When Are Union Members Required To Arbitrate Their Wage and Hour Claims? Only when the CBA Clearly and Unmistakably Waives Their Right to a Judicial Forum

An issue that sometimes arises for union members who are subject to a collective bargaining agreement (CBA) is whether they must use the grievance and arbitration mechanism provided for in the CBA for any wage and hour claims (failure to pay overtime, failure to provide meal and rest breaks, etc.), or whether they can sue in court.   Federal and state authorities establish that the primary test for resolving this question is whether the CBA clearly and unmistakably provides that union members must arbitrate their statutory claims.  Under the primary test, broad and vague language is not enough.  The CBA must explicitly state that it requires individuals to arbitrate their statutory claims.  Federal and state authorities also establish an alternative test.  Under the alternative test, a general arbitration clause coupled with an explicit incorporation of statutory requirements elsewhere in the CBA may result in a requirement that the employees arbitrate their statutory claims.  These tests are both explored in more detail below.

In ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute.”  Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.  Under both federal and state law, “a collective bargaining agreement validly waives a union member’s right to litigate federal or state claims in a judicial forum only if the waiver is clear and unmistakable.” Choate v. Celite Corp. (2013) 215 Cal.App.4th 1460, 1465, citing Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, 434–435; 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, 272, 274.

In order to be clear and unmistakable, an arbitration agreement must explicitly state that the employees agree to submit their statutory claims to arbitration.  Vasquez, supra, 80 Cal.App.4th at 435.  Alternatively, a waiver in a CBA may be sufficiently clear if broad, nonspecific language in the arbitration clause is coupled with “an ‘explicit incorporation of statutory . . . requirements’ elsewhere in the contract.”  Id.

A.UNION-NEGOTIATED WAIVERS IN COLLECTIVE BARGAINING AGREEMENTS ARE NOT ENFORCEABLE UNLESS THEY ARE CLEAR AND UNMISTAKABLE.

A union member is only required to arbitrate claims that are clearly and unmistakably identified and subject to a CBA.  14 Penn Plaza LLC, supra, 556 U.S. at 274.  The presumption of arbitrability does not apply where employees who are subject to a CBA bring suit for statutory violations.[1]  Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 78-79.

As the U.S. Supreme Court has recognized, a union-negotiated waiver of employees’ right to a judicial forum must be “clear and unmistakable.”  Id. at 80.  Courts “will not infer from a general contractual provision that the parties intended to waive a statutorily- protected right unless the undertaking is ‘explicitly stated.’”  Id.  This is because, “the right to a . . . judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a [collective bargaining agreement].”  Id. 

California courts have held without exception that “broad, general language is not sufficient to meet the level of clarity required to effect a waiver in a collective bargaining agreement.”  Vasquez, supra, 80 Cal.App.4th at 435.  As the Second Appellate District explained in Vasqez:

In the collective bargaining context, the parties “must be particularly clear” about their intent to arbitrate statutory discrimination claims.  A waiver in a collective bargaining agreement is sufficiently clear if it is found in an explicit arbitration clause. “Under this approach, the [collective bargaining agreement] must contain a clear and unmistakable provision under which the employees agree to submit to arbitration all [state and federal statutory] causes of action arising out of their employment.”

A waiver in a collective bargaining agreement may also be sufficiently clear if broad, nonspecific language in the arbitration clause is coupled with “an ‘explicit incorporation of statutory antidiscrimination requirements’ elsewhere in the contract.  If another provision, like a nondiscrimination clause, makes it unmistakably clear that the discrimination statutes at issue are part of the agreement, employees will be bound to arbitrate their [state and federal statutory] claims.”

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 [] statutes.  Compliance with a particular statute must be an express contractual commitment in the collective bargaining agreement.

