Filed 11/7/13
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                        DIVISION SIX


MARK D. VOLPEI,                                             2d Civil No. B243954
                                                      (Super. Ct. No. VENC100395788)
     Plaintiff and Respondent,                             (Santa Barbara County)

v.

COUNTY OF VENTURA,

     Defendant and Appellant.



                  An employee is a member of a union whose collective bargaining
agreement provides that the union may submit a grievance to arbitration. Here we
conclude that this provision does not preclude the employee with a statutory grievance
against his employer from filing a judicial action.
                  The County of Ventura (County) appeals from an order denying its petition
to compel arbitration of Mark D. Volpei's claims for retaliation, harassment and
discrimination under the California Fair Employment and Housing Act (FEHA). (Gov.
Code, § 12940 et seq.) We conclude that Volpei is not bound to arbitrate his claims
under the terms of a memorandum of agreement (MOA) between the County and his
bargaining representative, the Ventura County Deputy Sheriffs' Association
(Association), because the MOA does not provide for a clear and unmistakable waiver of
Volpei's right to a judicial forum for his statutory discrimination claims. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
              In 1994, Volpei was an investigator for the Ventura County District
Attorney's office. The Association entered into an MOA with the County governing
Volpei's conditions of employment.
              In April 2011, Volpei filed a complaint against the County for retaliation,
harassment, disability discrimination, and other claims pursuant to the FEHA. Among
other things, he alleged that the County harassed him because he disclosed that the
district attorney's office had abused its authority and violated the law. He alleged the
County also harassed him because he testified for a co-worker in his co-worker's sexual
harassment claim against the County. He also alleged that the County failed to
accommodate his physical disability and that it violated the Public Safety Officer's
Procedural Bill of Rights Act. (Gov. Code, §§ 3300-3312.)
              In its answer to Volpei's complaint, the County asserted 20 affirmative
defenses, none of which invoked an agreement to arbitrate. It conducted written
discovery, moved for summary judgment, and entered into stipulations concerning the
trial date.
              In July 2012, the County filed a petition to compel arbitration of Volpei's
claims, citing a provision of the MOA. Article 30 of the MOA sets forth a "Grievance
Procedure." A "grievance" is defined to include employee disputes over the terms of the
MOA or "a complaint of illegal discrimination because of the charging party's . . . sex,
[or] physical disability . . . ." (MOA, § 3003.) The grievance procedure begins with an
informal complaint and then entails a three-step formal complaint process. (MOA,
§ 3006.) "A grievance unresolved in the steps enumerated above may be submitted to
arbitration by the Association by submitting a letter requesting that the grievance be
submitted to arbitration to the Director-Human Resources within fourteen (14) calendar
days after the Department Head renders a decision." (MOA, § 3007(A), italics added.)
The MOA provides that the decision of the arbitrator "shall be final and binding upon the
County, [the Association] and the employee affected, subject to judicial review." (MOA,



                                             2
§ 3007(D).) It also provides that "[a]t any step of the grievance procedure the employee
may represent himself . . . ." (MOA, § 3004.)
              The trial court denied the petition to compel arbitration because the
arbitration provision was unilateral and permissive and did not clearly and unmistakably
waive Volpei's right to a judicial forum for his statutory discrimination claims. The court
did not decide Volpei's alternative argument that the County waived arbitration by
participating in litigation for more than a year.
                                       DISCUSSION
              Upon petition of a party, the trial court shall compel arbitration if it
determines that an agreement to arbitrate the controversy exists, unless the petitioner has
waived the right to compel arbitration. (Code Civ. Proc., § 1281.2.) Strong public policy
favors arbitration and courts will indulge every intendment to give effect to an agreement
to arbitrate. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) The policy in favor of
arbitration applies to arbitration provisions in collective bargaining agreements, and
contractual claims are generally presumed arbitrable. (Posner v. Grunwald-Marx, Inc.
(1961) 56 Cal.2d 169, 180; Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, 434.)
This presumption does not apply, however, when an employee seeks to litigate a statutory
claim. The arbitration provision for such claims must be "particularly clear." (Wright v.
Universal Maritime Service Corp. (1998) 525 U.S. 70, 79; Vasquez, at p. 434.) An
employee is bound to arbitration as the exclusive forum for statutory claims only if the
union "clearly and unmistakably" waived his or her right to a judicial forum. (14 Penn
Plaza LLC v. Pyett (2009) 556 U.S. 247, 274 (14 Penn Plaza); Wright, at p. 80.)
              We consider de novo the question whether an agreement to arbitrate exists.
(Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th
696, 707.) We conclude that the provision that an unresolved grievance "may be
submitted to arbitration by the Association" is not a clear and unmistakable agreement to
arbitrate Volpei's statutory claims against the County.
              The MOA in the instant case is unlike the MOA in 14 Penn Plaza, supra,
556 U.S. 247. In 14 Penn Plaza, a union clearly and unmistakably waived employee


