act. The Supreme Court expressed concern that if the plaintiff were forced to arbitrate, the union's duty to maximize the overall compensation of its members might even permit them to "sacrifice" the plaintiff's statutory rights. Id.
While the Austin majority concluded that the "only difference" between the Gardner-Denver line of cases and Gilmer was that Gardner-Denver arose in the context of a collective bargaining agreement, they failed to realize that "the only difference makes all the difference." Austin, 78 F.3d at 886 (Hall, C.J., dissenting). Although employees subject to individual arbitration agreements are barred from filing statutory claims in court, they still have a viable opportunity for redress. They can pursue their claim through an arbitration process that affords them the right to counsel, rights of discovery, and challenges to the arbitration panel. Union employees compelled to arbitrate would not have the same access to redress. Their claims would be controlled by union representatives who are held to a deferential standard of conduct. Without violating its duty, the union could compromise or even drop the grievance, leaving the employee without a remedy for the statutory violations.
The Court disagrees with the argument that waiving the right to judicial resolution of statutory claims is no different than waiving the right to strike or the right to file claims for contract-based grievances. The constitutional rights protected by the ADEA and ADA may not be negotiated so as to leave victims of discrimination without a viable remedy. The fact that the FAA applies in this case does not, on its own, warrant barring Plaintiff's statutory claims. The FAA's liberal view of arbitration does not supersede union employees' rights to an adequate remedy for employment discrimination. The Court holds that statutory rights, unlike contract-based rights, are not waived under collective bargaining agreements, and that a union employee may not be compelled to arbitrate statutory employment claims. The CBA between Plaintiff's union and NASSCO implicates contractual rights only. The Plaintiff is under no obligation to arbitrate his ADEA and ADA claims, and the Defendants' motion to dismiss is therefore denied with respect to these two claims.
3. Plaintiff's FEHA Claim is not Barred by the CBA
Defendants argue that California law bars Araiza's FEHA claim and mandates arbitration in accordance with the CBA. Defendants cite Johnson v. Hydraulic Research & Mfg. Co., 70 Cal. App. 3d 675, 139 Cal. Rptr. 136 (1977), but that case is not probative of the issue before this Court. The dispute in Johnson concerned the interpretation and application of specific clauses of the collective bargaining agreement. Id. at 680. The Court agrees with the holding in Johnson that employees subject to mandatory arbitration provisions of collective agreements must arbitrate contract-based claims.
The actual question before this Court, to wit, whether state statutory claims are barred by collective agreement arbitration provisions, has not been expressly decided by California courts. In Spellman v. Securities, Annuities & Ins. Services, Inc., 8 Cal. App. 4th 452, 461 (1992), the California Supreme Court seemingly endorsed the view that statutory claims are not waived under collective bargaining agreements. The plaintiff, Calvin Spellman, worked as an account executive for the defendant. Spellman signed an employment contract which required that all disputes be arbitrated. The Court held that Spellman's claim for racial discrimination was arbitrable, but it distinguished Gardner-Denver. The Court found that a "collective representative may not always represent the interests of an individual employee with a statutory claim. Under a CBA, labor arbitrators are not authorized to resolve individual statutory claims." Id. at 461. These statements, however, are only dictum.
Neither the Ninth Circuit nor the federal district courts of California provide the Court with much guidance. In fact, few courts have even addressed this issue. The more common attack on non-arbitrated state statutory claims is preemption under LMRA § 301 or preclusion under the workers' compensation act of California. Those courts who have decided this issue are split. In Williams v. Raley's Superstores, Inc., 1995 U.S. Dist. LEXIS 322, No. 94-3867, 1995 WL 20462 (N.D. Cal. Jan. 13, 1995), the court stated that "a claim arising out of the California Employment Act is also a separate claim that is independent of a CBA's arbitration process and entitled to full judicial resolution." Id. at *4. Conversely, the court in Tomasetti v. Prudential Ins. Co. of Amer., 1996 U.S. Dist. LEXIS 21742, No. 96-5169, 1996 WL 604752 (E.D. Cal. July 2, 1996) held that the plaintiff's "state statutory claims which arise out of his termination are subject to arbitration." Id. at *5.
