Filed 12/31/18
                              CERTIFIED FOR PUBLICATION




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                             (Placer)
                                               ----




CHRISTOPHER RYMEL,                                               C085863

                 Plaintiff and Respondent,              (Super. Ct. No. SCV-0037893)

        v.

SAVE MART SUPERMARKETS, INC.,

          Defendant and Appellant.
JOSE ROBLES,                                                     C085865

                 Plaintiff and Respondent,              (Super. Ct. No. SCV-0038597)

        v.

SAVE MART SUPERMARKETS, INC.,

         Defendant and Appellant.
DAVID HAGINS,                                                    C085886

                 Plaintiff and Respondent,              (Super. Ct. No. SCV-0038598)

        v.

SAVE MART SUPERMARKETS, INC.,

                 Defendant and Appellant.



                                                1
       APPEAL from a judgment of the Superior Court of Placer County, Michael W.
Jones, Judge. Affirmed.

      Sheppard, Mullin, Richter & Hampton, Paul S. Cowie, Babak Yousefzadeh and
Karin Dougan Vogel for Defendant and Appellant.

      The Velez Law Firm, Mark P. Velez and Samantha J. Tanner for Plaintiffs and
Respondents.

       Plaintiffs Jose Robles, Christopher Rymel, and David Hagins sued defendant Save
Mart Supermarkets, Inc., alleging various state law statutory employment claims. After
successfully moving to sever, Save Mart moved to compel arbitration as to each plaintiff.
The motions were heard together, and the trial court denied the motions by substantively
identical orders. Save Mart timely appealed in each case. The appeals lie. (See Code
Civ. Proc., § 1294, subd. (a).) We consolidated the appeals for oral argument and
decision and shall affirm the orders denying the motions to compel arbitration.
                                      BACKGROUND
       Generally, a collective bargaining agreement (CBA) providing for arbitration of
employment grievances does not provide for arbitration of a worker’s claims based on
violations of state anti-discrimination or retaliation statutes, nor do federal labor relations
laws preempt such claims. The trial court reasoned that the CBA at issue did not clearly
and unmistakably provide for arbitration of the claims asserted. We agree and further
conclude that the claims asserted by plaintiffs are not preempted by federal law,
specifically section 301 of the Labor Management Relations Act, 1947 (LMRA) (29
U.S.C. § 185(a)).1


1 The relevant language appears in section 301(a) of the bill popularly known as the
Taft-Hartley Act. (Pub.L. No. 101 (June 23, 1947) 61 Stat. 156.) The provision reads:
“Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this chapter, or
between any such labor organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the amount in controversy or

                                               2
       The Complaints
       The original complaint alleged each plaintiff had been employed as an order
selector at Save Mart’s Roseville Distribution Center (Rymel was also a forklift driver).
Each alleged an industrial injury and torts flowing therefrom (failure to accommodate,
retaliation, wrongful discharge, etc.) under the California Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12900 et seq.). Hagins also alleged he was retaliated against
after he reported a workplace safety hazard, purportedly a whistleblower violation under
Labor Code section 1102.5. After the court granted Save Mart’s motion to sever, each
plaintiff filed a separate complaint.
       Robles alleges he suffered an industrial injury to his thumb and his doctor found
he could work with restrictions. He was then given degrading tasks and forced to work
on the cold side of Save Mart’s warehouse, although this made his hand “tense up.”
When he complained he was told to go to the emergency room or keep working; he went
to the emergency room. He was unable to keep a medical appointment and returned to
work. He was then demeaned by having to ask permission to use the bathroom and
having to wear a degrading safety vest, and when he complained he was suspended
without pay. He alleges statutory theories of medical condition discrimination,
harassment, retaliation, and failure to take steps to prevent harassment, discrimination,
and retaliation.
       Hagins alleges he and another employee reported a safety violation to a manager,
regarding unduly narrow aisles. The manager replied that if Save Mart had to fix the
problem it would instead shut down the warehouse and fire everyone. Soon thereafter
Save Mart was cited by Cal-OSHA for this violation. Four months later Hagins suffered
an industrial injury. He tried to work despite the pain, and when he complained he was


without regard to the citizenship of the parties.” (29 U.S.C. § 185(a).) Courts typically
refer to the statutory provision as section 301, rather than by citation to the United States
Code.

