Opinion
B295468
03-18-2020
ERIKA RAMOS et al., Plaintiffs and Respondents, v. TOTAL-WESTERN, INC., Defendant and Appellant.
Atkinson, Andelson, Loya, Ruud & Romo, Scott K. Dauscher and Amber S. Healy for Defendant and Appellant. Factum Law Group and Frank A. Alfonso for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BC718151 APPEAL from an order of the Superior Court of Los Angeles County, Yvette M. Palazuelos, Judge. Affirmed. Atkinson, Andelson, Loya, Ruud & Romo, Scott K. Dauscher and Amber S. Healy for Defendant and Appellant. Factum Law Group and Frank A. Alfonso for Plaintiffs and Respondents.
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INTRODUCTION
Under both federal and California law, a union may enter into a collective bargaining agreement that requires members to arbitrate contractual disputes arising out of the agreement. But if an arbitration provision purports to waive members' rights to litigate statutory claims in a judicial forum, the provision must be "clear and unmistakable," as well as "explicit." (Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70 (Wright); Vasquez v. Superior Court (2000) 80 Cal.App.4th 430 (Vasquez).)
Plaintiffs and respondents Erika Ramos, Kelly Macedo, and Lorrie Williams (plaintiffs) filed the present action against their former employer, defendant and appellant Total-Western, Inc. (Total-Western), generally alleging Total-Western engaged in gender discrimination through its job assignment, compensation, and promotion policies and practices. During their employment, plaintiffs were union members subject to the terms and conditions of a collective bargaining agreement (CBA) that contains an arbitration provision. Total-Western moved to compel arbitration of all plaintiffs' claims, including claims under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.) (FEHA) and the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) (PAGA). Applying Wright and Vasquez, the trial court concluded the CBA did not contain a provision that clearly, unmistakably, and explicitly waived plaintiffs' right to litigate their statutory claims in a judicial forum. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
The relevant facts are few. Plaintiffs were each employed, at various times, by Total-Western and were members of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union through their affiliation with the United Steelworkers Local 1945 (union). As members of the union, plaintiffs' employment with Total-Western was governed by a collective bargaining agreement (CBA). The CBA includes a section relating to grievances, which section sets out both an internal grievance procedure and a binding arbitration procedure.
Ramos worked for Total-Western from April 2011 to May 2018; Macedo worked for the company from July 2012 to May 2018; and Williams worked there from October 2014 to February 2017.
Plaintiffs initiated the present suit against Total-Western in August 2018. In the operative complaint, plaintiffs generally allege that Total-Western discriminated against them and other women concerning compensation, job assignments, and promotions. The complaint includes eight causes of action: (1) violation of Labor Code section 1197.5 (Equal Pay Act); (2) gender discrimination in violation of FEHA; (3) retaliation in violation of FEHA; (4) retaliation in violation of the Equal Pay Act; (5) failure to prevent discrimination and retaliation in violation of FEHA; (6) unfair competition in violation of Business and Professions Code section 17200 et seq. (UCL); (7) violation of public policy (FEHA); and (8) a PAGA claim.
Citing the section of the CBA relating to grievances and arbitration, Total-Western filed a petition to compel arbitration of all claims contained in plaintiffs' complaint. Plaintiffs opposed the petition, arguing in part that the CBA did not require arbitration of claims based on their statutory, as opposed to contractual, rights.
The court granted the petition in part and denied it in part. The court ordered arbitration of plaintiffs' claims under the Equal Pay Act (the first and fourth causes of action) and the UCL (the sixth cause of action), to the extent the UCL claim is predicated on violations of the Labor Code. The court denied the request for arbitration as to the remaining claims, i.e., the FEHA claims (the second, third, fifth, and seventh causes of action), the UCL claim to the extent it is predicated on FEHA violations (the sixth cause of action), and the PAGA claim (the eighth cause of action).
Plaintiffs did not appeal or cross-appeal from the order granting arbitration as to these claims.
Total-Western timely appeals.
DISCUSSION
Total-Western contends the court erred in denying its petition to compel arbitration as to plaintiffs' FEHA claims and PAGA claim. We disagree.
1. Standard of Review
An order denying a petition to compel arbitration is appealable. (Code Civ. Proc., § 1294, subd. (a).) "Where, as here, the evidence is not in conflict, we review the trial court's denial of arbitration de novo. [Citation.]" (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).)
