Vasserman v. Henry Mayo Newhall Memorial Hospital

Filed 2/7/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TANYA VASSERMAN, B267975
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC549185)
v.
HENRY MAYO NEWHALL
MEMORIAL HOSPITAL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jane L. Johnson, Judge. Affirmed.
Epstein Becker & Green, Michael S. Kun and Kevin D.
Sullivan for Defendant and Appellant.
Law Office of Joseph Antonelli, Joseph Antonelli and
Janelle C. Carney for Plaintiff and Respondent.
INTRODUCTION
Plaintiff Tanya Vasserman sued her former employer,
Henry Mayo Newhall Memorial Hospital (the Hospital) for
violations of the California Labor Code and other statutes
relating to meal and rest breaks, unpaid wages, and unpaid
overtime compensation. The Hospital argued that the collective
bargaining agreement relevant to Vasserman’s employment
required her to arbitrate her claims. The trial court denied the
Hospital’s motion to compel arbitration, and the Hospital
appealed.
We affirm. The dispute before us is not over Vasserman’s
substantive rights, but instead the forum in which those rights
are to be determined. If those rights are to be determined only by
arbitration, a collective bargaining agreement must make that
clear. The collective bargaining agreement here required
arbitration of claims arising under the agreement, but it did not
include an explicitly stated, clear and unmistakable waiver of the
right to a judicial forum for claims based on statute. The trial
court therefore correctly denied the Hospital’s motion to compel
arbitration.
BACKGROUND
A. Factual background
Vasserman worked as a registered nurse at the Hospital
from March 10, 2014 to April 3, 2014. The Hospital contends
that Vasserman’s employment was controlled by a collective
bargaining agreement (CBA) between the California Nurses
Association (CNA) and the Hospital (the CNA CBA).
Article 12 of the CNA CBA is titled “Grievance and
Arbitration.” It states, “For the purpose of this Agreement, a
grievance is defined as any complaint or dispute arising out of the
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interpretation or application of a specific Article and Section of
this Agreement during the term of this Agreement or extensions
thereof as to events or incidents arising only at the Hospital. No
grievance as defined above shall be considered under the
grievance procedure unless it is presented as provided in this
Article.” Article 12 describes a three-step grievance procedure
that must be initiated within 10 days of the occurrence giving
rise to the grievance. First, the nurse must present the grievance
in writing to his or her immediate supervisor and send a copy to
the director of human resources. The grievance “shall identify the
Article(s) and Section(s) of the Agreement at issue.” The
supervisor will hold a meeting with the nurse within 10 days. If
the grievance is not resolved at the first step, step two requires a
non-employee CNA representative to forward the grievance to the
director of human resources. The director of human resources
will hold a meeting with the CNA representative and/or the
nurse within 10 days. If the grievance is not solved in step two,
step three requires the CNA or the Hospital to “file the grievance
for binding arbitration with and pursuant to the rules of the
Federal Mediation and Conciliation Service.” “The jurisdiction of
the arbitrator shall not exceed those subjects indentified herein
in the original Step One grievance document.” In addition, “[t]he
arbitrator . . . shall be without authority to decide matters
specifically excluded or not included in this Agreement.”
Article 14 is titled “Compensation.” The overtime section of
Article 14 states that nurses are entitled to receive overtime pay
based on a formula that depends on whether they are assigned to
work 8, 10, or 12 hours in a day. Article 14 does not reference the
grievance procedure or any statutes, and it does not include any
discussion of remedies for violations.
3
Article 15 of the CNA CBA discusses meal and rest periods.
It states, “The Hospital will comply with the applicable Industrial
Welfare Commission Wage Order regarding meal periods, meal
period ‘waivers,’ missed meal period penalties, and ‘on-duty’ meal
period agreements.” If a nurse’s “right to a meal or rest period is
interfered with,” within 24 hours “he/she must provide his/her
supervisor with a written explanation as to why the meal or rest
period was missed.” Article 15 also states, “A Nurse shall be
provided a penalty equal to one hour of his/her base pay for any
day which his/her right to the appropriate meal and/or rest
period(s) are interfered with. A Nurse shall receive any and all
penalties provided for under this Article, the Labor Code or the
Wage Order no later than the pay period immediately following
the day resulting in the penalties. If a Nurse fails to receive any
penalty called for by this article, the Labor Code, or the Wage
Order the Nurse may file a Grievance pursuant to Article 12. . . .”