                                              3
told to keep working. After he saw his doctor (who diagnosed a torn meniscus) he was
placed on light duty. Save Mart then fired him. He alleges statutory theories of medical
condition discrimination, retaliation, whistleblower retaliation, failure to prevent
discrimination and retaliation, and termination in violation of public policies set by
statute (FEHA and the workers’ compensation laws).2
       Rymel alleges he suffered an industrial injury to his back and was out on workers’
compensation leave. Because he needed to return to work for financial reasons his doctor
lifted his work restrictions. He found it hard to work and asked to be moved to a
different position but received no reply. He was forced to perform degrading tasks and
work on the cold side of the warehouse, which aggravated his back condition. When he
complained he was told to go to an emergency room and have new work restrictions
imposed, an impractical solution. When he complained about unduly narrow aisles, he
was forced to wear a degrading safety vest. A manager taunted him with questions about
his medical condition. Ultimately, Rymel was told he could not work until he was
completely healed. Rymel alleges statutory theories of medical condition discrimination,
harassment, and retaliation, failure to engage in an interactive process to accommodate,
failure to accommodate, and failure to take steps to prevent harassment, discrimination,
and retaliation, as well as termination in violation of public policy (set by FEHA and the
workers’ compensation laws).
       Motions to Compel Arbitration
       In each case Save Mart moved to compel arbitration, citing the California
Arbitration Act (CAA) (Code Civ. Proc., § 1280 et seq.) the Federal Arbitration Act
(FAA) (9 U.S.C. § 1 et seq.) and the federal Labor Management Relations Act, section



2 Our Supreme Court has held the policy or policies must be rooted in positive law, i.e.,
regulatory, statutory, or constitutional provisions. (See Green v. Ralee Engineering Co.
(1998) 19 Cal.4th 66, 71-72.)

                                              4
301. Save Mart alleged plaintiffs were members of Teamsters Local 150 and were
employed by Save Mart under a CBA that covered the pleaded disputes. Save Mart
argued that resolving the disputes would require interpretation of the CBA or would be
“substantially dependent” on such interpretation, that the claims were “inextricably
intertwined” with parts of the CBA, and that judicial resolution of them would infringe
on the arbitration process set forth in the CBA. The CBA was tendered as an exhibit.
Article 21 addresses arbitration of grievances.
       As for Robles, Save Mart contended his allegations “are based largely on (1) the
tasks and schedules he has been assigned to by his employer, (2) his employer’s
requirement for doctor’s notes in response to his complaints of injury, (3) his employer’s
requirements to wear safety gear, and (4) a three-day suspension he was given pursuant to
the strictures of his [CBA].” Save Mart alleged its defense would be that its challenged
actions were governed by the CBA, prior practices between Save Mart and the
Teamsters, and Save Mart’s reserved management rights under the CBA. Save Mart
made analogous contentions about the complaints filed by Rymel and Hagins.
       Save Mart’s motions included meet-and-confer e-mails wherein plaintiffs’ counsel
cited Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534 (Mendez)
and Vasquez v. Superior Court (2000) 80 Cal.App.4th 430 (Vasquez) to argue that Save
Mart could not rely on the CBA to compel arbitration of FEHA claims. Save Mart did
not reply with contrary authority nor did it offer any factual or other basis for
distinguishing these two cases.
       Plaintiffs opposed the motions, in part citing Vasquez and Mendez (which we
discuss post) and arguing the pleaded claims did not fall within the scope of the CBA.
They also cited Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70 (Wright)
and argued that to overcome the presumption that statutory violations are not arbitrable, a
CBA must be explicit on that point.