2. The court properly denied Total-Western's petition to compel arbitration of plaintiffs' FEHA claims.
2.1. A term in a collective bargaining agreement waiving employees' right to prosecute statutory claims in a judicial forum is enforceable only if the waiver is explicit, clear, and unmistakable.
Because arbitration is a creature of contract, " ' "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." ' [Citations.]" (Pinnacle, supra, 55 Cal.4th at p. 236; Code Civ. Proc., §§ 1281, 1281.2.) In determining whether an agreement to arbitrate covers the parties' dispute, courts apply state contract law while giving due regard to the federal policy favoring arbitration. (Pinnacle, at p. 236.)
We are concerned here with a CBA, i.e., an agreement between an employer and a union. A CBA may waive the rights of union members (i.e., employees) even without explicit, individual consent of each member. (See, e.g., Rymel v. Save Mart Supermarkets, Inc. (2018) 30 Cal.App.5th 853, 859.) Generally speaking, "when a CBA includes an arbitration provision, contractual matters under a CBA are presumed arbitrable; that is, arbitration must be granted as long as the CBA is reasonably susceptible to an interpretation in favor of arbitration. [Citation.] [¶] However, the presumption of arbitration in a CBA does not apply to statutory violations. [Citations.]" (Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th 1, 11-12, italics added (Cortez), citing Wright.) Indeed, a CBA will not be deemed to waive an employee's right to pursue statutory claims in a judicial forum unless that waiver is explicit, as well as clear and unmistakable. (Id. at p. 12.)
In Wright, the United States Supreme Court considered whether a general arbitration provision in a CBA required an employee to arbitrate a claim based on statutory rights under the Americans with Disabilities Act of 1990 (the ADA). (Wright, supra, 525 U.S. at pp. 79-81.) The Court acknowledged that ordinarily a presumption of arbitrability applies to contractual disputes arising out of a CBA, but concluded that presumption did not apply to statutory violations. (Id. at pp. 78-79.) Wright explained that an employee's statutory claim "ultimately concerns not the application or interpretation of any CBA, but the meaning of a ... statute" and of statutory rights "distinct from" the CBA. (Ibid.) Moreover, Wright held that a CBA provision requiring an employee to arbitrate statutory claims "must be particularly clear." (Id. at p. 79.) That is, a union-negotiated waiver of employees' statutory rights to a judicial forum must be "clear and unmistakable." (Id. at p. 80; see also 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, 258 [the agreement to arbitrate statutory claims must be " 'explicitly stated' " in the CBA].)
California appellate courts have uniformly applied Wright to protect an employee's right to pursue statutory claims in court. In Vasquez, the leading case, our colleagues in Division Five of this court applied Wright in a case involving statutory causes of action under FEHA and the ADA. (Vasquez, supra, 80 Cal.App.4th at pp. 432-434.) Like the CBA in the present case, the CBA in Vasquez required that any disputes arising out of the CBA be resolved by a grievance and arbitration procedure. The question presented on appeal was whether that general provision required arbitration of the plaintiff's statutory discrimination claims. (Id. at p. 432.) In answering that question, Vasquez followed Wright and further held that in determining whether there has been a sufficiently explicit waiver of an employee's right to pursue statutory claims in a judicial forum, courts look to the generality (or specificity) of the CBA's arbitration clause, explicit incorporation of statutory requirements into the CBA, and any reference to specific statutory provisions. (Id. at p. 434.) Stated differently, the court explained that "[t]he test is whether a collective bargaining agreement makes compliance with the statute a contractual commitment subject to the arbitration clause." (Ibid.)
Vasquez concluded the CBA did not contain a clear and unmistakable waiver of the employees' rights to a judicial forum for their statutory claims of employment discrimination. (Vasquez, supra, 80 Cal.App.4th at p. 436.) The court stressed that the CBA provided in a broad and nonspecific manner that " 'all grievances or disputes arising ... over the interpretation or application of the terms of this [CBA]' " shall be settled by the grievance and arbitration procedure. (Id. at p. 433.) Further, although the CBA prohibited the employer from discriminating against employees " 'under applicable federal and state law,' " the CBA did not identify any particular statutes, such as the ADA or FEHA. (Id. at p. 436.) Vasquez held that a contractual commitment not to discriminate coupled with a broad arbitration provision was not a "clear and unmistakable waiver of the covered employees' rights to a judicial forum for statutory claims of employment discrimination." (Ibid.)
