Filed 9/17/13 Wawock v. Super. Ct. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


RICHARD WAWOCK,                                                       No. B248269

         Petitioner,                                                  (L.A. Super. Ct. No. BC492586)

         v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

         Respondent;

CSI ELECTRICAL CONTRACTORS,
INC.,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for writ of mandate. Elihu M. Berle,
Judge. Writ denied.
         Hayes Pawlenko, Matthew B. Hayes and Kye D. Pawlenko for Petitioner.
         Snell & Wilmer, Frank Cronin, Steve T. Graham and Todd E. Lundell for Real
Party in Interest.
         No appearance for Respondent.


                                __________________________________
       Plaintiff Richard Wawock petitions for a writ of mandate. He seeks to have
respondent court vacate its order referring to an arbitral body the question of whether his
statutory wage and hour claims are subject to the grievance and arbitration procedure of
his collective bargaining agreement. We deny the petition.


                       FACTS AND PROCEDURAL HISTORY


       Wawock is an electrician and a member of Local Union 11 of the International
Brotherhood of Electrical Workers (Union). He was employed by CSI Electrical
Contractors (CSI Electrical) from 2006 to 2007 and 2009 to 2013. On September 21,
2012, Wawock brought a class action against CSI Electrical asserting that it failed to pay
wages to its electricians for time spent attending mandated training courses on topics
such as safety, first aid, and preventing harassment. He stated causes of action for
violation of the Labor Code and controlling Wage Orders regarding payment of wages or
overtime, payment of minimum wages, reimbursement of travel expenses, provision of
accurate wage statements, and timely payment of wages. He also sought an injunction
and attorney fees under the unfair competition law, Business and Professions Code
section 17200 et seq., and penalties and attorney fees under the Private Attorneys General
Act, Labor Code section 2698 et seq.
       CSI Electrical is a member of the Los Angeles County Chapter of the National
Electrical Contractors Association (Chapter). The Chapter had engaged in collective
bargaining with the Union and had entered an agreement covering all members of those
two organizations. Upon receiving a copy of Wawock’s complaint, CSI Electrical filed a
grievance with the Union asserting that by filing his complaint, Wawock had violated the
collective bargaining agreement. CSI Electrical also brought a “Motion to Compel
Arbitration” before respondent court, seeking an order compelling Wawock to submit his
claims to the grievance and arbitration procedure established by the collective bargaining




                                             2
agreement and dismissing the complaint.1 CSI Electrical argued that Wawock’s claims
were essentially seeking wages due, were covered by the terms of the collective
bargaining agreement, and had to be resolved through the grievance and arbitration
procedure contained therein. Further, it asserted the very question of whether Wawock’s
claims were subject to the grievance and arbitration procedure was for a labor-
management committee in charge of the procedure to decide, not the court.
       The grievance and arbitration procedure is set forth in Article I of the collective
bargaining agreement.2 It requires that “all grievances or questions in dispute shall be
adjusted by the duly authorized representatives of each of the parties to this Agreement.
In the event that these two are unable to adjust any matter within forty-eight (48) hours,
they shall refer the same to the Labor-Management Committee [(Committee)],” a
committee consisting of three labor and three management representatives. Should the
Committee fail to resolve an issue, then it would be referred to binding arbitration.
       Additional provisions contained in Article VII of the collective bargaining
agreement elaborate on the Committee’s powers. Section 7.56 specifically provides:
       “The Labor-Management Committee shall have the right not only to
       determine whether there has been a violation of this Agreement, but shall
       also have the right to devise an appropriate remedy consistent with the
       interpretation and applicable [sic] of this Agreement, including allowance
       of attorney[] fees, cost of enforcement and interest from the date of decision
       . . . . In addition, the Labor-Management Committee shall have the right to
       determine whether a party cited before these bodies have been properly
       cited and whether the provisions for notice [contained elsewhere in Article


       1
         Initially, CSI Electrical attempted to remove Wawock’s complaint to federal
court based on preemption, but the District Court remanded the matter to respondent
court.
       2
        Two consecutive collective bargaining agreements covered Wawock’s time at
CSI Electrical. Each contains the same language regarding the grievance and arbitration
procedure so they are referred to singularly.