                                              3
rights to a judicial forum for federal statutory age discrimination claims with this
language: "claims made pursuant to Title VII of the Civil Rights Act [and] the
Americans with Disabilities Act . . . shall be subject to the grievance and arbitration
procedure . . . as the sole and exclusive remedy for violations." (Id. at p. 252.)
              By contrast, the MOA here provides that unresolved grievances "may be
submitted to arbitration by the Association." The provision is permissive and unilateral.
The Association is not a party to the present controversy and did not submit the grievance
to arbitration. Moreover, the MOA defines a grievance to include a "complaint of illegal
discrimination," but does not refer to the FEHA or any other statute. It does not, like the
14 Penn Plaza agreement, "expressly cover[] both statutory and contractual
discrimination claims." (14 Penn Plaza, supra, 556 U.S. at p. 264.) Even if we
construed the grievance definition to implicitly include statutory claims, the provision
that unresolved grievances "may be submitted to arbitration by the Association" does not
clearly and unmistakably require an employee to submit a grievance to arbitration as the
"sole and exclusive remedy" for a statutory violation. (Id. at p. 252.)
              The County argues that the arbitration provision applies to Volpei (not just
the Association) because the MOA allows employees to prosecute grievances
individually. (MOA, § 3004.) That Volpei could have submitted his claims to arbitration
if the Association refused to, is beside the point. It is neither clear nor unmistakable that
he was so required. The County cites no authority holding that a provision similar to the
one here requires an employee with a statutory grievance to submit to arbitration.
              The County argues that the word "may" has been construed in two other
cases to make arbitration mandatory. (Ruiz v. Sysco Food Services (2004) 122
Cal.App.4th 520; International Assn. of Bridge etc. Workers v. Superior Court (1978) 80
Cal.App.3d 346.) Neither case involved an employee's statutory claims. In Ruiz, an
employee was required under a collective bargaining agreement to arbitrate defamation
and tort claims that arose from the terms of the collective bargaining agreement and
were "inextricably intertwined" with his previously arbitrated contractual claims. (Ruiz,
at p. 531.) In dicta, the court construed the following language to be mandatory: "the


                                              4
matter may be referred to arbitration." (Id. at p. 527.) But it also stated that "Ruiz's
contention that there was no mandatory agreement to arbitrate appears to be a new
argument on appeal, which is not properly addressed here." (Id. at p. 532.)
International Assn. of Bridge, concerned an employer's contractual claims against a
union for violating a no strike clause in the collective bargaining agreement. Because it
did not concern statutory claims, the court did not consider whether the provision that
the employer and association "may refer [unsettled disputes] to an agency mutually
agreeable" was a clear and unmistakable wavier of employees rights to a judicial forum.
(International Assn. of Bridge, at p. 353.)
              The word "may" does not create a clear and unmistakable waiver here. It is
permissive, or at least susceptible of a permissive meaning, particularly where "shall" is
used elsewhere in the same provision. (MOA, § 3007(B) ["Arbitrator shall be selected by
mutual agreement"]; § 3007(C) ["Costs of the Arbitration . . . shall be shared
equally . . . ."]) More is required to waive an employee's right to a judicial forum for
statutory claims. Even in Vasquez, where the arbitration provision was "mandatory" and
"binding," the individual employee's right to a judicial forum was not waived because
"grievances" were not explicitly defined to include statutory discrimination claims.
(Vasquez v. Superior Court, supra, 80 Cal.App.4th at pp. 433-434.) The employee in
Vasquez claimed that his discharge violated the FEHA. A collective bargaining provision
required "mandatory, binding arbitration" (id. at p. 433) for disputes arising over "the
interpretation or application of any of the terms of this Agreement, including discharge."
(Ibid.) Because the provision did not specifically identify statutory discrimination
claims, it did not clearly and unmistakably waive his right to a judicial forum. (Id. at p.
436; see also Wright v. Universal Maritime Service Corp., supra, 525 U.S. at p. 82 [a
union did not waive employee rights to a judicial forum for statutory claims because the
grievance procedure was limited to contractual disputes].)
              Similarly, in Mendez v. Mid-Wilshire Health Care Center (2013) 220
Cal.App.4th 534, our colleagues in Division Seven recently concluded that an MOA did
not clearly and unmistakably waive a health care worker's right to a judicial forum for her


                                              5
FEHA claims. The MOA did not specifically identify statutory claims and provided that
a party "may appeal the grievance to arbitration." (Id. at p. 539.)
              Volpei's bargaining representative did not clearly and unmistakably waive
his right to a judicial forum. The provision may have required arbitration of contractual
claims, and may have permitted Volpei to voluntarily arbitrate his statutory claims, but it
did not unambiguously require arbitration as the sole and exclusive remedy for his
statutory discrimination claim.
                                      DISPOSITION
              The order is affirmed. Costs awarded to respondent on appeal.
              CERTIFIED FOR PUBLICATION.




                                          GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




                                             6
                              Thomas P. Anderle, Judge

                       Superior Court County of Santa Barbara

                         ______________________________


             Tron & Tron, Lanny M. Tron, Terry L. Tron, for Plaintiff and Respondent.


             Atkinson, Andelson, Loya, Ruud & Romo, Ronald W. Novotny, Mark T.
Palin, Edward C. Ho, for Defendant and Appellant.




                                          7