Vasserman did not allege that she filed any grievances for
alleged violations of the CNA CBA during her employment at the
Hospital.
B. Procedural background
Vasserman filed a class action complaint on June 18, 2014.
She asserted statutory claims on behalf of herself and five
putative classes of plaintiffs. She alleged that hourly employees,
without valid Labor Code exemptions, were required to work
shifts that exceeded eight hours per day and in excess of 80 hours
per pay period, and the Hospital failed to pay required overtime
wages for this work. Vasserman also alleged that the Hospital
did not provide required meal breaks, required workers to work
during meal breaks, and did not provide pay for missed meal
breaks in violation of the Labor Code. She further alleged that
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the Hospital did not provide itemized wage statements, and
inappropriately calculated wages through a “rounding policy” in
which calculations for time worked were rounded downward,
resulting in the Hospital’s failure to pay employees for actual
time worked.
Vasserman asserted seven causes of action, styled as
follows: (1) violation of Business and Professions Code section
17200, et seq.; (2) violation of Labor Code sections 204, 510, 1194,
and 1198; (3) violation of Labor Code section 200, et seq.; (4)
inaccurate wage statements under Labor Code section 226; (5)
failure to provide meal periods; (6) a claim under Labor Code
sections 2698 and 2699, as a private attorney general (PAGA);
and (7) failure to pay wages in violation of Labor Code sections
510, 1198, and 1199. Vasserman requested injunctive relief,
restitution, monetary damages, attorney fees, and civil penalties.
The Hospital removed the case to federal court, asserting
that the case involved a federal question. (See 28 U.S.C. §§ 1331,
1441(b).) The Hospital argued that federal courts have original
jurisdiction over claims relating to violations of CBAs, because in
such cases state law is preempted by section 301(a) of the federal
Labor Management Relations Act (LMRA).1 The Hospital also
contended that the federal court had jurisdiction under the Class
Action Fairness Act, 28 U.S.C. § 1332(d) (CAFA).
Vasserman moved to remand the case, and the United
States District Court for the Central District of California
1 “Title 29 United States Code section 185(a) codifies
section 301(a) of the Labor Management Relations Act. (Pub.L.
No. 101 (June 23, 1947) 61 Stat. 156.) Courts typically refer to
the statutory provisions at issue as section 301(a) rather than by
citation to the United States Code.” (Knutsson v. KTLA, LLC
(2014) 228 Cal.App.4th 1118, 1126.)
5
granted the motion. In a lengthy decision, the district court held
that Vasserman’s claims were not preempted by the LMRA:
“[T]he court concludes that Vasserman has alleged claims that
arise under state law, rather than the CBAs that governed her
employment and that of putative class members, and that
resolution of her claims will not substantially depend on
interpretation of those agreements. Accordingly, the court lacks
federal question jurisdiction.” (Vasserman v. Henry Mayo
Newhall Memorial Hosp. (C.D. Cal. 2014) 65 F.Supp.3d 932, 966.)
The district court also held that the Hospital “ha[d] not carried
its burden of proof regarding subject matter jurisdiction under
CAFA,” and therefore the court declined to exercise jurisdiction
on that basis. (Id. at p. 984.) The district court remanded the
case to the superior court.
Vasserman filed a first amended complaint on May 26,
2015. The amended complaint repeated the allegations from the
original complaint, and added new putative classes and
subclasses of plaintiffs. The amended complaint included a new
cause of action for failure to provide required rest periods.
