Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. CV061021 of San Luis Obispo, Charles S. Crandall, Judge
William A. Sokol, Bruce A. Harland; Weinberg, Roger & Rosenfeld, for Appellant.
Stephen C. Key. Richard J. Kern; Parker, Kern, Nard & Wenzel, for Respondent.
YEGAN, Acting P. J.
Graphic Communications Union District Council No. 2, Local 388M, AFL-CIO ("Union" or "petitioner") appeals from the trial court's order denying its motion to compel arbitration of a grievance against respondent Ennis Business Forms, Inc. The trial court concluded the dispute was not subject to arbitration because it arose under the prior collective bargaining agreement (CBA) and the current CBA expressly excludes such disputes from the scope of its arbitration clause. The Union contends the trial court erred because the arbitration clause can be read to apply to this dispute. We affirm.
Facts
Section 19.1 of the prior CBA obligated respondent "to pay full cost for the HMO Plan." While that agreement was in effect, the HMO provider ceased operations. Respondent replaced the HMO with its own "Ennis Silver Plan." In October 2002, the Union filed a grievance contending that, "The new health plan does not meet the company's obligation under section 19.1 of the contract." Respondent denied the grievance. The parties agreed to arbitrate the matter and scheduled the arbitration hearing for March 16, 2004. Before the hearing, however, the parties settled their dispute. Respondent agreed to "consider and make reimbursement to current employees . . . who experienced co-pays and deductibles in excess of what would have been experienced under the [prior] HMO."
The prior CBA expired on May 25, 2004. By June 24, 2004, the parties had negotiated the current CBA which has an effective date of May 26, 2004. Section 7.2 of the current CBA defines a grievance as, "any dispute or issue raised by a claim on the part of an employee or the Union that the Company is in some respect violating any provisions of the Agreement." A grievance that is not resolved informally is to be submitted to a neutral arbitrator. The CBA further provides: "The following classes of grievances are not arbitrable and shall not be submitted to an arbitrator and no arbitrator shall have any authority with respect to them: [¶] a. Any grievance arising prior to the execution of this Agreement or any grievance presented (to the foreman) after the expiration of this Agreement." Section 19 of the current CBA obligates respondent to provide a medical plan and specifies the co-pay and premiums charged to employees and their family members.
In August 2006, the Union filed a grievance in which it claimed respondent, "has violated and continues to violate the collective bargaining agreement and an application and interpretation of the collective bargaining agreement insofar as it has in the past and continues to the present to fail and refuse to reimburse employees for HMO co-payments of premiums, in violation of section 19 of the collective bargaining agreement between the parties, and in violation of the application and interpretation of the agreement as set forth in a letter dated March 12, 2004." Respondent denied the grievance on the ground that it had already been settled. The Union filed this petition to compel arbitration.
Discussion
Federal law governs the question of whether a dispute between a labor union and an employer is subject to arbitration under the terms of a collective bargaining agreement. This is a matter on which we exercise concurrent jurisdiction with the federal courts. (Charles Dowd Box Co. v. Courtney (1962) 368 U.S. 502, 82 S.Ct. 519; O'Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 486.) Under federal law, arbitrability is "undeniably an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator." (AT&T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 649 [89 L.Ed.2d 648, 656].) In making that determination, we may not consider the merits of the dispute and must resolve all doubts in favor of arbitration. (Id. at p. 650.) Disputes are presumed to be subject to arbitration, " 'unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' " (Id. quoting Steelworkers v. Warrior & Gulf Navigation Co. (1960) 363 U.S. 574, 582-583 [4 L.Ed.2d 1409].)
Here, the Union contends the trial court improperly resolved the merits of its grievance when the court found the grievance was not subject to arbitration under the CBA. There was no error. The CBA expressly provides, "The following classes of grievances are not arbitrable and shall not be submitted to an arbitrator and no arbitrator shall have any authority with respect to them: [¶] a. Any grievance arising prior to the execution of this Agreement . . . ." The grievance at issue falls under this paragraph because it relates to respondent's failure to reimburse employees for HMO co-payments they made before the execution of the current CBA. The grievance is therefore excluded from arbitration.
This conclusion is compelled not by an assessment of the merits of the grievance, but by the terms of the grievance itself. The Union's grievance states that respondent "has violated" the CBA because respondent "has in the past, and continues to the present to fail and refuse to reimburse employees for HMO co-payments of premiums, in violation of Section 19 of the [CBA] . . ., and in violation of the application and interpretation of the agreement as set forth in a letter dated March 12, 2004." The current CBA is effective as of May 26, 2004. The grievance had to have arisen before March 12, 2004. Accordingly, it arose before the execution of the current CBA and is not subject to arbitration under section 7.4.
The parties have each raised a number of procedural issues. As we have resolved the appeal on the merits, it is unnecessary for us to reach these claims.
The order denying the petition to compel arbitration is affirmed. Costs to respondent.
We concur: COFFEE, J., PERREN, J.