The Wright/Vasquez analysis has also been applied where parties dispute whether a CBA requires arbitration of statutory wage and hour claims. In Cortez, for example, the plaintiff sued his former employer for violations of wage and hour provisions of the Labor Code. The CBA's arbitration clause had clearly and unmistakably referenced claims arising under Wage Order No. 16-2001, which implemented certain provisions of the Labor Code. The Court of Appeal held that the plaintiff's statutory claims relating to the wage order and its related Labor Code section were subject to the CBA's arbitration clause. (Cortez, supra, 15 Cal.App.5th at pp. 4-6, 12-15.) However, the plaintiff's other statutory claims—those that did not relate to the wage order specifically identified in the arbitration clause—were not arbitrable under the Wright/Vasquez test because the CBA did not expressly waive the employees' rights to a judicial forum as to those claims. (Id. at pp. 14-15.)
2.2. CBA Provisions Relating to Arbitration and Statutory Rights
The CBA at issue here contains several provisions relating to the arbitration of grievances between plaintiffs and Total-Western.
Article Seven, titled "Grievance," is the primary focus of our analysis. The article begins with Section A:
"A. Limitations:
"a. The Union and Company agree that any dispute arising out of the interpretation of this Agreement, shall be resolved under and in accordance with this Grievance and Arbitration Procedure, which includes final and binding arbitration. In addition, the Company and the Union agree that disputes regarding the Company's compliance with the below listed statutory provisions shall be resolved under this Grievance and Arbitration procedure, provided that California law permits their resolution through arbitration instead of through a judicial process.
"i. [T]he California Labor Code, and Industrial Wage Order 16-2001 or any Industrial Welfare Commission Wage Order determined to be applicable; which cover the Company's operations, and are hereby incorporated to apply to work performed under this Agreement; and
"ii. All provisions of the California Labor Code governing the payment of wages and the provision of meal and rest periods, including but not limited to Labor Code sections 201-226.7, inclusive, 510, and 512, as well as any of the provisions (set forth at sections 1-20) of the applicable I.W.C. Wage Order."
Subsections b, c, and d contain additional provisions not relevant to our analysis.
Article Seven continues in Section B, setting forth a three-step grievance procedure. In step one, the employee (individually or through a Union Representative) takes up the matter with his or her immediate supervisor within 30 days of knowledge of the alleged violation. The supervisor is required to give a written answer within 10 days. In step two, if the answer provided in step one is not satisfactory, the employee (individually or through a Union Representative) may take up the matter with appropriate management authority within 10 days of the supervisor's answer. The CBA provides, as to step two of the grievance procedure, that "[t]he Company and the Union shall attempt to reach a satisfactory settlement within ten (10) days."
As to the third step of the grievance procedure, Section B states:
"Step Three:
"If the grievance is not settled as a result of the above procedure, the Union may present a written request for arbitration to the Company. Such requests shall be submitted within fifteen (15) calendar days from the decision in Step Two. Nothing in this procedure shall compel the Union to seek arbitration of any state law claims listed in paragraph (A)(1)(i) or (A)(1)(ii) above. Therefore, should the Union and the Company fail to agree to a resolution of any such dispute or move to arbitration within the specified time limit, the employee retains an independent right to seek a resolution through other means."
Article Seven does not contain paragraphs designated (A)(1)(i) or (A)(1)(ii). It appears that the internal reference is to paragraphs (A)(a)(i) and (A)(a)(ii), ante.
Finally, Article Seven sets forth the arbitration procedure in Section C. Its relevant provisions are:
"C. Arbitration Procedure:
"For the purpose of settling disputes arising between the parties with regard to the application of this Agreement or the meaning of any part thereof not settled under the procedure in Section B of this Article, the initiating party may submit such grievance to a Board of Arbitration selected as set out below, provided the grievance meets all of the qualifications provided in Section A of the Article, and the actions complained of occurred during a period when the Agreement was in effect."
Seven numbered provisions follow setting forth the methodology of arbitration, including:
"4. If a dispute exists as to arbitrability of a grievance, the issue of arbitrability shall first be determined by an impartial arbitrator selected by the parties. If such grievance is found to be arbitrable, the grievance shall then be submitted to a separate Board of Arbitration ... .
"5. [P]rior to the arbitration hearing of any of the statutory disputes listed in paragraphs A(1)(i) or A(1)(ii), the Parties will be afforded the opportunity to engage in discovery adequate to investigate the alleged claim(s) or defenses to the alleged claim(s).
