1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SEIU UNITED HEALTHCARE Case No. 22-cv-03261-JSC

WORKERS-WEST,

8 Plaintiff, ORDER GRANTING MOTION TO 9 COMPEL ARBITRATION v. 10 Re: Dkt. No. 14

SANTA ROSA COMMUNITY HEALTH

11 CENTERS, Defendant. 12 13 14 Petitioner SEIU United Healthcare Workers-West (the Union) filed this petition to compel 15 arbitration against Respondent Santa Rosa Community Health Centers (SRCHC) seeking to 16 compel Respondent to arbitrate a dispute regarding one of its members, Elizabeth Lencioni. There 17 is a parallel civil case pending is this District brought by Ms. Lencioni against the Union and 18 SRCHC. See Lencioni v. SEIU, et al., Case No. 19-cv-07272-JD (N.D. Cal. Nov. 5, 2019). In that 19 action, Ms. Lencioni brings wrongful discharge claims against SRCHC and alleges that the Union 20 breached its duty of representation by failing to timely preserve her right to arbitration. Over two 21 years after Ms. Lencioni filed that action, the Union filed the underlying action and the now 22 pending motion to compel arbitration. (Dkt. No. 14.) Having considered the parties’ briefs and 23 having had the benefit of oral argument on August 31, 2022, the Court GRANTS the motion to 24 compel arbitration. Respondent’s procedural challenges must be presented to the arbitrator, not 25 this Court. 26 BACKGROUND 27 SRCHC and the Union are parties to a collective bargaining agreement (CBA) 1 which contains a grievance procedure for resolving union member disputes. (Dkt. No. 1 at ¶ 5; 2 Dkt. No. 1-1 at Sec. 38.) The grievance process contains four steps. (Dkt. No. 1-1 at 33-35.1) At 3 Step One, once a grievance is filed there is a meeting with the director of human resources or its 4 designee. (Id. at 33.) If the Union is dissatisfied with human resources’ response, the parties can 5 proceed to Step Two which involves filing a grievance with the Adjustment Board. (Id. at 34.) If 6 the Step Two grievance does not resolve the matter, then the parties shall meet with a mediator to 7 attempt a resolution at Step Three. (Id.) If the mediation does not resolve the grievance, then the 8 grieving party has ten days to advise the other party in writing of its intent to submit the 9 “unresolved dispute grievance to arbitration.” (Id. at 34-35.) 10 While Ms. Lencioni was employed at SRCHC, she was a member of the Union and 11 protected by the CBA including its grievance provisions. (Dkt. No. 1 at ¶ 6.) On February 8, 12 2019, the Union filed a Step One grievance asserting that SRCHC terminated Ms. Lencioni’s 13 employment without just cause. (Id. at ¶ 7.) SRCHC denied the grievance and the Union 14 advanced the grievance to Step 2. (Id. at ¶ 8.) The parties met for an Adjustment Board meeting 15 on March 25, 2019 and SRCHC again denied the grievance. (Id. at ¶ 9.) The Union then 16 advanced the grievance to Step Three and the parties attended a mediation on June 3, 2019. (Id. at 17 ¶ 11.) 18 A month later, on July 3, 2019, Union Coordinator Mark Hall sent an email to SRCHC 19 Human Resources Manager Renae Crabtree “requesting to meet with you and Elizabeth 20 Lencioni… to discuss the proposal regarding Elizabeth’s termination.” (Dkt. No. 14-2 at 97.) 21 Five days later, Ms. Crabtree responded stating:

