. 593 (United Steelworkers), cited by
defendants for the proposition that “broad arbitration clauses
confer exclusive authority on the arbitrator to decide his or her
jurisdiction,” does not support it. United Steelworkers was an
appeal of an order enforcing an arbitration award, not an appeal
of an order granting a motion to compel arbitration, and thus the
question of arbitrability was not before the court.
16
II.
The Trial Court Correctly Concluded that
Plaintiff’s Claims Are Not Subject to Arbitration
A. Governing Principles
“On petition of a party to an arbitration agreement alleging
the existence of a written agreement to arbitrate a controversy
and that a party to the agreement refuses to arbitrate that
controversy, the court shall order the petitioner and the
respondent to arbitrate the controversy if it determines that an
agreement to arbitrate the controversy exists.” (Code Civ. Proc.,
§ 1281.2.)
The Supreme Court has held that where a collective
bargaining agreement contains an arbitration clause, courts will
presume that the parties intended to arbitrate claims arising
under the agreement itself. (Wright v. Universal Maritime
Service Corp. (1998) 525 U.S. 70, 78 (Wright).) That presumption
does not apply, however, where a dispute “concerns not the
application or interpretation of any CBA, but the meaning of
a . . . statute.” (Id. at pp. 78–79.) In that case, “[n]ot only is
[a plaintiff’s] statutory claim not subject to a presumption of
arbitrability; we think any CBA requirement to arbitrate it must
be particularly clear.” (Id. at p. 79.) In order for a waiver of the
employees’ rights to a judicial forum to be valid, therefore, a
collective bargaining agreement must “contain a clear and
unmistakable waiver of the covered employees’ rights to a judicial
forum” relating to the statutory claims alleged in the complaint.
(Id. at p. 82, italics added; see also Darrington v. Milton Hershey
School (3d Cir. 2020) 958 F.3d 188, 191 [“A collective bargaining
agreement can waive a judicial forum for union members’
statutory claims only if the waiver is clear and unmistakable”];
17
Lawrence v. Sol G. Atlas Realty Co., Inc. (2d Cir. 2016) 841 F.3d
81, 82 [“Collectively bargained agreements to arbitrate statutory
discrimination claims must be ‘clear and unmistakable’ ”].)10
SSP acknowledges the holding of Wright and its progeny,
but urges that the “clear and unmistakable” standard does not
apply to all statutory claims, but only to statutory discrimination
claims like those at issue in Wright. Cases applying Wright
consistently have concluded to the contrary, applying the “clear
and unmistakable” standard to a variety of statutory claims,
including to those arising under California’s wage and hour laws.
(E.g., Vasserman v. Henry Mayo Newhall Memorial Hospital
(2017) 8 Cal.App.5th 236, 246 (Vasserman) [applying “clear and
unmistakable” standard to alleged waiver of union members’
right to pursue California wage-and-hour claims in a judicial
forum]; Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th
1, 11–12 [same]; see also O’Brien v. Town of Agawam (1st Cir.
2003) 350 F.3d 279, 285 [applying “clear and unmistakable”
standard to dispute arising under federal Fair Labor Standards
Act]; Vega v. New Forest Home Cemetery, LLC (7th Cir. 2017)
856 F.3d 1130, 1134 [same].) Accordingly, we will compel
plaintiff to arbitrate his claims only if the collective bargaining
agreement in the present case contains a “clear and
unmistakable” waiver of the right to pursue statutory wage and
hour claims in a judicial forum.
10 Shearson/American Exp., Inc. v. McMahon (1987) 482 U.S.
220, 226–227 (Shearson) does not suggest to the contrary. The
issue in that case was whether Congress intended the Securities
Exchange Act or RICO to bar enforcement of all predispute
arbitration agreements, not whether the “clear and
unmistakable” standard applied to such agreements.
18
B. The Collective Bargaining Agreement Does Not
Contain a “Clear and Unmistakable” Waiver of
Plaintiff’s Right to Litigate His Statutory Wage and
Hour Claims in a Judicial Forum
“In determining whether there has been a sufficiently
explicit waiver, the courts look to the generality of the arbitration
clause, explicit incorporation of statutory . . . requirements, and
the inclusion of specific [statutes]. The test is whether a
collective bargaining agreement makes compliance with the
statute a contractual commitment subject to the arbitration
clause. (Wright, supra, 525 U.S. at pp. 80–81 [119 S.Ct. at
pp. 396–397]; see Austin v. Owens-Brockway Glass Container,
Inc. (4th Cir. 1996) 78 F.3d 875, 879–880.)” (Vasquez v. Superior
Court (2000) 80 Cal.App.4th 430, 434–435 (Vasquez).)