                                              5
       At the hearing on the motions, Save Mart argued that preemption analysis under
section 301 was independent of the analysis required under the FAA and CAA and was
unrelated to the arbitration provision of the CBA. Plaintiffs argued that their claims do
not rely on the CBA. The trial court denied the motions to compel, finding Save Mart
had not shown a valid arbitration provision covering the disputed claims existed, and
plaintiffs had not waived their right to sue for state statutory claims. The trial court did
not explicitly address preemption. Save Mart addresses only preemption in its initial
briefing.
                                       DISCUSSION
                                               I
                                     Legal Background
       The parties agree that the CBA does not explicitly refer to FEHA, the
whistleblower statute, and the California workers’ compensation laws; the CBA is silent
on the California statutes plaintiffs contend Save Mart violated.
       To be valid, an arbitration agreement must reflect the mutual intention of the
parties that disputes between them will be resolved out of court; in doing so it operates as
a waiver of the right to sue for redress of grievances. A party is not generally compelled
to arbitrate a claim unless she has agreed to do so; arbitration is conducted by consent.
(See, e.g., AT&T Technologies v. Communications Workers (1986) 475 U.S. 643, 648;
Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55
Cal.4th 223, 236.)
       A CBA is an agreement between an employer and a union and thus may be
construed to waive the rights of union members even without explicit, individual consent
of each member. But such a waiver, if applied to statutory rights, must be “ ‘clear and
unmistakable.’ [Citation.]” (Wright, supra, 525 U.S. at p. 80; see Vasserman v. Henry
Mayo Memorial Hospital (2017) 8 Cal.App.5th 236, 239 [“The [CBA] here required
arbitration of claims arising under the agreement, but it did not include an explicitly

                                              6
stated, clear and unmistakable waiver of the right to a judicial forum for claims based on
statute”]; Choate v. Celite Corp. (2013) 215 Cal.App.4th 1460, 1465 [a CBA “waives a
union member’s right to litigate . . . in a judicial forum only if the waiver is clear and
unmistakable”] (Choate).)
       Ordinarily, a CBA cannot be invoked to bypass state law statutory protections.
“When liability is governed by independent state law, ‘the bare fact that a [CBA] will be
consulted in the course of state-law litigation’ ” is not sufficient to invoke preemption
under section 301. (Sciborski v. Pacific Bell Directory (2012) 205 Cal.App.4th 1152,
1164 (Sciborski), quoting Livadas v. Bradshaw (1994) 512 U.S. 107, 124 [reviewing
cases and holding “These principles foreclose even a colorable argument that a claim
under [California] Labor Code § 203 was pre-empted here”].)
       Numerous California and Ninth Circuit cases have applied this rule to hold that
claims under FEHA and similar remedial state statutes are not preempted by section 301
and therefore are not subject to arbitration under a CBA. This body of case law includes
Mendez and Vasquez, the two cases plaintiffs’ counsel cited in its meet and confer letters
and to the trial court. (See, e.g., Mendez, supra, 220 Cal.App.4th at p. 544 [CBA did not
require arbitration of FEHA claims; “It does not mention FEHA, it does not explicitly
incorporate by reference any statutory antidiscrimination laws, and it does not contain an
explicit waiver of the right to seek judicial redress for statutory discrimination causes of
action”]; id. at p. 546 [“At a minimum, the agreement must specify the statutes for which
claims of violation will be subject to arbitration”]; Choate, supra, 215 Cal.App.4th at p.
1467 [to effect a waiver the CBA “must be specific, and mention either the statutory
protection being waived or, at a minimum, the statute itself”]; Vasquez, supra, 80
Cal.App.4th at pp. 432, 434-436 [similar holding where employee alleged FEHA and
ADA claims and the relevant CBA did not mention those statutes]; Deschene v. Pinole
Point Steel Co. (1999) 76 Cal.App.4th 33, 41-49 [no preemption of claims of wrongful
termination based on medical condition under FEHA and retaliation for adverse

