NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITE HERE LOCAL 30, No. 16-55528

Plaintiff-Appellant, D.C. No. 3:15-cv-01670-MMA-WVG v.

VOLUME SERVICES, INC., DBA MEMORANDUM *

CENTERPLATE, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Argued and Submitted December 4, 2017 Pasadena, California

Before: CALLAHAN and BEA, Circuit Judges, and WHALEY,** District Judge.

Unite Here Local 30 (the “Union”) appeals from the district court’s

dismissal of its action against Volume Services, Inc., d/b/a Centerplate, Inc., under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. the Labor Management Relations Act, seeking to compel arbitration of a grievance

concerning the termination of a union member.

The denial of a motion to compel arbitration is reviewed de novo. Pipe

Trades Council of N. Cal., U.A. Local 159 v. Underground Contractors Ass’n of N.

Cal., 835 F.2d 1275, 1278 (9th Cir. 1987).

1. On a motion to compel arbitration, the courts have the duty to

determine whether the agreement requires the parties to arbitrate a particular

grievance. AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648–

50 (1986) (citing United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

574, 582–83 (1960)). “Although the arbitration clause itself may appear to order

arbitration, other provisions of the contract may clearly and unambiguously negate

or limit the applicability of the arbitration clause.” Pipe Trades Council of N. Cal.,

U.A. Local 159, 835 F.2d at 1278 (citation omitted).

Here, although the Collective Bargaining Agreement (the “CBA”) provides

for arbitration, it does not require arbitration of all disputes, only those disputes

that are not resolved through one of the other dispute resolution processes outlined

in the CBA. The CBA provides the option of either mediation or arbitration to

resolve a dispute between the parties. As such, mediation is not a procedural step

in the grievance process the parties must fulfill in order to continue to arbitration;

rather, it is an alternative process through which the parties may settle the dispute.

2 The court is required to determine whether the arbitration agreement

encompasses the dispute or whether the mediation of the dispute has removed the

grievance from the scope of the arbitration agreement. Thus, it was proper for the

district court to determine whether the parties’ mediation precluded arbitration.

2. While the CBA allows the parties to elect mediation rather than

arbitration on a case by case basis to settle a dispute, the CBA clearly states: “[t]he

Mediator shall render a [] decision” and “[a]ll decisions of the Mediator shall be

binding.” Simply stated, once the parties have elected mediation, the mediation is

binding. Moreover, the CBA states, “[i]n the event that the Federal or State

Mediator has reasonable doubt based upon the evidence heard, he or she shall

abstain from making a decision, and then either party may submit [the] issue in

dispute to an impartial arbitrator.” In other words, once the parties have chosen

mediation the parties may continue to arbitration only when the mediator abstains

from entering a mediation decision because the mediator had reasonable doubt the

evidence drove a particular decision.

Here, the parties clearly selected a mediator and voluntarily chose to proceed

to mediation. After the mediation, pursuant to the CBA, the mediator did not

abstain on account of reasonable doubt as to the evidence. Rather, the mediator

made and issued a decision regarding the underlying grievance. The decision is

specific, detailed, and clearly intended to cover the underlying dispute.

3 The oral statement made by the Union representative just before mediation

began, that the Union wanted the mediation to be non-binding, is rejected as it

conflicts with the unambiguous written terms of the CBA. There is no mention or

indication of a procedure in which nonbinding mediation can be utilized, nor is

there an option for one party unilaterally to render a binding mediation nonbinding;

rather, the plain language of the CBA is clear that mediation is binding. Under the

parol evidence rule, extrinsic evidence offered to vary or contradict the provision's

clear meaning may not be considered by the court. See Int’l Bhd. of Teamsters,

Local No. 839 v. Morrison-Knudsen Co., 270 F.2d 530, 536 (9th Cir. 1959) (parol

evidence may not be used to vary the unambiguous terms of a written contract);

see also NLRB v. Int’l Bhd. of Elec. Workers, Local 11, 772 F.2d 571, 575 (9th Cir.

1985) (where contractual provisions are unambiguous, extrinsic evidence need not

be considered, and parol evidence is therefore not only unnecessary but irrelevant).

Pursuant to the CBA, the parties voluntarily selected the option to mediate

the dispute, the mediator issued a decision, and the decision by the mediator is

binding. The dispute was thus resolved, and no grievance remains that would be

subject to arbitration. The district court did not err in concluding that the CBA does

not require arbitration of the grievance because the mediator issued a decision that

is final and binding on the parties.

AFFIRMED.

4

FILED

JAN 26 2018

Unite Here Local 30 v. Volume Services, Inc., No. 16-55528

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CALLAHAN, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority that it was proper for the district court to determine

whether the parties’ mediation precluded arbitration of the grievance. However, I

would vacate the district court’s decision and remand for further proceedings

because the CBA is reasonably susceptible to the interpretation offered by the

Union. Although the CBA defines a mediation procedure that results in a binding

decision by the mediator, the provision does not preclude the parties from

informally resolving the grievance through a negotiated settlement or from

engaging a neutral to help facilitate such a settlement (i.e., “mediation” as it is

traditionally understood). Section 25(d) of the CBA states that the mediation

procedure described therein “shall be used on a case by case basis if mutually

agreed to by the Employer and the Union.” The statement by the Union

representative at the outset of the parties’ mediation that the Union was not

agreeing to binding mediation raises a fact question as to whether the parties in fact

“mutually agreed” to the mediation procedure described in Section 25(d).

I respectfully dissent.