California Mediation and Arbitration

Arbitration, Employment, Nonsignatories: 2/6 Orders Produce Packers To Arbitrate Claims With Co-Employers

Staffing Agency Signed Arbitration Agreement, Packing Employer Did Not Sign.

 

                            Packing fresh prunes at night on Produce Row during busy season, wages two cents per box. Washington, Yakima. Dorothea Lange, photographer. August 1939. Library of Congress.

    Plaintiffs/Respondents Vasquez and Zacarias were hired by a staffing agency, Employer's Depot, Inc. (EDI) which assigned them to a produce packing employer (San Miguel Produce, Inc.). Plaintiffs alleged labor violations by San Miguel Produce, with which they did not have an arbitration agreement, and San Miguel Produce cross-claimed against EDI, which did have an arbitration agreement with Plaintiffs. The superior court denied a motion by San Miguel Produce and EDI to compel arbitration (a) because Plaintiffs did not sue EDI; and (b) because Plaintiffs did not have an arbitration agreement with San Miguel Produce. Vasquez et al. v. San Miguel Produce, No. B287696 (2/6  1/3/19) (Perren, Gilbert, Tangeman) (unpublished).

    Reversed and remanded: "Appellants are co-employers with an identity of interests and mutual responsibility for complying with state law governing employers in the produce packing industry. It is inconsequential that respondents chose not to name EDI as a defendant. They agreed to arbitrate 'all disputes' arising from their employment."

Arbitration, Collective Bargaining: Third District Affirms Orders Denying Employer's Motions To Compel Arbitration

And Employees' Claims Were Not Preempted By Labor Management Relations Act, 1947 (LMRA).

    In three consolidated appeals, the Court of Appeal affirms orders denying the employer's motions to compel arbitration. Rymel v. Save Mart Supermarkets, Inc., and related cases, C085863, C085865, C085886 (3rd Dist. 12/31/18) (Duarte, Murray, Hoch).

    The employees sued defendant Save Mart Supermarkets, Inc., alleging state law statutory employment claims for industrial injuries and torts flowing therefrom, including failure to accommodate, retaliation, and wrongful discharge. After successfully moving to sever, the employer moved to compel arbitration under a collective bargaining agreement (CBA). Its motions failed in the superior court, and it appealed.

    The CBA did not bind the employees to arbitrate, because it failed to clearly and unmistakably require the employees to arbitrate the statutory claims in question. The knottier issue was whether the state law claims were preempted -- not by the Federal Arbitration Act, but by the LMRA, section 301. 

    The Court applied a two-step analysis to the preemption issue. First, the causes of action involved rights conferred upon the employees by virtue of state law, not by the CBA. Second, the rights underlying the state law claims were not "substantially dependent on analysis of a CBA." As the Court explains, "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."

    Affirmed.

    DRAFTING TIP:  Clearly and unmistakably identify in the CBA the statutes and rights that are to be arbitrated. 

    

Arbitration Deadlines: 9th Circuit Holds That Petition To Vacate Arbitration Award Is One Day Late

Opinion Clarifies How To Perform Calculation.

    In Stevens v. Jiffy Lube, No. 17-15965 (9th Cir. 12/27/18) (McKeown, Fletcher, Bybee), the panel affirms the district court's denial of a petition to vacate an arbitration award, on the grounds that the petition was one day late. In doing so, it clarifies how to calculate the deadline.

    The arbitration award was delivered on September 14, 2016, and the petition was filed on December 15, 2016. Look to Federal Rule of Civil Procedure 6(a) for how to calculate the three-month filing deadline under the Federal Arbitration Act's three-month filing deadline. The Federal Rules of Civil Procedure apply to FAA proceedings, unless the FAA provides otherwise.

    1. When the period is stated in days or a longer unit of time (here, three months), exclude the day of the event that triggers the period, here, September 14, 2016.

    2.  Count every day, including intermediate Saturdays, Sundays, and legal holidays.

    3. Include the last day of the period, but if the last days is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.