                                              7
testimony under Labor Code, § 230]; Ackerman v. Western Electric Co. (9th Cir. 1988)
860 F.2d 1514, 1517 [the statutory right not to be discriminated against because of
physical handicap or medical condition is defined and enforced under state law without
references to the CBA].)
       Not all work-related state law tort claims avoid section 301 preemption. For
example, in Chmiel v. Beverly Wilshire Hotel Co. (9th Cir. 1989) 873 F.2d 1283, the
employee in part brought common law claims of wrongful termination and breach of
contract. In effect, he claimed that he was entitled to greater employment protection than
provided by the CBA, therefore, because “Chmiel’s independent contract claim concerns
a job position governed by the [CBA], it is completely preempted by section 301.
[Citation.]” (Id. at p. 1286.) Similarly, Chmiel’s tort claims based on breach of the
implied covenant and fair dealing and intentional infliction of emotional distress were
preempted because they placed in issue the terms of the CBA. (See ibid.) However, his
statutory age discrimination claim was not preempted, because the relevant statute set
forth “a nonnegotiable right” that applied “to both unionized and nonunionized workers.
[Citation.]” (Ibid.) In other words, it was not dependent on or connected to the relevant
CBA. (Cf. Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th 1, 13-14 [CBA
clearly and unmistakably covered grievances over wage order]; Ruiz v. Sysco Food
Services (2004) 122 Cal.App.4th 520, 529-531 (Ruiz) [common law defamation and
related torts required interpretation of the CBA and therefore were arbitrable].)
       In Cramer v. Consol. Freightways, Inc. (9th Cir. 2001) 255 F.3d 683, an employer
installed cameras in bathrooms behind two-way mirrors to detect drug use, a
misdemeanor violation of California law. Employees sued for invasion of privacy. The
employer removed the matter to federal court and argued the claims were preempted by
section 301 because their resolution required interpretation of the CBA. (Id. at pp. 688-
689.) The Cramer court explained that “states may provide substantive rights to workers
that apply without regard to a CBA; a state court suit seeking to vindicate these rights is

                                             8
preempted only if it ‘requires the interpretation of a [CBA].’ ” (Id. at p. 690, italics
added.) The fact that the CBA referenced drug testing and surveillance did not insulate
the employer from state law liability, but was merely an effort to use the CBA as a
defense and thereby “ ‘transform’ ” a state law suit into a federal case. (Id. at p. 694.)
But under “settled Supreme Court precedent, ‘§ 301 does not grant the parties to a [CBA]
the ability to contract for what is illegal under state law.’ [Citation.]” (Id. at p. 695.)
       In Burnside v. Kiewit Pacific Corp. (9th Cir. 2007) 491 F.3d 1053 (Burnside),
class members alleged violations of California statutes and regulatory orders after their
employer failed to pay them for the time spent traveling from meeting sites and jobsites
and back again. (Id. at pp. 1055, 1058) Their CBAs included rules about shift length,
overtime, and compensation for transportation. (Id. at pp. 1056-1057.) But state law set
out other rules for determining the compensability of such time. (Id. at pp. 1060-1061.)
       Burnside held the claims were not preempted. First, the claims were based on
state laws independent of the CBA. (See Burnside, supra, 491 F.3d at pp. 1060-1070.)
Next, the claims did not substantially depend on the CBA. Although the CBA set out
detailed work rules; even if state law and the CBA had parallel provisions requiring
interpretation that did not mean the state law claims depended on the CBA. (See id. at p.
1072; see also Moreau v. San Diego Transit Corp. (1989) 210 Cal.App.3d 614, 623 [“A
mere overlapping of protections or terms found in both a [CBA] and state law does not
necessarily require preemption”].) Finally, the fact that ascertainment of damages might
require consulting the CBA did not suffice to show preemption, because merely looking
at the CBA to determine the appropriate wage rate would not interpret the CBA. (See
Burnside, at pp. 1073-1074.)
       A defense must require interpretation of the CBA before preemption will be
found. “Although the plaintiff cannot avoid preemption by ‘artfully pleading’ the claim
[citation], the claim must ‘require interpretation’ of the [CBA]. . . . Preemption occurs
when a claim cannot be resolved on the merits without choosing among competing

                                               9
interpretations of a [CBA] and its application to the claim.” (Sciborski, supra, 205
Cal.App.4th at pp. 1164-1165.)
       As we explain post, because a CBA cannot authorize violations of state law,
resolution of plaintiffs’ claims does not require interpreting the CBA, and the CBA does
not reference the statutes on which these plaintiffs rely, plaintiffs’ claims are neither
arbitrable under the CBA nor preempted by section 301.
                                              II
                                     Save Mart’s Claims
       Save Mart insists that all the claims against it are arbitrable under the CBA and
preempted by section 301. We disagree. Save Mart neither acknowledges the force of
the controlling authority nor explains how plaintiffs’ claims do not fall within the
authorities cited ante that have found state statutory claims functionally identical to
plaintiffs’ claims were not preempted. Ignoring precedent is not persuasive.
       A. Preemption Findings
       Save Mart first faults the trial court’s written ruling for purportedly truncating the
analysis after finding the CBA did not cover plaintiffs’ claims. In Save Mart’s view,
“The trial court’s order, which failed to address this issue of law [i.e., preemption],
should be reversed and arbitration of [the] claims ordered.” Save Mart cites no authority
for the implied proposition that a trial court’s purported failure to analyze all relevant
legal issues in a written ruling requires reversal.3 It does not.
       A written statement of reasons prepared by a trial court does not equate to a
statement of decision. (See Taormino v. Denny (1970) 1 Cal.3d 679, 684; Tyler v.
Children’s Home Society (1994) 29 Cal.App.4th 511, 551-552.) Written reasons “may be
valuable in illustrating the trial judge’s theory but they may never be used to impeach the



