Doers v. Golden Gate Bridge, Highway and Transp. Dist.

Decision Date25 May 1978
Parties, 98 L.R.R.M. (BNA) 2805 Lyle DOERS and Amalgamated Transit Union, Plaintiffs and Appellants, v. GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT, Defendant and Respondent. Civ. 40697.
CourtCalifornia Court of Appeals Court of Appeals

California Rural Legal Assistance, Jeffrey A. Walter, Santa Rosa, Neyhart & Anderson, Peter D. Nussbaum, San Francisco, for plaintiffs and appellants.

Duane B. Garrett, Paul A. Gordon, Hanson, Bridgett, Marcus, Milne & Vlahos, San Francisco, for defendant and respondent.

SCOTT, Acting Presiding Justice.

This is an appeal from an order denying appellants' petition to compel arbitration of a dispute arising from an agreement between respondent Golden Gate Bridge District (hereinafter "the District") and appellant Amalgamated Transit Union (hereinafter "the Union"). The issue presented is whether the provisions of a collective bargaining contract providing for arbitration of disputes is waived by an employee when he files a lawsuit against his employer regarding the dispute. We hold that the mere filing of a lawsuit does not constitute a waiver of the right to arbitrate. We therefore conclude that the trial court erred in denying appellants' petition to compel arbitration where the employee's lawsuit, filed in federal court, was dismissed for lack of subject matter jurisdiction.

Appellant Lyle Doers was employed by Greyhound Lines in May of 1967 as a baggage clerk. From June of 1970 to January of 1972 he worked at the Santa Rosa Greyhound terminal. During his employment he was a member of the Union. On or about January 1, 1972, respondent District began commute bus service from Santa Rosa to San Francisco. As a result, Greyhound began to cut down on its Santa Rosa terminal service and appellant was reduced from regular employment to relief employment. On or about March 1, 1973, Greyhound Lines converted its Santa Rosa terminal from a company operation to a "commission agency" operation. By agreement with the Union, regular Greyhound employees, excluding Doers, were transferred to positions with Greyhound in San Francisco. Since March 7, 1973, appellant has been employed in the Santa Rosa terminal. An attempt by appellant to obtain employment with the District was unsuccessful.

In connection with the District's operation of bus services it entered into an agreement with the Department of Transportation to receive funds under the Urban Mass Transit Act of 1964 (49 U.S.C. § 1601 et seq.) The District's receipt of funds under that act was conditioned upon the making of fair and equitable arrangements "to protect the interests of employees affected by such assistance." (49 U.S.C. § 1609(c).) On June 11, 1971, for the purpose of complying with the provisions of the Urban Mass Transit Act, the District entered an agreement with the Union providing job protection for affected employees of existing transportation systems who would be given first opportunity for comparable employment with the District. One provision of that agreement established the right to arbitration of disputes arising under the agreement.

On October 17, 1975, Doers filed a complaint in the United States District Court for the Northern District of California against the District and the Union, asserting grievances which are not necessary to relate to resolve the issues presently before us. The prayer for relief sought a declaration that he was improperly denied the protection set forth in the Urban Mass Transit Act, an injunction to order the District to offer him equivalent employment, and $100,000 in damages for willful violation of federal law and agreements made pursuant thereto.

The action was dismissed for lack of subject matter jurisdiction upon the motion of respondent. Thereafter, Doers and the Union jointly filed a petition in the superior court to compel arbitration pursuant to Code of Civil Procedure sections 1281.2 and 1290. This petition was based on the same grounds which gave rise to the federal action. The trial court denied the petition on the ground that appellants had waived the right to arbitration when Doers brought his action in federal court. 1 The court also concluded that the Union was bound by Doers' waiver because it was proceeding purely in a representative capacity in seeking arbitration.

Code of Civil Procedure section 1281.2 expressly provides that "the court shall order the petitioner (seeking arbitration) and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner . . . " (Emphasis added.) The petition to compel arbitration in this action alleged the existence of a written agreement to arbitrate and the refusal of the District to submit the controversy to arbitration. There is no dispute over the fact that an agreement to arbitrate existed. The only issue in controversy on this appeal is whether appellants have waived their right to compel arbitration.

Waiver of a contractual right to arbitration is ordinarily a question of fact and determination of this question, if supported by substantial evidence, is binding on an appellate court. (Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836, 52 Cal.Rptr. 1, 415 P.2d 816.) Under the general rule this question is left to the trial court where there is substantial evidence to support it. However, in cases where the record before the trial court establishes a lack of waiver as a method of law, the appellate court may reverse a finding of waiver made by the trial court. (See Seidman & Seidman v. Wolfson (1975) 50 Cal.App.3d 826, 123 Cal.Rptr. 873.)

