Frank Miles v. Brusco Tug & Barge, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2023
• Docket: 22-15588
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 24 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

FRANK MILES, No. 22-15588

Plaintiff-Appellee, D.C. No. 2:18-CV-02860-TLN-AC

v. MEMORANDUM BRUSCO TUG & BARGE, INC., ET AL.,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Argued and Submitted February 14, 2023 San Francisco, California Before: MILLER, SANCHEZ, and MENDOZA, JR., Circuit Judges.

Brusco Tug & Barge, Inc. (“Brusco”) appeals the denial of its motion to

compel arbitration of Plaintiff Frank Miles’s statutory wage-and-hour,

meal-and-rest break, and unfair competition claims. Reviewing the district court’s

denial of Brusco’s motion to compel arbitration de novo, Knutson v. Sirius XM

Radio Inc., 771 F.3d 559, 564 (9th Cir. 2014), we affirm on different grounds, see

S. Cal. Painters & Allied Trades, Dist. Council No. 36 v. Rodin & Co., Inc., 558

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 F.3d 1028, 1034 n.5 (9th Cir. 2009) (explaining that this Court “may affirm on any

ground supported by the record, even if it differs from the district court’s rationale”

(citation omitted)).

1. Miles was a deck engineer for Brusco from approximately 2010 to

2017, responsible for all machinery, appurtenances and maintenance of a marine

vessel. During his employment, he was a union member with the International

Organization of Masters, Mates, and Pilots, Pacific Maritime Region (the

“Union”). Brusco and the Union entered into a series of collective bargaining

agreements (“CBA”). The CBA outlines a multi-step dispute resolution procedure

which provides for arbitration of unresolved disputes between the Union and

Brusco.

2. The parties disagree whether a valid arbitration agreement exists

between Miles and Brusco. Assuming one exists, the scope of the CBA’s

arbitration agreement does not encompass the statutory wage claims at issue here.

For an arbitration agreement to cover statutory claims, the agreement must evince a

clear and unmistakable waiver of a judicial forum. See Wright v. Universal Mar.

Serv. Corp., 525 U.S. 70, 79–80 (1998) (holding that a general arbitration clause in

a collective bargaining agreement does not require an employee to arbitrate his

statutory discrimination claim); Hoover v. Am. Income Life Ins. Co., 206 Cal. App.

4th 1193, 1208 (2012) (applying Wright’s “clear and unmistakable waiver of a

2 judicial forum” standard to collective bargaining disputes premised on statutory

wage violations under California law). 1

“In determining whether there has been a sufficiently explicit waiver of a

judicial forum, courts look to the generality of the arbitration clause; the explicit

incorporation of statutory requirements; and inclusion of specific statutes,

identified by name or citation.” Hoover, 206 Cal. App. 4th at 1208. A dispute

resolution provision’s “broad, general, unspecific arbitration clauses” requiring

arbitration of “all disputes, controversies or disagreements arising out of the

interpretation of this Agreement” are insufficient to constitute clear and

unmistakable waiver of a judicial forum. Vasquez v. Superior Ct., 80 Cal. App. 4th

430, 435 n.4 (2000); see also Wilson-Davis v. SSP Am., Inc., 62 Cal. App. 5th

1080, 1096 (2021) (“Although there plainly is overlap between the subjects

covered by the Labor Code and the collective bargaining agreement, none of the

portions of the collective bargaining agreement . . . specifically incorporates any of

the statutory provisions on which plaintiff’s causes of action are based.”)

1 The parties assumed without discussion that the Federal Arbitration Act governs the arbitration clause here, but section 1 of the FAA expressly exempts “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. As a deck engineer employed aboard a vessel, Miles’s contract appears to be exempt from the FAA. See Sw. Airlines Co. v. Saxon, 596 U.S. 450, 453 (2022). We need not resolve which substantive law applies because both federal and California law apply the same “clear and unmistakable waiver” standard.

3 Miles only alleges statutory claims premised on violations of the California

Labor Code and California Business & Professions Code. As Brusco

acknowledges, the CBA does not mention, let alone explicitly incorporate, any

such statutory requirements. In the absence of a clear and unmistakable waiver of

a judicial forum for Miles’s statutory claims, there was no valid arbitration

agreement between Miles and Brusco covering these claims.2

AFFIRMED.

2 In light of our determination, we do not reach the arguments raised by the parties concerning waiver, forfeiture, or unconscionability.