Vasserman also added allegations that employees were required
to perform unpaid work before their hiring date, including
completing paperwork and attending a pre-hire physical
examination. The seven causes of action in the first amended
complaint were as follows: (1) violation of Business and
Professions Code section 17200, et seq.; (2) violation of Labor
Code sections 204, 510, 1194, and 1198; (3) violation of Labor
Code section 200, et seq.; (4) inaccurate wage statements under
Labor Code section 226; (5) failure to provide meal periods; (6)
failure to provide rest periods; and (7) a PAGA claim under Labor
Code sections 2698 and 2699. Again Vasserman sought
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injunctive relief, restitution, monetary damages, attorney fees,
and civil penalties.
The Hospital moved to stay the case and compel
arbitration.2 It argued that Vasserman and those she sought to
represent as class members were represented by two different
unions, the CNA and the United Electrical, Radio & Machine
Workers of America. The workers were covered by four different
CBAs, each of which included mandatory grievance and
arbitration provisions. The Hospital cited 14 Penn Plaza LLC v.
Pyett (2009) 556 U.S. 247 (14 Penn Plaza), arguing that as long as
an agreement to arbitrate statutory claims is “explicitly stated”
in the CBA, arbitration is required. The Hospital argued that the
CBAs at issue included mandatory grievance and arbitration
provisions relating to payment of overtime and meal and rest
periods, and therefore “[t]he CNA CBA governing Plaintiff’s
employment clearly and unmistakably requires arbitration of the
claims she has brought.” With its motion, the Hospital submitted
copies of each of the four CBAs applicable to putative class
members.
Vasserman opposed the motion. She argued that the CBAs
relevant to putative class members should not be considered,
because questions regarding the scope of the class would be
addressed in class certification proceedings. Vasserman also
argued that the CNA CBA did not include a clear and
unmistakable waiver of statutory rights because it made no
reference to the statutes identified in the complaint, and it
2 The Hospital also filed a demurrer to the complaint,
which the court overruled. The demurrer is not at issue on
appeal.
7
limited the arbitrator’s authority to deciding only issues relating
to the CNA CBA.
In its reply, the Hospital argued that references to the
Labor Code within various portions of the CNA CBA were
sufficient to constitute a clear and unmistakable waiver of
statutory claims. The Hospital noted that Article 15 of the CNA
CBA regarding meal periods specifically referenced Article 12’s
grievance and arbitration procedure. The Hospital also argued
that Vasserman’s “claim for overtime does not arise out of the
Labor Code; rather, it arises out of the terms of the CBA” and
therefore no reference to a code section was required to render
those claims arbitrable. The Hospital contended that
Vasserman’s additional claims, such as her wage statement and
PAGA causes of action, were derivative and also must be
arbitrated. The Hospital also argued that the claims of the
putative class members should also be held subject to mandatory
arbitration.
Following a hearing, the trial court issued a written ruling
denying the Hospital’s motion to compel arbitration. The court
cited Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, 434
(Vasquez), which held that to determine whether a waiver of
statutory claims in a CBA is sufficiently explicit, “the courts look
to the generality of the arbitration clause, explicit incorporation
of statutory . . . requirements, and the inclusion of specific . . .
provisions.” The trial court stated, “None of those indicia of
waiver is present here. While it does not appear to be necessary
to include references to specific Labor Codes to enforce a CBA
arbitration provision, more specificity is required to constitute a
‘clear and unmistakable’ waiver than the vague ‘any claim or
dispute’ language found in Defendant’s CBA arbitration
8
provision.” The court also noted that the district court held that
the CNA CBA did not include a clear and unmistakable waiver,
and stated that although the district court’s opinion was not
controlling, its reasoning was persuasive.
The Hospital timely appealed.