80 Cal.App.4th at 435.  (Citations omitted)

Wright and Vasquez remain good law in the wake of AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333.  See Mendez, 220 Cal. App. 4th at 547 (rejecting the argument that Concepcion overruled Wright and Vasquez); Choate, supra, 215 Cal.App.4th at 1465 (“[A] collective bargaining agreement validly waives a union member’s right to litigate federal or state claims in a judicial forum only if the waiver is clear and unmistakable.”); Wawock v. CSI Electrical Contractors, Inc. (2014) 2014 U.S. Dist. LEXIS 150094 at p. 6 (“[Courts] will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is explicitly stated.”).

The analysis in Wright and Vasquez applies equally to wage and hour claims brought under the California Labor Code.  See, e.g., Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429, 441 (no requirement to arbitrate meal period violations where the CBA does not “expressly relate” to such claims).  The Bearden court looked to Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949 for guidance.  In Cicairos, the court concluded that plaintiffs were not required to arbitrate the statutory claims because the CBA did not contain a provision “whereby the plaintiffs agreed to arbitrate alleged violations of statutory rights.”  Cicairos, supra, 133 Cal.App.4th at 959.

1. The Primary Test.

In order for a CBA to compel employees to waive a judicial forum for their statutory claims, the arbitration provision must be “particularly clear.”  Volpei v. County of Ventura (2013) 221 Cal.App.4th 391, 394 (citations omitted).  “Broad, general language is not sufficient to meet the level of clarity required to effect a waiver in a [collective bargaining agreement.”  Vasquez, supra, 80 Cal.App.4th at 435.

In Mendez, the court Second District Court of Appeal affirmed the trial court’s denial of a motion to compel arbitration based upon the following facts:

The arbitration provision in the collective bargaining agreement between Mid-Wilshire and the union contains very general language regarding grievances. 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. Nothing in the agreement makes non-compliance with FEHA subject to the arbitration provision.

220 Cal.App.4th at 544; see also Vasquez, supra, 80 Cal.App.4th at 436 (general language making all contractual disputes subject to arbitration not sufficient to compel arbitration); cf. 14 Penn Plaza, supra, 556 U.S. at 252 (finding “claims made pursuant to Title VII of the Civil Right Act [and] the Americans with Disabilities Act . . . shall be subject to the grievance and arbitration procedure . . . as the sole and exclusive remedy for violations” is language sufficient to require arbitration”).

Furthermore, Vasquez cites with approval a Fourth Circuit case, Carson v. Giant Food, Inc. (4th Cir. 1999) 175 F.3d 325, 331.  Carson includes the following language:

General arbitration clauses, such as those referring to “all disputes” or “all disputes concerning the interpretation of the agreement,” taken alone do not meet the clear and unmistakable requirement of Universal Maritime.  When the parties use such broad but nonspecific language in the arbitration clause, they must include an “explicit incorporation of statutory…requirements” elsewhere in the contract.  (citations omitted)

See also Choate supra, 215 Cal.App.4th at 1467 (“To be clear and unmistakable, a waiver must do more than speak in ‘[broad], general language.’”) (citations omitted).

2. The Alternative Test.

The alternative test is described in Flores v. Axxis Network & Telecommunications, Inc. (2009) 173 Cal.App.4th 802, 808:

“If an agreement does not clearly, explicitly, and unmistakably show that the parties intended to make statutory claims subject to arbitration . . . an alternative test for determining whether a dispute was subject to arbitration [is] the coupling of a general arbitration clause with an explicit incorporation of statutory . . . requirements elsewhere in the agreement.”

[1] In Wright, the U.S. Supreme Court explained the basis for this exception:  while arbitrators are generally better qualified to interpret the terms of a collective bargaining agreement, they are not better qualified than judges to interpret and apply statutes.  525 U.S. at 70.

The answer for union members therefore depends on the specific language of the CBA.  Hunter Pyle Law has proudly represented union members in class actions for missed meal and rest breaks, unlawful background checks, and unpaid business expenses (failure to reimburse employees for cell phones used at work).  If you are a union member who has questions about your workplace, please feel free to contact us for a free consultation.  We can be reached at 510.444.4400 (please ask to speak to our Intake Coordinator), or by email at inquire@hunterpylelaw.com.