"6. The award of the Board of Arbitration shall be final and binding upon both parties, provided such award shall be within the scope and terms of this Agreement, shall not change, add to or modify any of its provisions or conditions, and is not decided solely on the basis of practice."
The specific provisions relating to discrimination are found in Article 24, titled "Discrimination." As relevant here, the CBA provides:
"A. The Company shall not refuse to hire, nor shall the Company discharge or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, gender, national origin, ancestry, physical or mental disability, age ... or any other classification protected by law.
"B. The Company shall not limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or promotion opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, gender, national origin, ancestry, physical or mental disability, age ... or any other classification protected by law."
And as to the resolution of discrimination claims, Article 24 provides, in Section F:
"F. This Agreement prohibits conduct which would violate laws regulating the workplace and conduct by and between the Company and the Union and/or employees. Alleged discrimination claims that have not been satisfactorily resolved through the Company process will be handled through the grievance and arbitration procedure as described in ARTICLE SEVEN of this document."
2.3. The CBA does not contain an explicit, clear, and unmistakable waiver of plaintiffs' right to litigate statutory claims under FEHA.
Applying the Wright/Vasquez standard discussed ante, we conclude the CBA in the present case does not clearly and unmistakably waive plaintiffs' right to pursue their FEHA claims in a judicial forum.
At the outset, Article Seven, Section A, subdivision (a), states that it applies to "any dispute arising out of the interpretation of this Agreement," language that has been described by the courts as the sort of "broad [and] nonspecific" language that, on its own, is not a "clear and unmistakable" waiver of the right to a judicial forum for statutory claims. (See, e.g., Vasquez, supra, 80 Cal.App.4th at p. 435-436.)
Article Seven does address statutory claims, however. Section A, subdivision (a), goes on to state that the parties agree to arbitrate disputes arising under "the California Labor Code, and Industrial Wage Order 16-2001 or any Industrial Welfare Commission Wage Order determined to be applicable, which cover the Company's operation," and "[a]ll provisions of the California Labor Code governing the payment of wages and the provision of meal and rest periods, including but not limited to Labor Code sections 201-226.7, inclusive, 510, and 512, as well as any of the provisions (set forth at sections 1-20) of the applicable I.W.C. Wage Order." This provision is specific as to the statutes at issue—the Labor Code—and makes no mention of statutory rights generally, or of FEHA in particular.
Moreover, even though Section A, subdivision (a), contains an agreement to arbitrate claims arising under the Labor Code, Section B contains a critical, related provision. There, the CBA preserves employees' rights to pursue their statutory claims in court. In describing the third step of the grievance procedure, which permits the union to request arbitration in the event the parties cannot reach an informal settlement of an employee's grievance, the CBA states: "Nothing in this procedure shall compel the Union to seek arbitration of any state law claims listed in paragraph (A)(1)(i) or (A)(1)(ii) above. Therefore, should the Union and the Company fail to agree to a resolution of any such dispute or move to arbitration within the specified time limit, the employee retains an independent right to seek a resolution through other means." In short, Article Seven of the CBA permits the arbitration of employee claims arising under the Labor Code but explicitly preserves an employee's right to pursue those claims in a judicial forum.
We continue by considering whether any other provision of the CBA contains a waiver of the right to pursue statutory claims in court. As Vasquez and subsequent cases have noted, even a broad, nonspecific arbitration provision may waive the right to pursue statutory claims in a judicial forum if the arbitration provision is coupled with " 'an "explicit incorporation of statutory antidiscrimination requirements" elsewhere in the contract.' " (Vasquez, supra, 80 Cal.App.4th at p. 435.)
Here, as Total-Western notes, the CBA includes a broad nondiscrimination provision in Article 24, Sections A and B, set forth above. Notably, however, those provisions make no mention of any specific statutory scheme such as FEHA. As a result, the nondiscrimination provisions do not waive plaintiffs' right to pursue their statutory claims in court: "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. [Citation.] Compliance with a particular statute must be an express contractual commitment ... ." (Vasquez, supra, 80 Cal.App.4th at pp. 435-436.) Vasquez is on point. There, the applicable CBA included a broad, nonspecific arbitration provision and a commitment not to discriminate against any employee on the basis of national origin " 'under applicable federal and state law.' " The court stressed, however, that neither the ADA nor FEHA was expressly incorporated in the CBA. Indeed, as is the case here, those statutes were not even mentioned in the CBA. The court concluded that because the CBA did not explicitly reference the nondiscrimination statutes, the CBA did not contain a "clear and unmistakable" waiver: "There is of course the general language making all contractual disputes subject to the grievance and arbitration procedure. Wright, however, emphasized that with respect to statutory discrimination claims, there is no presumption of arbitrability and the waiver of a judicial forum must be clear and unmistakable." (Id. at p. 436.) Other cases are uniformly in accord. (E.g., Vasserman v. Henry Mayo Newhall Memorial Hospital (2017) 8 Cal.App.5th 236, 247 [noting CBA provision making "no mention" of the Labor Code or any other statute, any individual statutory rights, or waiver of a judicial forum was not a clear and unmistakable waiver]; Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 544-546 ["The general reference to complying with and abiding by all state and local discrimination laws is not an explicit incorporation of FEHA. ... At a minimum, the agreement must specify the statutes for which claims of violation will be subject to arbitration."].)
