Vasquez v. Superior Court

• Decision Date: 27 April 2000
• Citation: 80 Cal.App.4th 430,95 Cal.Rptr.2d 294
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2000) EDWARD VASQUEZ, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY FAIR ASSOCIATION, Real Party in Interest. B135296 Filed

95 Cal.Rptr.2d 294 (Cal.App. 2 Dist. 2000)

EDWARD VASQUEZ, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

LOS ANGELES COUNTY FAIR ASSOCIATION, Real Party in Interest.

B135296

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE

DISTRICT, DIVISION FIVE

Filed 4/27/00

(Super. Ct. No. KC030464)

ORIGINAL PROCEEDING; petition for writ of mandate or prohibition. Writ granted. Superior Court of Los Angeles County, William J. McVittie, Judge.

Louis G. Fazzi for Petitioner.

No appearance on behalf of Respondent.

O'Melveny & Myers, Stephen P. Pepe, Catherine B. Hagen, Mary P. Donlevy and Scott K. Davidson for Real Party in Interest.

Steptoe & Johnson, Lloyd C. Loomis and Cynthia T. Soldwedel as Amici Curiae on behalf of Real Party in Interest.

CERTIFIED FOR PUBLICATION

GRIGNON, Acting P.J.

Plaintiff and petitioner Edward Vasquez petitions for a writ of mandate ordering respondent court to vacate its order compelling arbitration of his action against his employer, defendant and real party in interest Los Angeles County Fair Association. Vasquez is a member of a union which has entered into a collective bargaining agreement (the CBA) with the Association. The CBA requires disputes arising out of the agreement to be resolved by a grievance and arbitration procedure. Vasquez sued the Association for disability discrimination under the federal Americans with Disabilities Act (42 U.S.C. 12101 et seq.) (ADA)¹ and the California Fair Employment and Housing Act (Gov. Code, 12940 et seq.) (FEHA), national origin discrimination under the FEHA, and retaliatory harassment. The question presented is whether arbitration of these statutory discrimination claims is required under the CBA and, if so, whether a union may waive its members' rights to a judicial forum for statutory discrimination claims. We conclude that the CBA does not contain a clear and unmistakable waiver of these statutory rights. Accordingly, we grant the petition.

FACTS

The relevant facts are few. Vasquez had been employed by the Association for approximately 12 years in various capacities, most recently as a landscape foreperson. In 1996, Vasquez suffered a job-related injury to his back and was placed on disability. After surgery, Vasquez was ready to return to work in January 1999. Disputes arose between Vasquez and the Association concerning any job restrictions. Delays in Vasquez's return to work took place. Vasquez hired an attorney. The Association returned Vasquez to work as a laborer at his foreperson salary. A vice-president of the Association made a disparaging comment about Vasquez based on his national origin. The assignment of Vasquez as a laborer caused him to reinjure his back. Vasquez was again placed on disability. Vasquez did not institute a grievance under the CBA, but brought the instant action.

THE CBA

The CBA contains the following pertinent provisions. "That it is the intent and purpose of the parties hereto that all grievances or disputes arising between them over the interpretation or application of the terms of this Agreement, except jurisdictional disputes and subcontracting, shall be settled by the procedure set forth in Article [V] hereof . . . ." (CBA, III., A.) "All grievances or disputes between the UNION and the EMPLOYER with respect to the interpretation or application of any of the terms of this Agreement, including discharges, shall be processed in [accordance with the procedure for settlement of grievances and disputes]." (CBA, V., C.) The grievance procedure terminated in mandatory, binding arbitration. "A. There shall be no discrimination by the UNION or the EMPLOYER of any kind against any applicant or employee on account of race, color, religion, sex, age or national origin under applicable federal and state law. [] B. The EMPLOYER and the UNION shall make a good faith effort for the EMPLOYER to be an equal opportunity EMPLOYER." (CBA, XVIII., A.-B.)