                                              3
       VII] have been complied with. The Labor-Management Committee shall
       have the further right to determine whether a party is signatory to this
       Agreement, whether any particular dispute is subject to the grievance
       procedure of this Agreement, and shall have the right to determine any and
       all defenses and contentions, legal or otherwise, raised by any person. . . .”
       In support of its motion to compel, CSI Electrical submitted the undisputed
declaration of the executive director of the Chapter, who is also a member of the
Committee. He stated that during his time on the Committee, Articles I and VII of the
collective bargaining agreement have always been understood to constitute a single
grievance procedure. While he acknowledged the collective bargaining agreement does
not cover the issue of compensation for attending all types of training sessions, he
indicated the parties have entered a memorandum of understanding regarding payment of
a stipend from Union funds to electricians receiving specialized safety training and
opined that similar treatment of all training classes was appropriate.
       Respondent court granted CSI Electrical’s motion. The court found committing
the gateway question of whether the dispute was subject to the grievance and arbitration
procedure to the Committee was clear and unmistakable. Respondent court therefore
ordered the parties to place the matter before the Committee for a decision. It stayed the
action pending “resolution of the question of arbitrability.”3 Wawock filed this petition
for writ of mandate challenging respondent court’s ruling. We issued an alternative writ
of mandate and set the matter for briefing and oral argument. We now deny the petition.




       3 CSI Electrical requests that we take judicial notice of the Committee’s
subsequent finding that Wawock’s claims are subject to the collective bargaining
agreement’s grievance and arbitration procedure. The request is denied. The decision
occurred after the ruling under review so it is not properly part of the record. (People v.
Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1173, fn. 5.)



                                              4
                                      DISCUSSION


       The parties have a substantial dispute over whether Wawock’s statutory wage
claims are covered by the collective bargaining agreement and so subject to the grievance
and arbitration procedure set forth in that contract. However, there is an initial question
that must be answered before such a determination can be made. That is “who” should
decide the issue—the Committee or the court. After consideration of the language of the
agreement and the relevant case law, we conclude the Committee was given authority to
make the determination.4
       The United States Supreme Court has repeatedly set forth the relevant principles
for determining who decides threshold issues of arbitrability. In Rent-A-Center, West,
Inc. v. Jackson (2010) 561 U.S. ___ [130 S.Ct. 2772, 2776], the court confirmed that
arbitration is a matter of contract. The contracting parties are free to designate who
should consider whether a given dispute is subject to arbitration. (Id. at p. ___ [130 S.Ct.
at p. 2777].) There is a presumption that the court will decide such issues because parties
are not expected to anticipate that an arbitrator will determine his or her own jurisdiction.
(First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944-945 (Kaplan); AT&T
Technologies, Inc. v. Communications Workers (1986) 475 U.S. 643, 649.) Nevertheless,
if the parties manifest a clear and unmistakable intent to commit threshold determinations
of arbitrability to the arbitrator, their agreement must be upheld. (Kaplan, supra, at p.
944; see also American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. ___
[133 S.Ct. 2304, 2309].)
       In determining whether a particular contract manifests clear and unmistakable
intent, we apply the usual rules of contract interpretation. (Kaplan, supra, 514 U.S. at
p. 944; Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 553 (Dream
Theater).) Language will be given its ordinary meaning, and the parties’ intent given

4      Wawock does not dispute CSI Electrical’s assertion that the Federal Arbitration
Act, 9 U.S.C. § 1 et seq., applies to the collective bargaining agreement at issue in this
case. We do not consider the issue further.


                                              5
effect. (Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, 1437 (Greenspan).)
The terms of the collective bargaining agreement must be read as a whole. (General
Precision, Inc. v. International Association of Machinists (1966) 241 Cal.App.2d 744,
746-747.) Applying those principles here, the agreement at issue reveals the parties’
intent to have the Committee decide whether Wawock’s claims are subject to the
grievance and arbitration procedures.
       The dispositive clause of the agreement appears in section 7.56, providing broadly
that the Committee shall decide “whether any particular dispute is subject to the
grievance procedure of this Agreement.” The entirety of section 7.56 operates to give the
Committee overarching authority to determine who is subject to the agreement, whether
the terms of the collective bargaining agreement were met, and what remedies would be
appropriate to resolve any given dispute. Reading those provisions as a whole and in
their plain and ordinary sense, and keeping in mind that they are contained in a collective
bargaining agreement, the parties’ intent to have all disputes between them reviewed by
the Committee, and an arbitrator if necessary, is manifest. While it is true that CSI
Electrical’s witness acknowledges compensation for some of the training sessions at issue
were not specifically addressed in the agreement, Wawock does not dispute the witness’s
further statement that the parties have reached a memorandum of understanding as to
how other training requirements will be compensated or his conclusion that the training
Wawock mentions should be handled similarly. Given such undisputed testimony to
buttress the terms of the agreement, the parties’ intent remains clear.
       Wawock asserts that even if the contract clearly and unmistakably gives authority
to the Committee to decide arbitrability, the court should still find the attempt to bring his
statutory wage claims within the grievance and arbitration procedure is wholly
groundless within the meaning of Qualcomm Inc. v. Nokia Corp. (Fed. Cir. 2006) 466
F.3d 1366, 1371 (Qualcomm) and Dream Theater, supra, 124 Cal.App.4th at page 553.5

5      Wawock suggests the matter must be remanded to the trial court to conduct such
an analysis, but because the facts are undisputed, we can make the assessment in the first
instance. (Greenspan, supra, 185 Cal.App.4th at p. 1443.)


                                              6
He believes it is wholly groundless because the question of whether his claims are
arbitrable must be answered in the negative. Wawock’s arguments bleed into a
discussion of the merits of whether his claims fall within the scope of the collective
bargaining agreement, as opposed to who should decide that issue. However, the wholly
groundless analysis is a secondary, limited inquiry that is not intended to reach the merits
of the arbitrability question, lest the court invade the province of the arbitrator.
(Qualcomm, supra, at pp. 1371, 1374; Greenspan, supra, 185 Cal.App.4th at p. 1443.)
       The court in Qualcomm, supra, 466 F.3d at page 1373, footnote 5 described a
wholly groundless arbitrability claim as something that is divorced from the parties’
agreement. The court in Greenspan, supra, 185 Cal.App.4th at page 1443 noted that the
examination focused on the scope of the arbitration agreement and the precise issue
involved. Looking to the same factors here, it cannot be said that Wawock’s wage claims
are so wholly unrelated to the collective bargaining agreement at issue that they cannot
fall within the contract’s terms. In fact, wages due to Union members is a major element
of the collective bargaining agreement, so CSI Electrical can reasonably argue that
Wawock’s claims fall within the scope of the agreement. While we are not convinced
that CSI Electrical’s position on the merits of the arbitrability claim is correct, it is a
matter that has been committed to the Committee for decision. (See Wright v. Universal
Maritime Service Corp. (1998) 525 U.S. 70, 80 [court will not infer from a general
contractual provision that the parties intended to waive a statutory right]; Vasquez v.
Superior Court (2000) 80 Cal.App.4th 430, 434-435 [statutory requirements must be
adopted sufficiently to become obligations under the contract].) As the United States
Supreme Court recently reiterated, courts must not interfere with arbitrators’ decisions
made within the scope of their authority. (Oxford Health Plans LLC v. Sutter (2013) 569
U.S. ___ [133 S.Ct. 2064, 2070-2071].)




                                               7
                                        DISPOSITION


      The petition for writ of mandate is denied. Each party is to bear its own costs in
this proceeding.




             KRIEGLER, J.




I concur:




             TURNER, P. J.




