Unite Here Local 30 v. Volume Services, Inc. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITE HERE LOCAL 30, No. 16-55528
Plaintiff-Appellant, D.C. No.
3:15-cv-01670-MMA-WVG
v.
VOLUME SERVICES, INC., DBA MEMORANDUM *
CENTERPLATE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted December 4, 2017
Pasadena, California
Before: CALLAHAN and BEA, Circuit Judges, and WHALEY,** District Judge.
Unite Here Local 30 (the “Union”) appeals from the district court’s
dismissal of its action against Volume Services, Inc., d/b/a Centerplate, Inc., under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
the Labor Management Relations Act, seeking to compel arbitration of a grievance
concerning the termination of a union member.
The denial of a motion to compel arbitration is reviewed de novo. Pipe
Trades Council of N. Cal., U.A. Local 159 v. Underground Contractors Ass’n of N.
Cal., 835 F.2d 1275, 1278 (9th Cir. 1987).
1. On a motion to compel arbitration, the courts have the duty to
determine whether the agreement requires the parties to arbitrate a particular
grievance. AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648–
50 (1986) (citing United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.
574, 582–83 (1960)). “Although the arbitration clause itself may appear to order
arbitration, other provisions of the contract may clearly and unambiguously negate
or limit the applicability of the arbitration clause.” Pipe Trades Council of N. Cal.,
U.A. Local 159, 835 F.2d at 1278 (citation omitted).
Here, although the Collective Bargaining Agreement (the “CBA”) provides
for arbitration, it does not require arbitration of all disputes, only those disputes
that are not resolved through one of the other dispute resolution processes outlined
in the CBA. The CBA provides the option of either mediation or arbitration to
resolve a dispute between the parties. As such, mediation is not a procedural step
in the grievance process the parties must fulfill in order to continue to arbitration;
rather, it is an alternative process through which the parties may settle the dispute.
2
The court is required to determine whether the arbitration agreement
encompasses the dispute or whether the mediation of the dispute has removed the
grievance from the scope of the arbitration agreement. Thus, it was proper for the
district court to determine whether the parties’ mediation precluded arbitration.
2. While the CBA allows the parties to elect mediation rather than
arbitration on a case by case basis to settle a dispute, the CBA clearly states: “[t]he
Mediator shall render a [] decision” and “[a]ll decisions of the Mediator shall be
binding.” Simply stated, once the parties have elected mediation, the mediation is
binding. Moreover, the CBA states, “[i]n the event that the Federal or State
Mediator has reasonable doubt based upon the evidence heard, he or she shall
abstain from making a decision, and then either party may submit [the] issue in
dispute to an impartial arbitrator.” In other words, once the parties have chosen
mediation the parties may continue to arbitration only when the mediator abstains
from entering a mediation decision because the mediator had reasonable doubt the
evidence drove a particular decision.
Here, the parties clearly selected a mediator and voluntarily chose to proceed
to mediation. After the mediation, pursuant to the CBA, the mediator did not
abstain on account of reasonable doubt as to the evidence. Rather, the mediator
made and issued a decision regarding the underlying grievance. The decision is
specific, detailed, and clearly intended to cover the underlying dispute.
3
The oral statement made by the Union representative just before mediation
began, that the Union wanted the mediation to be non-binding, is rejected as it
conflicts with the unambiguous written terms of the CBA. There is no mention or
indication of a procedure in which nonbinding mediation can be utilized, nor is
there an option for one party unilaterally to render a binding mediation nonbinding;
rather, the plain language of the CBA is clear that mediation is binding. Under the
parol evidence rule, extrinsic evidence offered to vary or contradict the provision's
clear meaning may not be considered by the court. See Int’l Bhd. of Teamsters,
Local No. 839 v. Morrison-Knudsen Co., 270 F.2d 530, 536 (9th Cir. 1959) (parol
evidence may not be used to vary the unambiguous terms of a written contract);
see also NLRB v. Int’l Bhd. of Elec. Workers, Local 11, 772 F.2d 571, 575 (9th Cir.
1985) (where contractual provisions are unambiguous, extrinsic evidence need not
be considered, and parol evidence is therefore not only unnecessary but irrelevant).
Pursuant to the CBA, the parties voluntarily selected the option to mediate
the dispute, the mediator issued a decision, and the decision by the mediator is
binding. The dispute was thus resolved, and no grievance remains that would be
subject to arbitration. The district court did not err in concluding that the CBA does
not require arbitration of the grievance because the mediator issued a decision that
is final and binding on the parties.
AFFIRMED.
4
FILED
JAN 26 2018
Unite Here Local 30 v. Volume Services, Inc., No. 16-55528
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CALLAHAN, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that it was proper for the district court to determine
whether the parties’ mediation precluded arbitration of the grievance. However, I
would vacate the district court’s decision and remand for further proceedings
because the CBA is reasonably susceptible to the interpretation offered by the
Union. Although the CBA defines a mediation procedure that results in a binding
decision by the mediator, the provision does not preclude the parties from
informally resolving the grievance through a negotiated settlement or from
engaging a neutral to help facilitate such a settlement (i.e., “mediation” as it is
traditionally understood). Section 25(d) of the CBA states that the mediation
procedure described therein “shall be used on a case by case basis if mutually
agreed to by the Employer and the Union.” The statement by the Union
representative at the outset of the parties’ mediation that the Union was not
agreeing to binding mediation raises a fact question as to whether the parties in fact
“mutually agreed” to the mediation procedure described in Section 25(d).
I respectfully dissent.