At the outset, we recognize that several recent Court of Appeal cases have either stated or held that a party waives his contractual arbitration right by merely filing a lawsuit. (See, e. g., Maddy v. Castle (1976) 58 Cal.App.3d 716, 130 Cal.Rptr. 160; Gunderson v. Superior Court (1975) 46 Cal.App.3d 138, 120 Cal.Rptr. 35; Titan Enterprises, Inc. v. Armo Construction, Inc. (1973) 32 Cal.App.3d 828, 108 Cal.Rptr. 456; Schwartz v. Leibel (1967) 249 Cal.App.2d 761, 57 Cal.Rptr. 831.) However, an examination of the case authorities relied upon by these recent cases reveals a lack of justification or support for the holdings of the recent cases. Rather, examination of those older cases reveals only that waiver occurs when the merits of the dispute have been litigated by the parties.

The court in Maddy v. Castle, the most recent of these unsupported cases, based its holding entirely upon Gunderson v. Superior Court and Schwartz v. Leibel. In both Gunderson and Titan Enterprises, relied upon heavily by respondent, the courts relied solely upon Berman v. Renart Sportswear Corp. (1963) 222 Cal.App.2d 385, 35 Cal.Rptr. 218, and Case v. Kadota Fig Assn. (1950) 35 Cal.2d 596, 220 P.2d 912, for their holdings. In Schwartz v. Leibel, also cited by respondent, reliance was placed entirely upon Berman v. Renart Sportswear and Local 659, I. A. T. S. E. v. Color Corp. Amer. (1956) 47 Cal.2d 189, 302 P.2d 294.

In Berman v. Renart Sportswear cited by almost every case finding waiver in the filing of a complaint the Court of Appeal stated, for the first time, that waiver occurs by "bringing suit." This statement, however, was dictum, since the Berman court denied the petition for arbitration on other grounds. (222 Cal.App.2d at p. 389, 35 Cal.Rptr. 218.) Further, the Berman court relied exclusively on Case v. Kadota Fig Assn. for its articulation of the "bring suit" standard. Accordingly, the authority for the rule applied by the trial court must, if it exists at all, arise out of the Supreme Court decisions in Case v. Kadota Fig Assn., supra, 35 Cal.2d 596, 220 P.2d 912, Local 659, I. A. T. S. E. v. Color Corp. Amer., supra, 47 Cal.2d 189, 302 P.2d 294, and the cases cited therein. But the language contained in all of those cases is readily susceptible to exactly the opposite interpretation. In Seidman & Seidman v. Wolfson, supra, 50 Cal.App.3d 826, 123 Cal.Rptr. 873, for example, the court held that the mere filing of a lawsuit would not constitute a waiver of contractual arbitration rights. In so holding, the court distinguished Local 659 : (In Local 659 )

the court found a mutual rescission of the arbitration provision. Affirmance of the judgment dismissing the petition of arbitration after petitioner had already brought a legal action against defendant was based on more than merely the filing of the legal action. The court found there had been a repudiation of the arbitration provision and acceptance thereof by defendant.

(50 Cal.App.3d at p. 836, 123 Cal.Rptr. at p. 879; emphasis added.) Similarly, the court in Writers Guild of America, West, Inc. v. Screen Gems, Inc. (1969) 274 Cal.App.2d 367, 79 Cal.Rptr. 208, after finding Case v. Kadota Fig Assn. to be "directly in point" (at p. 371, 79 Cal.Rptr. 208), stated in dicta that there could be no waiver until the issue had gone to judgment on the merits (at pp. 372-373, 79 Cal.Rptr. at 208).

Therefore, closer examination of the precedents which are the genesis of the waiver rule is required to resolve the conflict between subsequent, and inconsistent, cases.

Local 659, the most recent Supreme Court case on this issue, involved the alleged breach of an employment contract containing an arbitration clause. Plaintiffs therein filed a criminal complaint with the Labor Commissioner rather than arbitrating the dispute. After judgment in the state proceeding, plaintiffs sought to arbitrate the dispute. The Supreme Court barred them from relitigating the issues, holding that there was a mutual rescission of the arbitration agreement. Without considering the effect of the state proceeding, it was nevertheless noted that

the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT