Vasserman v. Henry Mayo Newhall Memorial Hospital, 2/8/17, 2DCA/4
A more interesting case about arbitration in the employment class action context, this one in the union context. In bringing this class action, plaintiff nurse alleged the usual potpourri of wage and hour claims. The union contract in question contained provisions concerning meal/rest, overtime, grievance and arbitration. Plaintiff said that the CBA arbitration agreement didn’t apply to her statutory claims; hospital said it did. The trial court denied Hospital’s motion to compel arbitration because the waiver of a judicial forum in the CBA was not “clear and unmistakable.” Held: Affirmed.
Under what’s called the Wright/Vasquez standard, a CBA may require arbitration of a statutory claim if the waiver is “explicitly stated,” and it is “clear and unmistakable” that the parties intended to waive a judicial forum for statutory claims. In a case involving alleged statutory violations, the presumption of arbitrability that typically applies to contractual disputes arising out of a CBA is notapplicable. A CBA is a contract, and wage/hour claims are less about the contract than they are about what the applicable law requires. A CBA requirement that statutory claims be arbitrated must be particularly clear. Citing to US Supreme Court precedent, the court suggested 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.”
While it is true that a waiver of a judicial forum should be clear, arbitration agreements are supposed to stand on equal footing with other contracts. There is a policy in favor of arbitration under both state and federal law. Requiring something in a contract to be “clear and unmistakable” is not a requirement that applies to other contractual provisions. This standard smacks of a continuing judicial hostility to arbitration agreements.
Oh well. The hospital could have done a better job protecting itself. Making labor claims subject to the CBA’s arbitration agreement is a negotiation point; but, assuming the parties agree, including the clear waiver language should be straightforward. The CBA provision in question said that grievances had to be arbitrated and the CBA defines a grievance as “any complaint or dispute arising out of the interpretation or application of a specific Article and Section of this Agreement.” That provision 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.