The Court holds that Plaintiff's FEHA claim, like his federal statutory claims, is not barred by the mandatory arbitration provisions of his union's CBA. The rights protected by FEHA deserve the same protection that the Court has afforded the ADEA and the ADA, and the Court finds no reason to apply a different rule to state statutory claims than governs federal claims. Moreover, the commentary in Spellman indicates that if directly confronted with the issue, the California Supreme Court would likely find that Gardner-Denver continues to govern in the context of collective bargaining agreements. Plaintiff is not required to arbitrate his FEHA claim, and Defendants' motion to dismiss Plaintiff's FEHA claim is also denied.
D. Plaintiff's FEHA Claim is not Preempted Under LMRA § 301(a)
Section 301(a) of the LMRA provides federal jurisdiction over "suits for violation of contracts between an employer and a labor organization." 29 U.S.C. § 185(a). "A suit for breach of a collective-bargaining agreement is governed exclusively by federal law under section 301." Perugini v. Safeway Stores, Inc., 935 F.2d 1083, 1087 (9th Cir. 1991). Even suits based in tort are preempted if they require interpretation of a labor contract. See id., 935 F.2d at 1088 (finding preempted intentional infliction of emotional distress claim insofar as it was based on interpreting employer's duty under labor contract).
If resolution of a state-law claim depends on interpretation of the collective agreement, "the application of state law . . . is pre-empted and federal labor-law principles . . . must be employed to resolve the dispute." Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 406, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1987). In Lingle, the Court stated that "the state-law analysis might well involve attention to the same factual considerations as the contractual determination of whether Lingle was fired for just cause. But we disagree with the court's conclusion that such parallelism renders the state-law analysis dependent upon the contractual analysis." Id. at 408.
In other words, state claims are not preempted merely because they would address the same set of facts as would be addressed in the arbitration of contractual claims. Thus, the Ninth Circuit held that a plaintiff's FEHA disability discrimination claim was not preempted, even though the collective bargaining agreement contained a general nondiscrimination clause which prohibited discrimination on the basis of handicap. Ackerman v. Western Elec. Co., 860 F.2d 1514 (9th Cir. 1988). The court noted that FEHA confers upon employees rights independent of their collective agreements. It made no difference that the plaintiff had separate remedies for the same set of facts under the agreement's nondiscrimination clause. Id. at 1517.
In Miller v. AT & T Network Sys., 850 F.2d 543 (9th Cir. 1988), the Ninth Circuit established a three-part test for courts considering preemption arguments.
In deciding whether a state law [claim] is preempted under Section 301,  a court must consider: (1) whether the CBA contains provisions that govern the actions giving rise to a state claim, and if so, (2) whether the state has articulated a standard sufficiently clear that the state claim can be evaluated without considering the overlapping provisions of the CBA, and (3) whether the state has shown an intent not to allow its prohibition to be altered or removed by private contract. A state law [claim] will be preempted only if the answer to the first question is "yes," and the answer to either the second or third is "no."
Miller, 850 F.2d at 548. The Ninth Circuit decided that FEHA is supported by "clear statutory and regulatory standards [that] provide a means to determine 'reasonable accommodation.'" Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1527 (9th Cir. 1995). The Jimeno court also held that through its public policy against discrimination, California has evinced an intent not to allow the prohibitions of FEHA to be altered by private contract. Id. at 1528. By answering "yes" to both the second and third prong of the Miller test, Jimeno appears to compel the conclusion that FEHA claims are never preempted by Section 301, even when the state law claim requires interpretation of the CBA. This Court, however, is unwilling to undercut Defendants' preemption claim by applying Jimeno and Miller in this manner. Doing so would violate the Lingle rule that state law claims dependent on interpretation of a labor contract are preempted.
Nevertheless, Defendants fail to even argue how Plaintiff's FEHA claim will require interpretation of the CBA. Article 17, Section 3(E) of the CBA governs the termination and reinstatement of disabled employees. It is not apparent whether Plaintiff's disability discrimination claim will require interpretation of this section. Defendants fail to even assert that it will. Defendants may have intended to argue that Plaintiff's FEHA claims are preempted by the nondiscrimination clause of the CBA, but that claim would fail. Ackerman clearly holds that FEHA claims are not preempted solely because they coincide with potential contract-based claims. Defendants' preemption claim is thus unsubstantiated and their motion to dismiss on this basis is denied.
For the reasons stated above, Defendants' motion to dismiss for lack of subject matter jurisdiction is DENIED in its entirety.
IT IS SO ORDERED.
Dated: JUL 23 1997
RUDI M. BREWSTER
UNITED STATES DISTRICT JUDGE