3 When asked about this proposition at oral argument, counsel for Save Mart appeared to
retreat from the position taken in Save Mart’s briefing.

                                              10
order or judgment.” (Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991)
233 Cal.App.3d 577, 591.) Absent a statement of decision, a ruling “is presumed to be
correct . . . and all intendments and presumptions are indulged in favor of its
correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)4
       B. Preemption of the Claims
       Save Mart next contends that every single claim of each plaintiff herein is
preempted by section 301. This position is incorrect and ignores binding precedent.
              1. Test for Preemption
       The Ninth Circuit “has articulated a two-step inquiry to analyze § 301 preemption
of state law claims. First, a court must determine ‘whether the asserted cause of action
involves a right conferred upon an employee by virtue of state law, not by a CBA. If the
right exists solely as a result of the CBA, then the claim is preempted, and [the] analysis
ends there.’ [Citation.] If the court determines that the right underlying the plaintiff’s
state law claim(s) ‘exists independently of the CBA,’ it moves to the second step, asking
whether the right ‘is nevertheless “substantially dependent on analysis of a [CBA].” ’
[Citation.] Where there is such substantial dependence, the state law claim is preempted
by § 301. If there is not, then the claim can proceed under state law.” (Kobold v. Good
Samaritan Regional Medical Center (9th Cir. 2016) 832 F.3d 1024, 1032-1033, fn.
omitted (Kobold).)
       As we have set forth in Part I, ante, when determining independence from the
CBA, the courts focus on the legal character of the claim rather than the underlying set of
facts. The question is whether the claim can be resolved by looking to the CBA without




4 In making this argument, Save Mart suggests that preemption analysis is entirely
unrelated to the arbitrability question. But the two inquiries largely overlap. If a CBA
does not provide for arbitration of a state statutory tort, there would rarely be a need to
interpret the CBA to resolve that tort.

                                             11
the need for interpretation of the CBA. “ ‘[I]n the context of § 301 complete preemption,
the term “interpret” is defined narrowly—it means something more than “consider,”
“refer to,” or “apply.” ’ [Citation.] And, notably, ‘a defendant cannot, merely by
injecting a federal question into an action that asserts what is plainly a state law claim,
transform the action into one arising under federal law.’ ” (Kobold, supra, 832 F.3d at p.
1033.)
                2. Analysis
         All of plaintiffs’ claims here are based on nonnegotiable state law policies against
medical condition discrimination and related torts (under FEHA), whistleblower
retaliation (under Lab. Code, § 1102.5), and discipline in violation of public policies set
by positive law (here, FEHA and the workers’ compensation statutes).
         Plaintiffs’ primary claims are that Save Mart violated FEHA by not
accommodating their medical conditions. Although the CBA might address things like
work assignments and scheduling, which could potentially be relevant in a FEHA suit,
the CBA would not have to be interpreted in order to reference this information. Nor
could the CBA possibly permit Save Mart to violate FEHA by making (or denying) work
assignments because of an employee’s medical condition, rather than for neutral business
reasons. (See Matson v. United Parcel Service, Inc. (9th Cir. 2016) 840 F.3d 1126, 1133-
1134 (Matson) [“Put differently, Matson’s contention is not that UPS created a hostile
work environment by violating her contractual seniority rights. Rather, her position is
that failing to assign her the work despite her seniority is evidence of UPS’s hostility
toward her because of her gender”].)
         Generally, a claim based on a “nonnegotiable” right will rarely require
interpretation of a CBA, which by definition represents the culmination of negotiations
between labor and management. (See, e.g., White, Section 301’s Preemption of State
Law Claims: A Model for Analysis (1990) 41 Ala. L.Rev. 377, 425-426
[“ ‘nonnegotiable’ rights are designed to protect the public good rather than the rights of

