Vasserman v. Henry Mayo Newhall Mem'l Hosp.

• Court: California Court of Appeals
• Writing for the Court: COLLINS, J.
• Citation: Vasserman v. Henry Mayo Newhall Mem'l Hosp., 8 Cal.App.5th 236, 213 Cal.Rptr.3d 480 (Cal. App. 2017)
• Decision Date: 07 February 2017
• Docket Number: B267975
• Parties: Tanya VASSERMAN, Plaintiff and Respondent, v. HENRY MAYO NEWHALL MEMORIAL HOSPITAL, Defendant and Appellant.

8 Cal.App.5th 236

213 Cal.Rptr.3d 480

Tanya VASSERMAN, Plaintiff and Respondent,

v.HENRY MAYO NEWHALL MEMORIAL HOSPITAL, Defendant and Appellant.

B267975

Court of Appeal, Second District, Division 4, California.

Filed February 7, 2017

Epstein Becker & Green, Michael S. Kunand Kevin D. Sullivan, Los Angeles, for Defendant and Appellant.

Law Office of Joseph Antonelli, Joseph Antonelli and Janelle C. Carney, Chino Hills, for Plaintiff and Respondent.

COLLINS, J.

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 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.

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 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 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 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, 129 S.Ct. 1456, 173 L.Ed.2d 398 (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 sh...