Mendez v. Mid-Wilshire Health Care Center: Court Denies Petition to Compel Arbitration Where Provision in Collective Bargaining Agreement Does Not "Clearly and Unmistakably" Waive Right to Proceed in Court

Last week I mentioned Volpei v. County of Ventura (11/7/13) --- Cal.App.4th --- (discussed here), which affirmed a trial court order denying a petition to compel arbitration of statutory discrimination claims on grounds that the collective bargaining agreement did not "clearly and unmistakably" waive the employee's right to pursue those claims in court.

Mendez v. Mid-Wilshire Health Care Center (9/23/13, pub. 10/15/13), follows along the same lines:

Under Wright [v. Universal Maritime Service Corp. (1998) 525 U.S. 70], 14 Penn Plaza LLC [v. Pyett (2009) 556 U.S. 247], and Vasquez [v. Superior Court (2000) 80 Cal.App.4th 430], the collective bargaining agreement in this case does not contain a clear and unmistakable agreement to arbitrate statutory discrimination claims. 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 anti-discrimination 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 noncompliance with FEHA subject to the arbitration provision. 

Slip op. at 11. The Court rejected the argument that AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___ (discussed here) has changed this legal landscape. Slip op. at 14-15.

For the time being, arbitration agreements in collective bargaining agreements appear to represent an eddy in the post-Concepcion river of mandatory arbitration jurisprudence. It will be interesting to see whether the California Supreme Court addresses this by granting review in Volpei or Mendez.

In the mean time, Mendez v. Mid-Wilshire Health Care Center is available here.