United States District Court, S.D. California
ORDER GRANTING PETITION TO COMPEL ARBITRATION AND
DENYING PETITIONER'S REQUEST FOR ATTORNEYS' FEES
[DOC. NOS. 1, 11, 13]
Michael M. Anello United States District Judge.
3, 2019, Unite Here Local 30 (“Petitioner”) filed
a petition to compel arbitration (“Petition”)
against Omni Hotels Management Corporation d/b/a Omni La
Costa Resort & Spa (“Respondent”). Doc. No.
Respondent moves to dismiss the Petition, arguing there is no
basis to compel arbitration under the parties' collective
bargaining agreement (“Agreement”) and,
alternatively, Petitioner fails to state a plausible claim
for violation of the Agreement. Doc. No. 11 at 8, 10.
Petitioner responded in opposition to the motion, and
Respondent replied. Doc. Nos. 12, 21. Additionally,
Petitioner moves for summary judgment and attorneys'
fees. Doc. No. 13. Respondent opposed the motion, and
Petitioner replied. Doc. Nos. 20, 22. The Court found the
matters suitable for determination on the papers and without
oral argument pursuant to Federal Rule of Civil Procedure
78(b) and Civil Local Rule 7.1.d.1. Doc. No. 23. As explained
in further detail in footnote 5, infra, the Court
disposes of the Petition, the motion to dismiss, and the
motion for summary judgment in a single order. For the
reasons set forth below, the Court GRANTS
Petitioner's Petition to compel arbitration and
DENIES Petitioner's motion for
is a labor organization as defined in the Labor-Management
Relations Act (LMRA) and has its principal place of business
in California. Petition ¶ 2; see also 29 U.S.C.
§ 152(5) (defining “labor organization”).
Respondent is incorporated and has its principal place of
business in California. Petition ¶ 2. Petitioner
represents various employees of Respondent as their
“sole bargaining agent.” Agreement § 1(a).
and Respondent signed the Agreement on May 14, 2018, but the
Agreement became effective from January 1, 2017, through
December 31, 2019.Petition ¶ 6; Agreement p. 1.
Petitioner alleges the Agreement requires Respondent to
arbitrate all claims. Petition ¶ 9. The Agreement
provides a “grievance procedure” if a conflict
arises between the parties. See Agreement § 27.
As a preliminary matter, the Agreement states
“[e]mployees are encouraged to first bring any
type of dispute, disagreement, or concern to the
employee's supervisor or manager, or the Employer's
Human Resources Department, regardless of whether the
employee believes this Agreement to have been
violated.” Id. at § 27(a) (emphasis
added). Under the Agreement, “grievance is
defined as a dispute between the parties as to the
interpretation or application of any provision(s) of
this Agreement that arises after this Agreement is signed and
before it terminates.” Id. at § 27(b)
(emphasis added). When a grievance arises, both parties are
obligated to share relevant information pertaining to the
grievance. Id. at § 27(c). Failure to do so
bars the evidence's use at mediation or arbitration.
Id. The grievance procedure requires the following:
(d) All grievances must be submitted to the Employer's
Human Resources Director or his or her designee within
fourteen (14) calendar days of the employee or Union having
known, or should have known, of the occurrence. The Employer
has fourteen (14) calendar days in which to respond to said
grievance in writing. The parties may schedule a grievance
hearing at any mutually acceptable time after the Union files
the grievance and prior to the Union's deadline for
moving the grievance to the next step. Regardless, if a
settlement of this grievance is not reached at the grievance
hearing or following the Employer's response, the Union
has fourteen (14) calendar days from receipt of the Employer
response to request mediation or file a Notice of Intent to
Arbitrate. Failure of the Union to request mediation or
to present a Notice of Intent to Arbitrate within fourteen
(14) days of receipt of the Employer response shall disallow
any further action on the grievance unless the time period is
waived by the Union and the Employer in writing.
(e) In the event the matter cannot be amicably adjusted, if
agreed to by the Union and the Employer, it may be submitted
to mediation before an unpaid representative designated by
Federal Mediation and Conciliation Services
(“FMCS”). A mediation shall convene within
fourteen (14) days after receipt of notice given in writing
by either party to the FMCS that mediation is necessary.
Prior to the mediation the parties shall designate whether
the mediator's opinion is to be final and binding. In the
event there is no agreement between the parties regarding the
binding or non-binding nature of the mediator's opinion,
either party may proceed to subsection 27(f) below or the
parties may nevertheless by mutual agreement continue with
the procedures set forth in this paragraph (e). The mediator
shall provide an oral opinion upon completion of the
In the event that the parties have not designated the
mediator's opinion as final and binding, or the parties
do not agree to the mediation process either party may submit
the issue in dispute to an impartial arbitrator by filing a
Notice of Intent to Arbitrate with the FMCS. If the aggrieved
party fails to notify the other of its intent to pursue said
grievance to arbitration within fourteen (14) calendar days
after the mediation, or within fourteen (14) days after the
request for mediation is refused the grievance shall be
(f) If arbitration is resorted to, the arbitrator
shall be selected by requesting a list of seven (7)
arbitrators from the FMCS, all of whom shall be located in
California or Nevada and members of the National Academy of
Arbitrators. The parties shall alternate striking names from
the list, with the Union making the first strike. The
decision of the arbitrator shall be final and binding upon
both parties. Any expenses of the arbitrator shall be borne
equally by both parties. During the period that any matter is
before mediation or is in the course of arbitration, as the
case may be, there shall be no stoppage of work or other
economic action taken by one party against the other.
(g) The arbitrator or mediator shall only have the
authority to grant awards for grievances and shall have no
authority to add to, alter, delete, modify or change the
terms or provisions of this Agreement. The decision of
the arbitrator shall be final and binding upon the parties.
Id. § 27(d)-(g) (emphasis added).
addition to Section 27, the Agreement provides additional
arbitration language in the section titled “401(k) and
pension plans.” Id. § 29. The pertinent
subsection states the following:
(b) Within six-months of ratification of this Agreement,
the parties shall meet to establish a new variable rate
multiemployer pension plan based on the following guiding
• Recognizing that pension plans have an inherent risk
of unfunded liability, the plan shall be established and
operated in a manner that seeks to avoid such Employer
• The Employer shall contribute to the pension plan in
the same amounts as set forth in subsection 29(a) for all
employees hired after ratification.
• Each employee hired prior to ratification shall be
given a choice whether to participate in the pension plan or
to continue in the Labor Union 40l(k) Plan. Such choice shall
be made (i) within thirty (30) days of ratification, or (ii)
within thirty (30) days of the pension plan being
established, provided that if an employee chooses to
participate in the pension plan, he/she may not choose to
return to receiving Employer contributions to the 401 (k).
• The Union shall have twenty-four (24) months to obtain
agreement from another employer to join the new pension plan.
If no other employer agrees to participate, the parties shall
re-open this section of the Agreement and bargain a different
• Until the new pension plan is established, the
Employer's pension plan contributions (which shall be the
same amounts as set forth in subsection 29(a)) shall be
placed in an escrow account, with ...