                                            8
MOSK, J., Dissenting


       I dissent.
       The contention that the collective bargaining agreement clearly and unmistakably
provides for arbitration of statutory claims “is wholly groundless,” and therefore, there is
no basis for the Labor-Management Committee to decide arbitrability. (See McCarroll v.
L.A. County Etc. Carpenters (1957) 49 Cal.2d 45, 65; Greenspan v. LADT, LLC (2010)
185 Cal.App.4th 1413, 1443; Dream Theater, Inc. v. Dream Theater (2004) 124
Cal.App.4th 547, 553; Qualcomm Inc. v. Nokia Corp. (Fed. Cir. 2006) 466 F.3d 1366,
1373-1374.) The authorities render wholly groundless any suggestion that the statutory
claim for wages due under the Labor Code and claims made by plaintiff under Labor
Code section 2698 et seq. (Private Attorneys General Act or PAGA) and Business and
Professions Code section 17200 (Unfair Competition Law) are arbitrable without being
covered specifically in the arbitration agreement.
       In Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70 (Wright), a
longshoreman sued six stevedore companies in District Court, alleging they had
discriminated against him under the Americans with Disabilities Act by refusing to hire
him because he made a disability claim in the past. (Id. at pp. 74-75.) The District Court,
as affirmed by the Fourth Circuit, dismissed the longshoreman’s claims, concluding they
were subject to the grievance procedures set out in the parties’ collective bargaining
agreement and a seniority program to which the longshoreman belonged. As in the
grievance procedure at issue in this case, the grievance system in Wright stated, “‘Matters
under dispute which cannot be promptly settled between the Local and an individual
Employer shall, no later than 48 hours after such discussion, be referred in writing
covering the entire grievance to a Port Grievance Committee.’” (Id. at p. 72.) If the Port
Grievance Committee, which was evenly divided between representatives of labor and
management, could not reach an agreement within five days of receiving the complaint,
then the dispute was to be referred to a District Grievance Committee, also evenly
divided between labor and management. That Committee could reach a “‘final and
binding’” decision on the matter by majority vote. If no majority could be reached, then
a professional arbitrator would be employed. (Id. at pp. 72-73.)
       The collective bargaining agreement in Wright, supra, 525 U.S. 70, covered “‘all
matters affecting wages, hours, and other terms and conditions of employment.’” It
further stated, “‘Anything not contained in this Agreement shall not be construed as being
part of this Agreement.’” (Id. at p. 73.) Moreover, it stated that “‘no provision or part of
this Agreement shall be violative of any Federal or State Law.’” (Ibid.) The union’s
seniority program provided for its own, similar grievance procedure presumably
regarding matters concerning seniority. (Id. at pp. 73-74))
       Given that broad language, the U.S. Supreme Court reversed the lower courts’
conclusion that the longshoreman’s claims under the Americans with Disabilities Act
were subject to the grievance procedure. The Court held that a collective bargaining
agreement’s waiver of a judicial forum for an individual’s statutory rights must be clear
and unmistakable. “‘We will not infer from a general contractual provision that the
parties intended to waive a statutorily protected right unless the undertaking is “explicitly
stated.” More succinctly, the waiver must be clear and unmistakable.’” (Id. at p. 80,
quoting Metropolitan Edison Co. v. NLRB (1983) 460 U.S. 693, 708.) Because the
collective bargaining agreement before the Court was “very general,” and simply referred
“matters under dispute” into its grievance procedures without explicitly including
statutory claims, there was no unmistakable intent to waive the judicial forum for such
claims. (Id. at pp. 80-81.) Moreover, the Court noted, although claims for “wages, hours
and other terms and conditions of employment” were made part of the collective
bargaining agreement, the fact that the agreement went on to say “anything not contained
in this Agreement shall not be construed as being part of [it]” meant that discrimination
claims under the Americans With Disabilities Act could not be construed as part of the
conditions of employment. (Id. at p. 81.)
       The U.S. Supreme Court again addressed whether a collective bargaining
agreement could waive an individual’s right to a judicial forum with regard to statutory
claims in 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247 (14 Penn Plaza). There, the

