Handlery Hotels v. Meza

Filed 9/6/07 Handlery Hotels v. Meza CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed.

Ramon V. Meza appeals the granting of a petition to confirm an arbitration award. He contends a declaration was erroneously admitted, the action was preempted by section 301 of the Labor Management Relations Act (29 U.S.C.  185), and the petition should not have been confirmed because Meza was not a party to an arbitration agreement and he was not represented by counsel during the arbitration. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Meza worked in a restaurant of Handlery Hotel (Handlery) in San Diego and was a member of the Hotel Employees and Restaurant Employees Union of San Diego, Local No. 30 (the Union). Handlery and the Union had a collective bargaining agreement that provided employee grievances are to be written, presented by the employee to Handlery and submitted to arbitration if the parties could not resolve the matter.

In May 2003, Meza was terminated for misconduct. The Union filed a grievance on Meza's behalf.

While Meza's grievance was pending, he filed a claim for unemployment insurance benefits. The benefits were initially denied on the basis he had been terminated for misconduct, but the disqualification was overturned in September 2003. Meza also filed an action for defamation against Handlery and others.

Eventually, the Union pursued arbitration on the issue of whether Meza was terminated for good cause. Meza was represented by a Union official. Arbitration proceedings occurred on October 11, 2004, January 18, 2005, January 19, 2005, and February 3, 2005.

In March 2005, the arbitrator issued his decision, concluding Handlery had acted reasonably in relying on an investigator's report and in terminating Meza's employment.

After unsuccessfully seeking in the defamation action to have the court confirm the arbitration award, Handlery filed a petition in this case in August 2005. The trial court confirmed the arbitration award and entered judgment on December 30, 2005.

DISCUSSION

I

Admission of Declaration

Meza contends the court should have excluded the July 15, 2005 declaration of Douglas Cornford, a labor consultant. Cornford represented Handlery during the arbitration of Meza's grievance. He attached to his declaration a copy of the collective bargaining agreement, which provided for Handlery's right to conduct investigations about its employees and to terminate for good cause. Handlery originally filed the declaration in Meza's defamation action. Handlery filed the same declaration in this case, changing only the caption to reflect it was being filed in a different case.

Meza argues Cornford's declaration was inadmissible, asserting that Handlery was required to obtain a new declaration, not merely to change the caption. Meza argues the filing of the declaration in a subsequent lawsuit somehow changes it into an unsworn declaration.

To support his argument, Meza points to requirements that declarations must include an oath or certification under penalty of perjury of the laws of the State of California (Code of Civ. Proc.,  2015.5, 2015.6) and cites to a case stating the importance of an oath to the trustworthiness of evidence (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 608).[1] We do not disagree with these basic propositions. However, it does not follow that a declaration, which was signed under penalty of perjury but was originally filed in another case, is inadmissible in a subsequent case. Meza cites no authority for this proposition, but merely asserts it would be improper to use "information included in an original declaration from another case" in a subsequent case because "there is no assurance the declarant still believes the information to be true" and there would be a perversion of "the whole reason behind requiring an oath or certification in the first place."

Essentially, Meza is postulating a shelf-life for all sworn declarations, affidavits and testimony. Under his theory, the validity of oaths or certifications would dissipate over time simply because they had been once used in another case and it was possible the declarant might no longer believe the information to be true. He has not cited any authority to support his position. Furthermore, it conflicts with the hearsay exception for former testimony, which allows past testimony to be used on the basis of the trustworthiness of statements made under oath. (See, e.g., Evid. Code,  1290 [hearsay exception for former testimony]; 1 Witkin, California Evidence (4th ed. 2000) Hearsay,  255, p. 973 [former testimony viewed as highly reliable evidence].)

Finally, there is no basis for concluding the facts stated in Cornford's declaration are not valid simply because they were made in the context of a different case and made before this case was filed. Cornford's statements relate to past events, not to a changing

situation.

We conclude neither the filing of the declaration in a prior case nor the mere passage of time render an oath or certification invalid. In sum, the court properly rejected Meza's argument the declaration should be excluded.