ANALYSIS
A. Governing principles
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. (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th
1497, 1505; Avery v. Integrated Healthcare Holdings, Inc. (2013)
218 Cal.App.4th 50, 59.) We review an order denying a petition
to compel arbitration for abuse of discretion unless a pure
question of law is presented, in which case we review the order de
novo. (Espejo v. Southern California Permanente Medical Group
(2016) 246 Cal.App.4th 1047, 1056-1057.) “[W]e apply general
California contract law to determine whether the parties formed
a valid agreement to arbitrate their dispute.” (Avery, supra, 218
Cal.App.4th at p. 60.)3
3 The Hospital argues that “[b]ecause the arbitration at
issue would arise from a CBA in interstate commerce, the
validity of any of its procedures is governed by federal law under
section 301 of the Labor Management Relations Act (LMRA).”
Even if we were to assume that interstate commerce were
implicated in a case involving state statutory employment claims
against a local employer, nothing in this appeal involves “the
validity of any of [the] procedures” under the CNA CBA. Instead,
the question before us is whether the parties agreed to arbitrate
9
California courts have held that “a union may not
prospectively waive an employee’s right to a judicial forum to
hear his or her statutory discrimination claims.” (Torrez v.
Consolidated Freightways Corp. (1997) 58 Cal.App.4th 1247,
1259 (Torrez); see also Deschene v. Pinole Point Steel Co. (1999)
76 Cal.App.4th 33, 49 (Deschene) [that the plaintiff 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.”].) As the Torrez
court explained, “In a collective bargaining agreement, the rights
at issue are those within the confines of the agreement itself, i.e.,
they are contractual. Although an individual employment
contract can address both contractual and statutory rights, a
collective bargaining agreement, by its very nature, may address
only the common, contractual rights of the members of the
bargaining unit.” (Torrez, 58 Cal.App.4th at p. 1258.) Neither
party addresses this precedent in their briefs.
Instead, the parties focus on the line of cases including
Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70(Wright) and Vasquez, supra, 80 Cal.App.4th 430. 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. (See Wright, supra, 525 U.S.
at p. 80; Vasquez, supra, 80 Cal.App.4th at p. 434; Flores v. Axxis
Vasserman’s statutory claims. We need not consider the federal
LMRA in answering this question. As the Ninth Circuit has
stated, “a court may look to the CBA to determine whether it
contains a clear and unmistakable waiver of state law rights
without triggering § 301 preemption.” (Cramer v. Consolidated
Freightways, Inc. (9th Cir. 2001) 255 F.3d 683, 692.)
10
Network & Telecommunications, Inc. (2009) 173 Cal.App.4th 802,
806 (Flores).)
The Vasquez court noted that Torrez and Deschene held
that unions could not waive individuals’ statutory rights to a
judicial forum. After so noting, the court analyzed the CBA
under the standard articulated in Wright and found that no
waiver occurred. (Vasquez, supra, 80 Cal.App.4th at pp. 433-
434.) We, like the Vasquez court, analyze the facts of this case
under the clear-and-unmistakable standard without deciding
whether a union may waive an individual’s statutory rights
under the circumstances presented here.
In a case involving alleged statutory violations, the
presumption of arbitrability that typically applies to contractual
disputes arising out of a CBA is not applicable. (Vasquez, supra,
80 Cal.App.4th at p. 434.) As the United States Supreme Court
explained in Wright, 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 collective-bargaining agreement.” (Wright, 525
U.S. at pp. 78-79.) In other words, a plaintiff such as Vasserman
asserts rights conferred to her and all workers under California
law, regardless of whether the employment occurred under the
terms of a CBA. Therefore, when a plaintiff has alleged statutory
violations, the “ultimate question” is “not what the parties have
agreed to, but what [applicable] law requires; and that is not a
question which should be presumed to be included within the
arbitration requirement.” (Id. at p. 79.)
“Not only is [a plaintiff’s] statutory claim not subject to a
presumption of arbitrability . . . any CBA requirement to
arbitrate it must be particularly clear.” (Wright, supra, 525 U.S.
