United Public Employees v. City and County of San Francisco

• Decision Date: 28 February 1997
• Docket Number: No. A074223,A074223
• Citation: 62 Cal.Rptr.2d 440,53 Cal.App.4th 1021
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 2242, 97 Daily Journal D.A.R. 4032 UNITED PUBLIC EMPLOYEES, LOCAL 790, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Page 440

62 Cal.Rptr.2d 440

53 Cal.App.4th 1021, 97 Cal. Daily Op. Serv. 2242,

97 Daily Journal D.A.R. 4032

UNITED PUBLIC EMPLOYEES, LOCAL 790, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

No. A074223.

Court of Appeal, First District, Division 5, California.

Feb. 28, 1997.

As Modified March 26, 1997.

William A. Sokol, Clifford Stanley, Oakland, Van Bourg, Weinberg, Roger & Rosenfeld, for Plaintiff and Appellant.

Louise H. Renne, City Attorney, Vicki A. Clayton and Robin M. Reitzes, Deputy City Attorneys, for Defendant and Respondent.

JONES, Associate Justice.

United Public Employees, Local 790, (Local 790) appeals from the denial of its petition to compel the City and County of San Francisco (the City) to arbitrate a grievance pursuant to the governing collective bargaining agreement (the agreement). By this petition, Local 790 sought to arbitrate a grievance concerning the random selection of one of its members, David Turner, Jr. (Turner), a car cleaner for the City's Municipal Railway (MUNI), for drug testing. After an independent review of the agreement, we concur with the trial court's conclusion that this dispute was not subject to arbitration.

We base our resolution of this appeal on the preemptive effect of the Omnibus Transportation Employee Testing Act of 1991 (P.L. 102-143, Oct. 28, 1991) tit. V. 105 Stat. 952 (the Omnibus Act)), ¹ which requires drug and alcohol testing of employees who are required to perform "safety-sensitive" functions in the transportation industry. Federal regulations issued under the Omnibus Act state that employees whose jobs include the operation of transit vehicles are "safety-sensitive" employees who must be subject to testing. Turner was notified that his job classification, transit car cleaner, was included in the list of safety-sensitive positions because transit car cleaners are called upon at various times to drive transit vehicles within the yard. However, once Turner was randomly selected for testing, he sought to arbitrate whether or not he had been properly classified as a safety-sensitive employee because, to date, he had never been called upon to drive a vehicle.

The City has provided us with unrefuted evidence that Turner could be reassigned at any time to a position which includes driving transit vehicles. We have also been directed to federal authority indicating that the possibility that Turner might be called upon to perform a safety-sensitive function is enough to satisfy the regulatory definition. We conclude that allowing an arbitrator to exempt this employee in a job classification properly designated as safety-sensitive from drug testing would conflict with the express provisions of federal law and with the San Francisco City Charter, which exempts "the classification and reclassification of positions and the allocation and reallocation of positions to the various classifications" from the scope of bargaining and relegates it to the exclusive jurisdiction of the civil service commission. (S.F. City Charter, § A8.409-3.) Consequently, we affirm.

Facts

Local 790 is an employee organization which represents certain classified employees for the City for purposes of bargaining pursuant to the Meyers-Milias-Brown Act. (Gov.Code, § 3500 et seq.) Local 790 and the City are parties to an agreement concerning wages, hours, and working conditions of employees. Pursuant to the agreement, the parties have agreed to submit disputes which involve "the interpretation or application of, or compliance with this agreement" to a grievance procedure which, under specified circumstances, can include binding arbitration.

The controversy between the parties stems from the June 27, 1995, random drug testing of MUNI employee Turner, a class 9102 transit car cleaner. Local 790, the bargaining representative for Turner's classification, filed a formal grievance on July 7, 1995, contending that the City violated the agreement because Turner "was subjected to Drug/Alcohol Testing." The grievance goes on to state "Mr. Turner is not a SAFETY SENSITIVE Worker. He does not drive an automobile--let alone a MUNI bus. He does not even have a driver's license. This is and has been known by the [San Francisco Municipal Railway] for his entire tenure in S.F. City employment. It has never been a required function of his position." Local 790 requested the City to immediately remove Turner from the "Substance Testing Pool" and reclassify him "as Non-Safety Sensitive as he is in fact."