“ ‘Broad, general language is not sufficient to meet the level
of clarity required to effect a waiver in a [collective bargaining
agreement]. In the collective bargaining context, the parties
“must be particularly clear” about their intent to arbitrate
statutory . . . claims.’ (Carson v. Giant Food, Inc. (4th Cir. 1999)
175 F.3d 325, 331.) 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.’ (Carson, at p. 331.)” (Vasquez,
supra, 80 Cal.App.4th at pp. 435–436, fn. omitted.)
For at least two separate reasons, we conclude that the
collective bargaining agreement’s arbitration provision does not
19
contain a clear and unmistakable agreement to submit statutory
causes of action to arbitration.
First, nothing in the plain language of Articles 10 and 11
mandates arbitration of grievances. As we have said, Article 10
contains no reference to arbitration, and while Article 11 provides
that the union or SSP “may” submit unresolved grievances to
arbitration, it nowhere suggests that unresolved grievances
“must” be arbitrated. Nor is there any language in Article 10 or
Article 11 that either waives the right to a judicial forum to
resolve grievances nor identifies arbitration as the exclusive
means by which grievances may be resolved. As such, we find no
“clear and unmistakable” waiver of the right to litigate
grievances in a judicial forum.
Second, even were we to conclude that Article 11 required
the submission of some employee claims to arbitration, we could
not find that it requires arbitration of the claims alleged in this
case. By its plain language, Articles 10 and 11 apply only to
“grievances”—i.e., to “claim[s] or dispute[s] between the
Employer and the Union or between the Employer and any
employee which involve[] interpretation, application or
enforcement of this Agreement disputed between the parties.”
(Italics added.) Plaintiff’s first amended complaint, however,
does not allege any violations of “this Agreement”—i.e., of the
collective bargaining agreement itself. Instead, it alleges only
violations of the Labor Code and other statutes—specifically,
20
sections 119411 and 119712 (minimum wages), section 51013
(overtime pay), section 51214 (meal periods), section 226.715 (rest
11 “Notwithstanding any agreement to work for a lesser wage,
any employee receiving less than the legal minimum wage or the
legal overtime compensation applicable to the employee is
entitled to recover in a civil action the unpaid balance of the full
amount of this minimum wage or overtime compensation,
including interest thereon, reasonable attorney's fees, and costs
of suit.” (§ 1194, subd. (a).)
12 “The minimum wage for employees fixed by the commission
or by any applicable state or local law, is the minimum wage to
be paid to employees, and the payment of a lower wage than the
minimum so fixed is unlawful. This section does not change the
applicability of local minimum wage laws to any entity.” (§ 1197.)
13 “Eight hours of labor constitutes a day’s work. Any work in
excess of eight hours in one workday and any work in excess of 40
hours in any one workweek and the first eight hours worked on
the seventh day of work in any one workweek shall be
compensated at the rate of no less than one and one-half times
the regular rate of pay for an employee. Any work in excess of
12 hours in one day shall be compensated at the rate of no less
than twice the regular rate of pay for an employee. In addition,
any work in excess of eight hours on any seventh day of a
workweek shall be compensated at the rate of no less than twice
the regular rate of pay of an employee.” (§ 510, subd. (a).)
14 “An employer shall not employ an employee for a work
period of more than five hours per day without providing the
employee with a meal period of not less than 30 minutes . . . .”
(§ 512, subd. (a).)
15 “An employer shall not require an employee to work during
a meal or rest or recovery period mandated pursuant to an
21
breaks), section 280216 (reimbursement of business expenses),
section 22617 (duty to provide itemized wage statements), and
section 20118 (duty to pay all wages upon separation of
employment). As such, plaintiff’s claims do not involve the
“interpretation, application, or enforcement of” the collective
bargaining agreement, and thus they are not within the plain
language of Articles 10 and 11.
SSP acknowledges that plaintiff asserts exclusively
statutory violations, but it asserts that plaintiff’s claims
necessarily require application and enforcement of the collective
bargaining agreement because “each of [plaintiff’s] specific causes
applicable statute, or applicable regulation, standard, or order of
the Industrial Welfare Commission, the Occupational Safety and
Health Standards Board, or the Division of Occupational Safety
and Health.” (§ 226.7, subd. (b).)
16 “An employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in
direct consequence of the discharge of his or her duties, or of his
or her obedience to the directions of the employer, even though
unlawful, unless the employee, at the time of obeying the
directions, believed them to be unlawful.” (§ 2802, subd. (a).)
17 “An employer, semimonthly or at the time of each payment
of wages, shall furnish to his or her employee, either as a
detachable part of the check, draft, or voucher paying the
employee’s wages, or separately if wages are paid by personal
check or cash, an accurate itemized statement in writing . . . .”
(§ 226, subd. (a).)
18 “If an employer discharges an employee, the wages earned
and unpaid at the time of discharge are due and payable
immediately.” (§ 201, subd. (a).)
22
of action are governed by separately delineated sections of the
CBA, thus putting them within the ambit of the arbitration
provision.” Not so. Although there plainly is overlap between the
subjects covered by the Labor Code and the collective bargaining
agreement, none of the portions of the collective bargaining
agreement to which SSP directs our attention (Article 5 [“Hours
of Work and Overtime”], Article 14 [“Uniforms”], and Schedule A
[“Minimum Classification scales”]) specifically incorporates any of
the statutory provisions on which plaintiff’s causes of action are
based. Thus, the collective bargaining agreement cannot be read
to constitute a clear and unmistakable waiver of a judicial forum
for alleged violations of statutory rights. (See Choate v. Celite
Corp. (2013) 215 Cal.App.4th 1460, 1467 [“discussing a topic
while at the same time saying nothing about the statutory right
at issue does not affect a clear and unmistakable waiver of that
right”]; Vasserman, supra, 8 Cal.App.5th at p. 248 [if collective
bargaining agreement “mirror[s]” statutory requirement but does
not cite a statute, agreement “cannot be read to constitute a clear
and unmistakable waiver of a judicial forum for statutory
rights”]; compare Cortez v. Doty Bros. Equipment Co.,
supra,15 Cal.App.5th 1 [finding “explicit and unmistakable
agreement” to arbitrate where collective bargaining agreement
stated that “ ‘[a]ny dispute or grievance arising from this Wage
Order 16[] shall be processed under and in accordance with’ ”
arbitration procedure outlined in collective bargaining
agreement], italics added.)19
19 In its reply brief, SSP cites Gray v. Petrossian, Inc.
(C.D.Cal., Nov. 20, 2017, No. CV 17-6870-PSG (PJWx)) 2017 WL
8792671, for the proposition that “courts have already held that a
23
Further, notwithstanding some partial overlap between the
subjects covered by the Labor Code and the collective bargaining
agreement, the Labor Code and the agreement set out distinct
substantive requirements. For example, as of July 1, 2019, the
minimum wage for employees of large businesses in Los Angeles
County was $14.25 per hour ( [as of March 11, 2021] archived at
), but the bargained-for wage for
dishwashers under the collective bargaining agreement was
$15.75 per hour. Similarly, a “day’s work” under the Labor Code
is eight hours (§ 510, subd. (a)), while a “day’s work” under the
terms of the collective bargaining agreement is “seven and one-
half hours within eight hours.” And, an employee is entitled to
twice the regular rate of pay for any work in excess of 12 hours
under the Labor Code (§ 510, subd. (a)), but is entitled to such
pay for any work in excess of eleven and one-half hours under the
collective bargaining agreement.
In short, while the collective bargaining agreement covers
some of the matters also addressed in the Labor Code, it does not
simply incorporate the Labor Code’s provisions. Adjudicating
substantively similar CBA containing an identical arbitration
provision evidenced a clear and unmistakable waiver of the right
to pursue claims in court.” While SSP correctly characterizes
Gray’s holding, we are not bound it, nor do we find it persuasive.
(Caliber Paving Co., Inc. v. Rexford Industrial Realty &
Management, Inc. (2020) 54 Cal.App.5th 175, 186–187 [Court of
Appeal “not bound by . . . any . . . decision of the federal district
courts and circuit courts of appeals”]; Southern California Pizza
Co., LLC v. Certain Underwriters at Lloyd’s, London etc. (2019)
40 Cal.App.5th 140, 151 [“[w]e are not bound by . . . federal
decisions”].)
24
plaintiff’s claims, therefore, will not require a court to
“interpret[],” “appl[y],” or “enforce[]” the collective bargaining
agreement.20
20 Because we so conclude, we need not address SSP’s
contention that any of plaintiff’s claims should be stayed pending
arbitration.
25
DISPOSITION
The order denying the petition to compel arbitration is
affirmed. Plaintiff is awarded his appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
26