                                              2
Court confirmed that such a waiver could be accomplished provided the terms of the
collective bargaining agreement “expressly cover[] both statutory and contractual . . .
claims.” (Id. at p. 264.) The specificity approved by 14 Penn Plaza brought
discrimination claims into the grievance procedure by stating, “‘There shall be no
discrimination against any present or future employee by reason of race, creed, color,
age, disability, national origin, sex, union membership, or any characteristic protected by
law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights
Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act,
the New York State Human Rights Law, the New York City Human Rights Code, . . . or
any other similar laws, rules, or regulations. All such claims shall be subject to the
grievance and arbitration procedure (Articles V and VI) as the sole and exclusive remedy
for violations. Arbitrators shall apply appropriate law in rendering decisions based upon
claims of discrimination.’” (Id. at p. 252.) That specificity, which was sufficient for
arbitrability in that case, is lacking here.
       Other cases involving arbitration clauses similar to the one in the instant case have
also recognized that in order to include statutorily-based claims in a grievance procedure,
the terms of a collective bargain must be specific, and not general. (See, Jonites v.
Exelon Corp. (7th Cir. 2008) 522 F.3d 721, 725 [claims under Fair Labor Standards Act,
29 U.S.C. § 201 et seq. (FLSA)]; O’Brien v. Town of Agawam (1st Cir. 2003) 350 F.3d
279, 284-286 [FLSA claims]; Eastern Associated Coal Corp. v. Massey (4th Cir. 2004)
373 F.3d 530 [state statutory workers compensation discrimination and disability
discrimination claims]; Martinez v. J. Fletcher Creamer & Son, Inc. (C.D. Cal. 2010 WL
3359372 [FLSA claims and California wage and hour claims, including meal period
claims]; Prince v. Coca-Cola Bottling Co. (S.D.N.Y. 1999) 37 F.Supp.2d 289 [Civil
Rights Act]; Conde v. Yeshiva University (N.Y. 2005) 792 N.Y.S.2d 387 [wage and
hours].)
       A union waiver of employee statutory rights in a collective bargaining agreement
can “be effected only by the most ‘explicit’ language, without any resort to inference.”
(Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 405.) Many California

                                               3
cases have held that collective bargaining agreements did not clearly and unmistakably
require arbitration of statutory claims. They generally involve arbitration clauses that
provide that disputes concerning the interpretation and application of the agreement are
subject to arbitration. (See, e.g., Flores v. Axxis Network & Telecommunications, Inc.
(2009) 173 Cal.App.4th 802, 808 [procedure for resolving disputes involving
interpretation or application of the agreement, as well as disputes concerning wages,
working hours and conditions]; Marcario v. County of Orange, supra, 155 Cal.App.4th at
pp. 401, 405-407 [grievance may be filed if management's interpretation of MOU
adversely affects employee's wages, hours or conditions of employment]; Cicairos v.
Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 960 [grievance arising out of alleged
violation of a specific provision of the agreement]; Camargo v. Cal. Portland Cement Co.
(2001) 86 Cal.App.4th 995, 1018 [arbitration of any dispute, difference, or grievance as
to the meaning and application of and compliance with the provisions of the agreement];
Vasquez, supra, 80 Cal.App.4th at p. 433 [all grievances or disputes arising between the
parties over the interpretation or application of the terms of the agreement]; Martinez v. J.
Fletcher Creamer & Son, Inc., supra, 2010 WL 3359372, *1 [grievance procedure for
enforcing all the terms and provisions contained in the agreement].) In this case, the
collective bargaining agreement’s committing “all” grievances and disputes to the
grievance procedure does not refer to statutory claims and thus cannot be construed as a
clear and unmistakable intent to include Wawock’s statutorily-based claims.
       In summary, CSI Electric’s position that the collective bargaining agreement
clearly and unmistakably subsumed all of Wawock’s claims is wholly groundless. The
trial court should have decided the arbitrability issue, and then declined to send the matter
to the grievance procedure.




       I would grant the petition.




                                             4
MOSK. J.




  5