After the City refused to submit the dispute to arbitration, Local 790 filed a petition to compel arbitration (Code Civ.Proc., § 1281.2), from which this appeal arises. The petition defines the issue to be arbitrated as whether the City violated the agreement by subjecting Turner to "disciplinary and discriminatory drug testing." The petition prays for an order directing the City to submit the dispute to arbitration as provided by the agreement.

The City's answer sets forth the affirmative defense, among others, that the claim presented was preempted by federal law, particularly the Omnibus Act. The Omnibus Act was enacted to enhance transportation safety and to guard against the demonstrated dangers of drug and alcohol abuse through drug and alcohol testing, including mandatory random testing of safety-sensitive employees who are involved in the transportation industry. (49 U.S.C. § 5331, subd. (b).)

The parties' respective viewpoints were presented to the court through points and authorities and oral argument. In denying Local 790's petition to compel arbitration, the trial court remarked that it disagreed with Local 790's position that this grievance "involves disciplinary proceedings or involves any of the other interpretations of contract. And indeed, I don't perceive that the contract even begins to speak to the question of who is properly classified as a safety sensitive employee." On April 18, 1996, Local 790 filed a notice of appeal from this ruling. ²

Overview

Code of Civil Procedure section 1281.2 specifically states that we must order an arbitration of a dispute "if it determines that an agreement to arbitrate the controversy exists...." It goes on to provide, "[i]f the court determines that a written agreement to arbitrate a controversy exists, an order to arbitrate such controversy may not be refused on the ground that the petitioner's contentions lack substantive merit." In determining whether there is an obligation to arbitrate this particular dispute, we must examine and, to a limited extent, construe the underlying agreement. (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 480, 121 Cal.Rptr. 477, 535 P.2d 341; United Transportation Union v. Southern Cal. Rapid Transit Dist. (1992) 7 Cal.App.4th 804, 808, 9 Cal.Rptr.2d 702.)

The question of whether a collective bargaining agreement creates a duty for the parties to arbitrate a particular grievance is an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator. The court also determines what issues are subject to arbitration. (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 652-653, 35 Cal.Rptr.2d 800.) "Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute. [Citation.]" (Ibid.) However, there is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate. (Los Angeles Police Protective League v. City of Los Angeles (1988) 206 Cal.App.3d 511, 514, 253 Cal.Rptr. 641.)

The right to arbitration depends upon the terms of the contract--a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Fontana Teachers Assn. v. Fontana Unified School Dist. (1988) 201 Cal.App.3d 1517, 1521, 247 Cal.Rptr. 761; Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1795, 13 Cal.Rptr.2d 678.) Where, as here, the agreement is interpreted based on undisputed evidence, we are not bound by the trial court's construction of the agreement. Instead, in such a case, the interpretation of the agreement becomes a question of law and we must make an independent determination of its meaning. (Service Employees Internat. Union v. City of Los Angeles (1996) 42 Cal.App.4th 1546, 1552-1553, 50 Cal.Rptr.2d 216; Vianna v. Doctors' Management Co. (1994) 27 Cal.App.4th 1186, 1189, 33 Cal.Rptr.2d 188; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 817, 30 Cal.Rptr.2d 785.)

Discussion

As already noted, the Omnibus Act requires random alcohol and drug testing for transportation workers in "safety-sensitive" positions. The preemption provision of the Omnibus Act confirms that its purpose was to nullify state laws that might prevent local transit systems from conducting drug and alcohol testing of their safety-sensitive employees. Among other things, the Omnibus Act prohibits any state or local government from adopting or having in effect "law, regulation, standard, or order that is inconsistent with the regulations prescribed under this section." (49 U.S.C. § 5331, subd. (f).) The implementing regulations for the Omnibus Act preempt any state and local laws to the extent that (1) compliance with both the state and local law and the federal regulations is not possible, or (2) compliance with the state or local law "is an obstacle to the accomplishment and execution of any requirement in this part." (49 C.F.R. §§ 653.9, 654.9.)

The Omnibus Act requires recipients of federal transit funds to implement a program to deter and detect the use of prohibited drugs and...