11at p. 79.) This is required because the “right to a . . . judicial
forum is of sufficient importance to be protected against less-
than-explicit union waiver in a CBA.” (Id. at p. 80.) In order for
a waiver to be valid, therefore, a CBA 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.)4
4 Although the Hospital agrees that the clear and
unmistakable standard applies here, it nonetheless argues that
cases involving individual employment contracts are just as
controlling as those involving CBAs. It cites 14 Penn Plaza,
supra, 556 U.S. at p. 258, in which the Supreme Court stated,
“Nothing in the law suggests a distinction between the status of
arbitration agreements signed by an individual employee and
those agreed to by a union representative.” Read in context, it is
unclear whether “the law” the Court referenced in that quote was
the Age Discrimination in Employment Act of 1967 or more
generally applicable contract or arbitration law. Nonetheless, 14
Penn Plaza involved federal law and is not controlling here. The
Court in Wright clearly distinguished CBAs from individual
employment agreements. (See Wright, 525 U.S. at pp. 80-81 [the
“clear and unmistakable” standard was not applicable in a case
involving “an individual’s waiver of his own rights, rather than a
union’s waiver of the rights of represented employees”].) Vasquez
found the reasoning in Wright persuasive, and California courts
have since maintained a distinction between individual
employment contracts and CBAs. (See, e.g., Torrez, supra, 58
Cal.App.4th at p. 1259; Deschene, supra, 76 Cal.App.4th at pp.
46-49; Vasquez, supra, 80 Cal.App.4th at pp. 433-436; Flores,
supra, 173 Cal.App.4th at pp. 805-811.) We therefore do not rely
on cases involving individual employment contracts in
considering whether the clear-and-unmistakable standard has
been met here.
12
Vasquez followed Wright’s lead in interpreting a waiver of a
judicial forum for statutory rights in a CBA, relying on the clear
and unmistakable standard and requiring a union-negotiated
waiver of a judicial forum to be explicitly stated. (Vasquez, supra,
80 Cal.App.4th at p. 434.) Vasquez held that in determining
whether there has been a sufficiently explicit waiver, courts look
to the generality of the arbitration clause, explicit incorporation
of statutory requirements, and the inclusion of specific
contractual provisions. (Vasquez, supra, 80 Cal.App.4th at p.
434.) “The test is whether a collective bargaining agreement
makes compliance with the statute a contractual commitment
subject to the arbitration clause.” (Ibid.) Other California cases
have applied the Wright/Vasquez clear-and-unmistakable
standard. (See, e.g., Mendez v. Mid-Wilshire Health Care Center
(2013) 220 Cal.App.4th 534, 543-545 (Mendez); Flores, supra, 173
Cal.App.4th at pp. 805-807; Choate v. Celite Corporation (2013)
215 Cal.App.4th 1460, 1465 (Choate).)
B. The CNA CBA
The Hospital argues that “[b]ecause Plaintiff’s claims all
fall within the mandatory dispute resolution provisions of the
CNA CBA that governed her brief employment, she was required
to grieve and arbitrate them.” The question here, however, is not
whether the CNA CBA includes an arbitration agreement that
pertains to Vasserman’s employment; it undisputedly does.
Instead, the question is whether the CNA CBA includes an
explicitly stated, clear and unmistakable intent to waive the right
to a judicial forum for the statutory causes of action Vasserman
has alleged. We find that it does not.
The Vasquez court said a “waiver in a collective bargaining
agreement is sufficiently clear if it is found in an explicit
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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.’ [Citation.]” (Vasquez, supra, 80
Cal.App.4th at p. 435.)
Article 12 of the CNA CBA contains the grievance and
arbitration agreement. Article 12 defines a grievance as “any
complaint or dispute arising out of the interpretation or
application of a specific Article and Section of this Agreement.” It
describes the three-step procedure, including step three in which
any unresolved grievance may be submitted to arbitration.
Article 12 limits the power of the arbitrator such that the
arbitrator “shall be without authority to decide matters
specifically excluded or not included in this Agreement.” Article
12 does not include any reference to the California Labor Code or
any other state or federal statutes. It does not include any
agreement to submit statutory causes of action to arbitration.
Article 12 cannot be reasonably read to include an explicitly
stated, clear and unmistakable waiver of a judicial forum for
employees’ statutory claims. In Wright, the Court considered a
similar provision, in which the CBA “arbitration clause [was]
very general, providing for arbitration of ‘[m]atters under
dispute,’ . . . which could be understood to mean matters in
dispute under the contract.” (Wright, supra, 525 U.S. at p. 80.)
The Court held that the arbitration provision failed to meet the
clear-and-unmistakable standard. (Ibid.) Similarly, Vasquez
provided 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
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arbitration of ‘“‘all grievances or questions of interpretation
arising under’”’ the collective bargaining agreement. [Citation.]”
(Vasquez, supra, 80 Cal.App.4th at p. 436, fn. 4.) Article 12 is no
more specific. It makes no mention of the California Labor Code
or any other statute, it does not discuss individual statutory
rights, nor does it mention waiver of a judicial forum. Article 12,
standing alone, does not include a clear and unmistakable waiver
of Vasserman’s right to a judicial forum to bring statutory claims.
The Hospital argues that “specific Labor Code provisions
that are to be arbitrated [do] not have to be contained in the
arbitration provision.” The Hospital cites Vasquez, which held
that even where a waiver is not included in the arbitration clause
specifically, “[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.’ [Citation.]” (Vasquez, supra, 80 Cal.App.4th
at p. 435.)5
5 Division Seven of this court has characterized this
language in Vasquez as an “alternative formulation of the
collective bargaining agreement waiver test [that] has been
widely followed in the Fourth Circuit but much less so in other
jurisdictions.” (Mendez, supra, 220 Cal.App.4th at p. 546.) 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 CNA
CBA does not meet it.
15
According to the Hospital, Article 14 (compensation) and
Article 15 (meal and rest periods), read in conjunction with
Article 12, constitute a clear and unmistakable waiver relating to
the causes of action Vasserman asserts. Neither of these
provisions, however, clearly states that a right to a judicial forum
for alleged statutory violations has been waived.
Article 14 discusses overtime compensation, seniority pay,
and shift differential pay. It does not mention California law or
any other statutory requirements regarding worker pay. The
Hospital argues that Vasserman’s “wage claims are ‘grievances’
as defined within the CBAs” because they “require interpretation
of whether any rounded time and purported off-the-clock work
constitute ‘any time worked’ as that phrase is used within the
CBAs such that they are compensable.” Article 14 cannot
reasonably be read to include a clear and unmistakable waiver of
a judicial forum for statutory claims. To meet that standard,
“[a]t a minimum, the agreement must specify the statutes for
which claims of violation will be subject to arbitration.” (Mendez,
supra, 220 Cal.App.4th at p. 546.) Article 14 does not do so.
The Hospital argues that the “8 & 40 Overtime Plans”
described in Article 14 mirror the requirements in Labor Code
section 510, and that Labor Code section 514 allows exceptions
for alternative workweeks. This argument ultimately may be a
defense to Vasserman’s claims, but it does not compel a
conclusion that the CNA CBA includes a valid waiver.
“[D]iscussing a topic while at the same time saying nothing about
the statutory right at issue does not affect [sic] a clear and
unmistakable waiver of that right.” (Choate, supra, 215
Cal.App.4th at p. 1467.) Given the lack of any statutory citation
in Article 14, along with the definition of a “grievance” in Article
16
12 that does not include any suggestion that Labor Code
violations must be grieved and arbitrated, Articles 12 and 14
together cannot be read to constitute a clear and unmistakable
waiver of a judicial forum for statutory rights.
The Hospital also argues that Article 15, regarding meals
and rest periods, includes a clear and unmistakable waiver.
Article 15, subparagraph (C), states, “A Nurse shall receive any
and all penalties provided for under this Article, the Labor Code
or the Wage Order no later than the pay period immediately
following the day resulting in the penalties. If a Nurse fails to
receive any penalty called for by this article, the Labor Code, or
the Wage Order the Nurse may file a Grievance pursuant to
Article 12. . . .” The Hospital argues, “The reference to Wage and
Hour claims under the Labor Code or Wage Order is a sufficiently
‘clear and unmistakable’ agreement, as a matter of law, to
arbitrate plaintiff’s statutory meal and rest period claims.”
An employer’s agreement to pay a penalty required by law
is not the same thing as a union’s agreement to waive members’
rights to a judicial forum for statutory violations. In Vasquez, for
example, the plaintiff asserted claims under the Fair
Employment and Housing Act (FEHA) and the federal Americans
with Disabilities Act (ADA). The CBA stated that the parties
made a commitment not to discriminate “under applicable federal
and state law,” and the defendant argued that this required the
plaintiff to arbitrate his claims. (Vasquez, supra, 80 Cal.App.4th
at p. 436.) The court stated that to meet the clear-and-
unmistakable test, “[a] simple agreement not to engage in acts
violative of a particular statute will not suffice; the agreement
must establish the intent of the parties to incorporate ‘in their
entirety’ the [relevant] statutes. [Citation.] Compliance with a
17
particular statute must be an express contractual commitment in
the collective bargaining agreement. [Citation.]” (Vasquez,
supra, 80 Cal.App.4th at p. 435.) The court held that the CBA
did not meet that test: “[T]here is a contractual commitment not
to discriminate on the basis of national origin, but there is no
express provision that the antidiscrimination commitment is
subject to the grievance and arbitration provisions. Nor are the
ADA and the FEHA explicitly incorporated in the CBA. Indeed,
these statutes are not even mentioned.” (Id. at p. 436.)
Similarly, in Mendez, supra, the plaintiff asserted causes of
action under FEHA, and the defendant employer argued that the
applicable CBA included a clear and unmistakable waiver. The
CBA stated that the employer had a policy of being in compliance
with all applicable regulations, laws, and ordinances, and said
that employees were to be treated with dignity at all times.
(Mendez, supra, 220 Cal.App.4th at p. 545.) The Court of Appeal
held that “a collective bargaining agreement that contained a
broad arbitration clause coupled with general language about
complying with the law” was insufficient to pass the clear-and-
unmistakable waiver test. (Id. at p. 546.) The court followed
Vasquez and held that the CBA did not include a clear and
unmistakable waiver. (Mendez, supra, at p. 546.)
In Wright, the CBA stated that “[i]t is the intention and
purpose of all parties hereto that no provision or part of this
Agreement shall be violative of any Federal or State Law.”
(Wright, supra, 525 U.S. at p. 81.) The Court held that was not
an incorporation of statutory requirements, because simply
referencing compliance with statutes in a CBA “‘is not the same
as making compliance with the ADA a contractual commitment
that would be subject to the arbitration clause.’” (Ibid.)
18
Here, Article 15 states that the Hospital agrees to pay
penalties required by the Labor Code, but it does not make
compliance with the Labor Code an express contractual
commitment. Indeed, it mentions the Labor Code only in relation
to penalties; there is no incorporation of Labor Code provisions
relevant to required meal and rest breaks. In addition, Article 15
states that if a nurse fails to receive a penalty, he or she may file
a grievance as stated in Article 12. As discussed above, however,
Article 12 limits arbitration to grievances that consist of disputes
arising out of the CNA CBA, and it limits an arbitrator’s power to
that necessary to decide only issues that qualify as grievances.
Rather than expressly incorporating Labor Code provisions,
therefore, Article 15 impliedly excludes requirements not
included in the CNA CBA itself.
The broad, nonspecific language in the CNA CBA
arbitration clause is therefore not coupled with an explicit
incorporation of statutory requirements in Articles 14 or 15 of the
CBA. The CNA CBA did not include an expressly stated, clear
and unmistakable waiver of the right to a judicial forum for
individual statutory claims. The trial court properly denied the
Hospital’s motion to compel arbitration.
DISPOSITION
The ruling on the motion to compel arbitration is affirmed.
Vasserman is entitled to costs on appeal.
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
EPSTEIN, P. J. MANELLA, J.
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