                                              12
a single individual;’ ” and “State law claims of discrimination and of retaliatory discharge
are the most frequently encountered claims in the section 301 preemption context. At the
outset, it should be noted that such claims will rarely be completely preempted”].) One
California treatise collects cases finding various rights were nonnegotiable state law
rights, including retaliatory discharge, discharge in violation of public policy, and
discrimination “based on protected classifications such as race, age, sex, disability, etc.,”
among others. (Cal. Practice Guide: Employment Litigation (The Rutter Group 2017)
Preemption Defenses, §§ 15:301-316.) And the Ninth Circuit has observed that in the
enforcement of state law employment discrimination protections: “Litigation concerning
such protections ordinarily focuses on adverse workplace incidents, probing into whether
discriminatory motives underlay those incidents. As the focus is not only on what
happened but why it happened, resolving such litigation will rarely rest on rights created
by CBAs or require interpreting CBAs in the sense required for § 301 preemption.”
(Matson, supra, 840 F.3d at p. 1136, italics added.)
       Here, Robles and Rymel allege they were required to wear degrading safety vests.
Save Mart argues it would defend the claims on the ground that the custom and practice
at the warehouse--endorsed by the union local--called for workers with certain tasks to
wear those vests, and Robles and Rymel were not treated differently than other similar
workers.5 That defense might look to the CBA or union practices to ascertain the ability
of Save Mart to impose safety rules, but Save Mart does not demonstrate that it would
require an interpretation of the CBA. Robles and Rymel would have the burden to show
they were forced to wear degrading safety vests for discriminatory reasons violating




5  “Under longstanding labor law principles, the scope and meaning of a [CBA] is not
limited to the text of the agreement. Instead, ‘the industrial common law—the practices
of the industry and the shop—is equally a part of the [CBA] although not expressed in
it.’ ” (Kobold, supra, 832 F.3d at p. 1046.)

                                             13
FEHA, and if they were, nothing in the CBA would change that fact or require
interpretation.6
         Similarly, if Hagins were disciplined because he reported the narrow aisle safety
hazard that later led Cal-OSHA to cite Save Mart, nothing in the CBA would (or could)
protect Save Mart from liability, nor would interpretation of the CBA be necessary.
         Save Mart argues it fired Hagins for repeatedly violating production norms
endorsed by the CBA and the custom and practice between the union local and Save
Mart, and that it followed all progressive discipline rules set forth therein, and makes
similar claims as to the other plaintiffs. If proven, these points could well provide Save
Mart with solid defenses. But the CBA does not have to be interpreted to make out these
defenses, it merely needs to be consulted, or viewed. (See Kobold, 832 F.3d supra, at p.
1033.)
         Save Mart asserts that Rymel’s and Roble’s FEHA claims are based on the
application of work rules under the CBA, legitimate request for medical documentation
as provided by the CBA and governing customs, or neutral (grievable) rules about
modified work duties. But again, claims that Save Mart acted with an improper motive
do not depend on interpreting the CBA.
         The two cases Save Mart appears to rely on most heavily prove inapposite and
unpersuasive. Ruiz, supra, 122 Cal.App.4th 520 involved common law claims, not
statutory claims. Ruiz was fired but then reinstated through a grievance under the
relevant CBA; he then sued his employer for defamation and related torts based on “the


6 Although the legal theories differ in some ways, all the alleged claims require a finding
of discriminatory or retaliatory intent. (See, e.g., Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 232 [FEHA plaintiff must show discrimination was a “substantial
motivating factor” in adverse employment decision]; Morgan v. Regents of University of
California (2000) 88 Cal.App.4th 52, 69 [whistleblower must prove retaliatory motive];
Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426 [retaliatory
termination in violation of public policy].)