Article 24 does include a reference to Article Seven, suggesting the arbitration provision applies to grievances alleging discrimination. Specifically, Article 24, Section F states: "This Agreement prohibits conduct which would violate laws regulating the workplace and conduct by and between the Company and the Union and/or employees. Alleged discrimination claims that have not been satisfactorily resolved through the Company process will be handled through the grievance and arbitration procedure as described in ARTICLE SEVEN of this document." But as just stated, a general reference to conduct that might violate anti-discrimination laws is not sufficiently explicit to constitute a waiver of the judicial forum.
Because the CBA does not incorporate FEHA or provide that a violation of FEHA constitutes a violation of the CBA, we conclude the CBA does not contain a "clear and unmistakable" waiver of plaintiffs' right to prosecute their statutory claims in court. Accordingly, the court did not err in denying Total-Western's petition to compel arbitration of plaintiffs' FEHA claims.
3. The court properly denied Total-Western's petition to compel arbitration of plaintiffs' PAGA claim.
PAGA authorizes an employee to bring a civil action against an employer on behalf of himself and other employees regarding violations of the Labor Code. The employee effectively stands in the shoes of the State of California and may recover civil penalties for the employer's violation of certain employment laws. Our Supreme Court has held that, as a matter of law, the right to litigate a PAGA claim in a judicial forum cannot be waived by an arbitration provision in an employment agreement. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384.)
In 2018, however, the Legislature adopted Labor Code section 2699.6, a narrow provision that prohibits union employees in the construction industry from bringing PAGA claims under certain circumstances. According to Total-Western, section 2699.6 applies here and requires plaintiffs to arbitrate their wage and hour claims individually, rather than litigating them in a judicial forum and on behalf of other impacted employees.
Labor Code section 2699.6, subdivision (a), provides:
"This part [i.e., PAGA] shall not apply to an employee in the construction industry with respect to work performed under a valid collective bargaining agreement in effect any time before January 1, 2025, that expressly provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and for the employee to receive a regular hourly pay rate of not less than 30 percent more than the state minimum wage rate, and the agreement does all of the following:
"(1) Prohibits all of the violations of this code that would be redressable pursuant to this part, and provides for a grievance and binding arbitration procedure to redress those violations.
"(2) Expressly waives the requirements of this part in clear and unambiguous terms.
"(3) Authorizes the arbitrator to award any and all remedies otherwise available under this code, provided that nothing in this section authorizes the award of penalties under this part that would be payable to the Labor and Workforce Development Agency."
Total-Western asserts that the "CBA contemplates arbitration of all Labor Code claims, including those brought pursuant to PAGA" and that, therefore, plaintiffs "are also required to arbitrate their PAGA claims."
This argument is easily rejected. As we have said, the waiver of an employee's right to a judicial forum must be clear, unmistakable, and explicit. Here, as Total-Western notes, Article Seven, Section A, subdivision (a), states that "the Company and the Union agree that disputes regarding the Company's compliance with the below listed statutory provisions shall be resolved under this Grievance and Arbitration procedure[.]" The provision then specifies the following:
"i. [T]he California Labor Code, and Industrial Wage Order 16-2001 or any Industrial Welfare Commission Wage Order determined to be applicable; which cover the Company's operations, and are hereby incorporated to apply to work performed under this Agreement; and
"ii. All provisions of the California Labor Code governing the payment of wages and the provision of meal and rest periods, including but not limited to Labor Code sections 201-226.7, inclusive, 510, and 512, as well as any of the provisions (set forth at sections 1-20) of the applicable I.W.C. Wage Order."