II

Preemption by the Labor Management Relations Act

Meza contends this action is preempted by section 301 of the Labor Management Relations Act. There is no merit to this contention.

Relevant Legal Principles

Section 301 of the Labor Management Relations Act provides for the enforcement of collective bargaining agreements in federal court and preempts a state law claim if its resolution is substantially dependent on analysis of a collective bargaining agreement. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 639; Moreau v. San Diego Transit Corp. (1989) 210 Cal.App.3d 615, 622.) If a collective bargaining agreement provides for binding arbitration of disputes, a lawsuit under section 301 of the Labor Management Relations Act may not be pursued. (Local 901 Teamsters v. Weissberg Hotel Corp. (1967) 284 F.Supp. 673, 675 [The Supreme Court has enunciated a rule "that when the parties provide for arbitration in their Collective Bargaining Agreement this means of settlement is exclusive and resort cannot be had to the courts"]; Myers v. AK Steel Corp. (3rd Cir. 2005) 156 Fed.Appx. 528, 530 ["An employee alleging breach of the collective bargaining agreement between his or her employer and the union must exhaust contractually-mandated grievance and arbitration procedures before he or she is permitted to file suit under 301"].) This reflects "an explicit policy preference for the private settlement of labor disputes . . . ." (Int'l Bhd. of Teamsters, Local 519 v. UPS (6th Cir. 2003) 335 F.3d 497, 506; 29 U.S.C.  173, subdivision (d) ["Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement"].)

When a labor dispute is submitted to arbitration under the terms of a collective bargaining agreement, the construction and interpretation of the agreement is a matter for the arbitrator, not the judiciary. (Greenfield v. Mosley (1988) 201 Cal.App.3d 735, 743.) "It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." (United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960) 363 U.S. 593, 599.)

The limited review of an arbitration involving a collective bargaining agreement has been explained by the United States Supreme Court:

"Judicial review of a labor-arbitration decision pursuant to such an agreement is very limited. Courts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. [Citation.] We recently reiterated that if an ' "arbitrator is even arguably construing or applying the contract and acting within the scope of his authority," the fact that "a court is convinced he committed serious error does not suffice to overturn his decision." ' [Citation.] It is only when the arbitrator strays from interpretation and application of the agreement and effectively 'dispenses his own brand of industrial justice' that his decision may be unenforceable. [Citation.] When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's 'improvident, even silly, factfinding' does not provide a basis for a reviewing court to refuse to enforce the award." (Major League Baseball Players Ass'n v. Garvey (201) 532 U.S. 504, 509.)

"[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." (United Paperworkers Int'l Union v. Misco (1987) 484 U.S. 29, 38.) " 'A court must affirm an arbitrator's award if it can in any rational way be derived from the agreement, and can only reverse if there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop.' " (Social Services Union v. Alameda County Training & Employment Bd. (1989) 207 Cal.App.3d 1458, 1463.)

Similarly, California courts recognize " '[t]he role of a court in reviewing the validity of an arbitration award under a collective bargaining agreement is an extremely narrow one. Findings on questions of law or fact by the arbitrator are final and conclusive. Neither the merits of the controversy nor the sufficiency of the evidence to support the arbitrator's award are matters for judicial review.' " (Social Services Union v. Alameda County Training & Employment Bd., supra, 207 Cal.App.3d 1458, 1463-1464; see also Safeway Stores, Inc. v. Brotherhood of Teamsters (1978) 83 Cal.App.3d 430, 437.)

By statute in California, there are only limited grounds for vacating an arbitration award. Those grounds are: (1) the award was procured by corruption, fraud or other undue means; (2) there was corruption by the arbitrator; (3) the rights of the party were substantially prejudiced by the misconduct of a neutral arbitrator; (4) the arbitrator exceeded his or her powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; or (5) the rights of the party were substantially prejudiced by the arbitrator's refusal to continue the hearing when a sufficient showing is made or by the arbitrator's refusal to hear evidence material to the controversy or by other conduct of the arbitrator. (Code Civ. Proc.,  1286.2.)