                                             14
employer’s conduct during the investigation and interviews . . . and subsequent
notification of the police of alleged false accusations.” (Id. at pp. 524, 529.) The
relevant CBA required the employer to investigate the matter, and Ruiz held the claims
raised were necessarily intertwined with that investigation. (Id. at p. 530.) The cases
here are nothing like Ruiz.
       Evangelista v. Inlandboatmen’s Union of Pacific (9th Cir. 1985) 777 F.2d 1390 is
even further afield. There the employee was suing because a grievance proceeding
initiated by another employee resulted in her loss of seniority; she initiated a second
grievance challenging the decision, to no avail. (Id. at pp. 1393-1394.) She sued, in part
alleging wrongful discharge, interference with economic advantage and inducing breach
of contract. (Id. at pp. 1394, 1400.) Her claims were ruled preempted by section 301
because they hinged on whether the relevant CBA authorized the seniority decision or
implicated her union’s duty to fairly represent her. (Id. at p. 1401.) The Ninth Circuit
pointed out that “Evangelista does not allege that her reduction in seniority interferes
with any independent state public policy.” (Ibid.) Evangelista does not help Save Mart,
because here plaintiffs do allege violations of independent state public policies.
       Accordingly, none of the plaintiffs’ claims are preempted.
       C. Infringement
       Finally, Save Mart contends that allowing any of plaintiffs’ claims to proceed
would “infringe” on the arbitration grievance process set out in the CBA. Save Mart
explains that the CBA establishes a for-cause disciplinary scheme with strict procedural
safeguards for employees, and argues that allowing these civil tort suits to go forward
would frustrate those protections. Save Mart speculates that if any plaintiff succeeded in
court, he might leverage that finding to argue the “just cause” provision of the CBA was
violated even if both the union local and Save Mart agreed the discipline at issue was
appropriate, thereby exposing Save Mart to liability under the CBA by effectively
bypassing its arbitration grievance procedures.

                                             15
       Save Mart cites Ruiz to argue that if an employee’s claims do not require
interpretation of the CBA, “the court must determine whether permitting the state law
claims to proceed would infringe upon the arbitration process established by the [CBA].’
[Citation.]” (Ruiz, supra, 122 Cal.App.4th at p. 529.) Ruiz was quoting from Tellez v.
Pacific Gas and Elec. Co., Inc. (9th Cir. 1987) 817 F.2d 536 (at p. 538). It appears the
infringement language was first used casually by Tellez and was interpreted by Ruiz and a
federal district court (Riggs v. Continental Baking Co. (N.D. Cal. 1988) 678 F.Supp. 236,
238) as if there were a separate infringement test. A treatise also quotes that part of
Tellez, albeit with no analysis. (See 2 Advising Cal. Employers and Employees
(Cont.Ed.Bar 2018) Mediation and Arbitration of Employment Disputes, § 20.34.) Save
Mart does not clearly explain the test for purported infringement, nor does Save Mart
explain how it would be functionally different from the other ways to determine whether
allowing a civil suit to proceed will disrupt the expected (and federally protected) labor-
management bargain consummated by a CBA.7
       Assuming the “infringement” test Save Mart invokes exists, Save Mart does not
explain how its application would make a difference in this case. Save Mart explains that
disputes about the employee termination and production norm provisions of the CBA are
intended to be resolved through grievances. As an abstract proposition we do not
disagree. But we fail to see how that changes the analysis we have already conducted,
which covers Save Mart’s points. The plaintiffs retain an independent (nonnegotiable)




7 Save Mart also cites two cases to suggest they endorsed the “infringement” test, but
neither case does so. (See Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753;
Rodriguez v. Pacific Casting Co. (N.D. Cal. 2012; No. 12-CV-00353NC) U.S. Dist.
Lexis 76757.)

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state law right to be free of discipline caused by protected activity, such as
whistleblowing (Hagins) or exercising his FEHA rights (all plaintiffs).8
                                      DISPOSITION
       The orders denying Save Mart’s motions to compel arbitration are affirmed. Save
Mart shall pay each plaintiff’s costs on appeal. (See Cal. Rules of Court, rule 8.278.)




                                                        /s/
                                                  Duarte, J.



We concur:



     /s/
Murray, Acting P. J.




     /s/
Hoch, J.




8  We also decline to address Save Mart’s hypothetical about a plaintiff prevailing (that
is, proving Save Mart violated FEHA or the California whistleblower statute) and then
bringing a separate suit or filing a grievance under the CBA raising the same claims. The
hypothetical does not change our analysis of Save Mart’s claims about the instant
lawsuits presently before the court.

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