If no other provisions of the CBA related to the arbitrability of Labor Code violations, we might agree with Total-Western's argument here. But that is not the case. Specifically, Article Seven, Section B of the CBA states, in describing step three of the grievance procedure:
"If the grievance is not settled as a result of the above procedure, the Union may present a written request for arbitration to the Company. Such requests shall be submitted within fifteen (15) calendar days from the decision in Step Two. Nothing in this procedure shall compel the Union to seek arbitration of any state law claims listed in paragraph (A)(1)(i) or (A)(1)(ii) above. Therefore, should the Union and the Company fail to agree to a resolution of any such dispute or move to arbitration within the specified time limit, the employee retains an independent right to seek a resolution through other means." (Italics added.)
Reading these provisions together, we must conclude that Total-Western's employees retain the right to pursue any claims brought under the Labor Code (including PAGA claims under Labor Code section 2698 et seq.) in a judicial forum. Thus, the court did not err in denying Total-Western's petition to compel arbitration as to plaintiffs' PAGA claim.
4. By failing to raise the issue below, Total-Western waived its contractual right to have the threshold issue of arbitrability decided by an arbitrator rather than the court.
As its final argument on appeal, Total-Western asserts—for the first time in this litigation—that the arbitration provision delegates all questions regarding arbitrability to an arbitrator. According to plaintiffs, Total-Western waived the issue by failing to raise it below. We agree with plaintiffs.
Under the Federal Arbitration Act, parties to an arbitration agreement may agree to arbitrate the threshold issue whether a dispute is subject to an arbitration provision. (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 79, fn. 1 [holding parties may delegate threshold issue of enforceability to arbitrator and parties' intent must be shown by "clear and unmistakable" evidence].) California law is in accord. (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 480 [" 'The arbitrability of a dispute may itself be subject to arbitration if the parties have so provided in their contract' "]; Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 240-242 [noting rules concerning delegation of authority to arbitrator are the same under both state and federal law].) Here, the CBA does just that: It provides that "[i]f a dispute exists as to arbitrability of a grievance, the issue of arbitrability shall first be determined by an impartial arbitrator selected by the parties." But neither Total-Western nor plaintiffs argued that the matter should be before an arbitrator rather than the court in their briefing on the petition to compel arbitration; both sides instead addressed on the merits whether the CBA required arbitration of the claims presented in plaintiffs' operative complaint. In other words, Total-Western acted as though the court—rather than an arbitrator—could properly decide whether the CBA's arbitration provision was enforceable and applicable to plaintiffs' statutory claims.
Now, Total-Western seeks another bite at the proverbial apple. After making the tactical decision to litigate the issue of arbitrability before the court—and then receiving a ruling with which it is dissatisfied—Total-Western seeks to invoke the CBA provision delegating the question of arbitrability to an arbitrator (Article Seven, Section (C), subdivision (4)). Total-Western has waived that contractual right.
The fundamental attribute of arbitration is its efficient, streamlined procedure. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 346; Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1141.) Any delay in the assertion of the right to arbitrate is fundamentally at odds with the essential goal of arbitration. For that reason, our courts have consistently held that a party's failure to assert the contractual right to arbitration in a timely manner may constitute a waiver of that right where it prejudices the opposing party. (E.g., Iskanian v. CLS Transportation Los Angeles, LLC, supra, 59 Cal.4th at pp. 374-375 [" 'California courts have found a waiver of the right to demand arbitration in a variety of contexts, ranging from situations in which the party seeking to compel arbitration has previously taken steps inconsistent with an intent to invoke arbitration [citations] to instances in which the petitioning party has unreasonably delayed in undertaking the procedure' "].)
Here, Total-Western could have asserted below that an arbitrator, rather than the court, should decide all questions relating to the applicability of the CBA's arbitration provision. Stated slightly differently, Total-Western should have argued that the parties agreed to arbitrate not only all employment-related grievances but also the threshold issue whether a specific grievance is subject to the arbitration provision. Instead, Total-Western waited more than a year to bring up the issue for the first time. Total-Western's actions are inconsistent with the overall goals of the arbitration model and accepting Total-Western's argument in this case would result in a waste of both judicial and financial resources.
In sum, we conclude that by litigating the issue before the trial court and again here, Total-Western waived its contractual right to have an arbitrator determine whether plaintiffs' grievances must be arbitrated.
DISPOSITION
The order granting in part and denying in part Total-Western's petition to compel arbitration is affirmed. Plaintiffs shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
DHANIDINA, J.