Analysis

Meza argues "preemption is required because [Handlery] sought below to enforce an agreement between itself and the Union, not an agreement between [Handlery] and . . . Meza individually" and is seeking to obtain the benefits of the collective bargaining agreement. Thus, Meza concludes, this case cannot be resolved without resorting to interpretation of the terms of the collective bargaining agreement.[2]

Meza's argument fails because his premise is flawed. This case does not involve enforcement of a collective bargaining agreement. It involves the narrow question of whether an arbitration award should be affirmed. To the extent any preemption argument might exist, that is, that federal law should be applied to the interpretation of the collective bargaining agreement that was an issue to be raised during the arbitration proceedings. Meza's preemption argument is not a valid basis for challenging an arbitrator's award.

III

Claim that Meza Was Not a Party to the Arbitration

Meza asserts he should not be bound by the arbitration because he was not a party to it. He points to the fact that he was not a signatory to the collective bargaining agreement containing the arbitration provision and asserts the Union initiated the arbitration.

We find Meza's reliance on Southern Cal. Pipe Trades Dist. Council No. 16 v. Merritt (1981) 126 Cal.App.3d 530 is misplaced. His case is not "strikingly similar" to Merritt. In Merritt, the issue was whether a person who had signed a collective bargaining agreement with a union only in his capacity as a corporate officer could be held individually liable when he had no notice of the potential for individual liability and did not appear at the hearings. The court held he could not be held individually liable. Here, the whole purpose of the arbitration was to address Meza's individual claim that he was improperly terminated and, had he prevailed, he would have personally benefited.

Finally, we note Meza is contending he was not a party to the arbitration because of Handlery's expressed intent to use the arbitration award for collateral estoppel purposes in the defamation action. In other words, Meza wants us to determine the collateral estoppel effect of the arbitration award in this action. This action, however, is limited in scope to whether the arbitration award should be confirmed. We decline to address the collateral estoppel issue in this case.

IV

Denial of Right to Attorney

Meza contends the court erred in confirming the arbitration award because he was denied his right to be represented by counsel. Meza was represented by a union official during the arbitration. At some unspecified point during the arbitration, Meza's attorney asked the union official representing Meza if he could attend the arbitration proceedings on Meza's behalf. That request was declined.

Meza relies on Code of Civil Procedure section 1282.4, subdivision (a), which provides: "A party to the arbitration has the right to be represented by an attorney at any proceeding or hearing in arbitration under this title. A waiver of this right may be revoked; but if a party revokes that waiver, the other party is entitled to a reasonable continuance for the purpose of procuring an attorney." Meza, however, ignores section 1282.4, former subdivision (g), now subdivision (h) (Stats. 2006, ch. 357,  1), which authorizes representation "by any person, regardless of whether that person is licensed to practice law in this state" in "an arbitration arising under collective bargaining agreements." Meza was represented by a union official. Both Meza's declaration and the declaration of his attorney merely indicate that Meza's attorney asked the union official if the attorney could "attend" the arbitration hearings on Meza's behalf and nowhere indicate that Meza sought to have his attorney represent him instead of the union official. Nothing in the record on appeal indicates Meza made a request of the arbitrator to be represented by counsel or that such a request, if made, was denied. In other words, Meza has failed to establish that he was denied a right to be represented by an attorney.

DISPOSITION

The judgment is affirmed. Handlery to recover its costs on appeal.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

McDONALD, J.

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[1] Meza also cites Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1026, for the proposition that using a declaration from a prior case was improper. Stockinger, however, deals with entirely different matters involving hearsay statements and a holding that an investigator's declaration that statements made during recorded telephone conversations were made under penalty of perjury does not transform the statements of the third parties into admissible nonhearsay declarations.

[2] Meza also contends his preemption argument applies to the determination of whether he was a party to the arbitration. Not only does his reliance on California, rather than federal, law undermine his argument, but as we explain in part II, it is not a basis for vacating the award in this case.