DISCUSSION

The question of whether a union can waive employees' rights to a judicial forum for statutory claims is an open one in the United States Supreme Court. (Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 77.) It also has not been decided by the California Supreme Court. The Sixth District has decided that a union cannot waive such rights. (Torrez v. Consolidated Freightways Corp. (1997) 58 Cal.App.4th 1247, 1259.) So has the First District. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 46-49, mod. 76 Cal.App.4th 684c.) We find it unnecessary to resolve this thorny issue, because we conclude no waiver occurred in this case.

We are aware of no California authority on the waiver sufficiency issue. However, the United States Supreme Court has recently addressed this issue in Wright v. Universal Maritime Service Corporation, supra, 525 U.S. at pages 79-81, and a number of federal courts have applied the holding of Wright to various collective bargaining agreement provisions. It is appropriate to apply federal law to this situation. Wright "is the law as explicated by the highest court of this land." (Torrez v. Consolidated Freightways Corp., supra, 58 Cal.App.4th at p. 1259.) Vasquez's claims are based on both the federal ADA and the California FEHA, which was modeled after a federal statute (Title VII, 42 U.S.C. 2000e et seq.). Numerous courts have applied the federal law relating to this issue to state antidiscrimination statutes modeled after Title VII. (Torrez v. Consolidated Freightways Corp., supra, 58 Cal.App.4th at p. 1259.) We also will look to federal law.²

Although ordinarily a presumption of arbitrability applies to contractual disputes arising out of a collective bargaining agreement, the presumption is not applicable to statutory violations. (Wright v. Universal Maritime Service Corporation, supra, 525 U.S. at pp. 78-79.) Indeed a requirement to arbitrate statutory claims "must be particularly clear." (Id. at p. 79.) A union-negotiated waiver of employees' statutory rights to a judicial forum for claims of employment discrimination must be "clear and unmistakable." (Id. at p. 80.) "'[W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is "explicitly stated."'" (Ibid.) "[T]he right to a . . . judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a [collective bargaining agreement]." (Ibid.)

In determining whether there has been a sufficiently explicit waiver, the courts look to the generality of the arbitration clause, explicit incorporation of statutory antidiscrimination requirements, and the inclusion of specific antidiscrimination provisions. The test is whether a collective bargaining agreement makes compliance with the statute a contractual commitment subject to the arbitration clause. (Wright v. Universal Maritime Service Corporation, supra, 525 U.S. at pp. 80-81; see Austin v. Owens-Brockway Glass Container, Inc. (4th Cir. 1996) 78 F.3d 875, 879-880.)³

"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 discrimination claims." (Carson v. Giant Food, Inc. (4th Cir. 1999) 175 F.3d 325, 331.)⁴ 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." (Ibid.) 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." (Id. at p. 332.)⁵ 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 discrimination statutes. (Brown v. ABF Freight Systems, Inc. (4th Cir. 1999) 183 F.3d 319, 322.) Compliance with a particular statute must be an express contractual commitment in the collective bargaining agreement. (Bratten v. SSI Services, Inc. (6th Cir. 1999) 185 F.3d 625, 631; Quint v. A.E. Staley Manufacturing Co. (1st Cir. 1999) 172 F.3d 1, 9.)

We now consider the provisions of the CBA involved in this case. We start with disability discrimination. Neither disability discrimination, the FEHA, nor the ADA is mentioned in the CBA. Thus, we cannot conclude that the union clearly and unmistakably waived Vasquez's right to a judicial forum for his statutory disability discrimination claim. The general language of the CBA is simply insufficient. Vasquez is entitled to a judicial forum for the resolution of his statutory disability discrimination claim. (Deschene v. Pinole Point Steel Co., supra, 76 Cal.App.4th at p. 48, fn. 9, mod. 76 Cal.App.4th 684c.)

The national origin discrimination claim is also not arbitrable. The CBA includes...