22 I understand you would like to meet and discuss Elizabeth Lencioni’s case however as stated in section 38.4 of the CBA the time to respond 23 expired on July 1st. Attached is the last communication dated 6/21 sent to Michael Velasquez. No response was received as such SRCH 24 considers the grievance closed. 25 (Dkt. No. 14-2 at 99 (there is no attachment).) Mr. Hall and Ms. Crabtree exchanged emails the 26 following day regarding meeting in person. (Id. at 101-103.) Mr. Hall attests that he and Ms. 27 1 Lencioni met with Ms. Crabtree on July 12, but “the parties could not reach a mutually acceptable 2 resolution.” (Dkt. No. 14-2 at ¶ 15.) Mr. Hall indicates that SRCHS “maintained its position that 3 the case was ‘closed.’” (Id. at ¶ 16.) 4 On November 5, 2019, Ms. Lencioni filed a civil action against SRCHC for wrongful 5 termination and breach of contract, and the Union for breach of the duty of representation for 6 failing to timely submit her grievance to arbitration. See Lencioni v. SEIU, et al., Case No. 19-cv- 7 07272-JD (N.D. Cal. Nov. 5, 2019). A month later, on December 5, 2019, Mr. Hall sent Ms. 8 Crabtree a letter demanding that SRCHC arbitrate Ms. Lencioni’s wrongful termination grievance. 9 (Dkt. No. 14-2 at 105.) Mr. Hall’s letter also indicated that it was his understanding that a former 10 representative of the union, Ian Velasquez, “did timely demand arbitration” and that if SRCHC 11 maintains its position that the arbitration demand was untimely, then the parties “must arbitrate the 12 procedural dispute.” (Id.) Jessica Jauregui, SRCHC’s Chief Human Resources Officer responded 13 a week later requesting any documentation that Mr. Velasquez made a timely demand for 14 arbitration and seeking authority for Mr. Hall’s statement that “the parties must arbitrate the 15 procedural dispute.” (Id. at 107.) The Union sent a response letter on January 21, 2020. (Dkt. 16 No. 14-3 at 7.) No response has been received. (Dkt. No. 14-3 at ¶ 5.) 17 Over two years later, on June 3, 2022, the Union filed the underlying petition to compel 18 arbitration. (Dkt. No. 1.) SRCHC filed its answer on July 25 and the following day the Union 19 filed the now pending motion to compel arbitration. (Dkt. Nos. 13, 14.) 20 DISCUSSION 21 Section 301(a) of the Labor Management Relations Act (“LMRA”), provides federal 22 jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization.” 23 29 U.S.C. § 185(a). This jurisdiction includes the power to enforce agreements that require 24 resolution of disputes through arbitration. See Textile Workers Union of Am. v. Lincoln Mills of 25 Ala., 353 U.S. 448, 455 (1957). The district court determines in the first instance whether a 26 collective bargaining agreement “creates a duty for the parties to arbitrate the particular 27 grievance.” AT & T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648-49 (1986). 1 agreement’s substantive provisions must be arbitrated unless it may be said with positive 2 assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted 3 dispute.” Loc. Joint Exec. Bd., Loc. Joint Exec. Bd. v. Mirage Casino-Hotel, Inc., 911 F.3d 588, 4 596 (9th Cir. 2018) (cleaned up). Although the court decides whether the arbitration agreement 5 covers the subject matter of the dispute, questions of procedural arbitrability related to that dispute 6 “are presumptively for the arbitrator.” Id. 7 The Union insists that the sole question before the Court is whether the Union’s grievance 8 is “substantively arbitrable” and if so, then the arbitrator decides both the merits of the dispute and 9 any procedural issues such as whether the Union timely advanced the grievance. (Dkt. No. 14-1 at 10 7.) SRCHC does not dispute that the underlying grievance would have been arbitrable, but insists 11 that the Union waived the right to pursue arbitration by failing to make a timely demand for 12 arbitration. (Dkt. No. 16 at 2.) 13 A. Timeliness of the Petition 14 Generally, “a petition to compel arbitration under Section 301 has a six-month statute of 15 limitations.” SEIU United Healthcare Workers-W. v. Los Robles Reg’l Med. Ctr., 812 F.3d 725, 16 730 (9th Cir. 2015) (internal citation omitted). The statute of limitations begins to run “when it 17 [is] made clear ... to the Union that the Employer would not submit to arbitration.” Teamsters 18 Union Local 315 v. Great Western Chemical Co., 781 F.2d 764, 769 (9th Cir. 1986). An employer 19 “‘make[s] it clear’ that it refuse[s] to arbitrate and ... starts the statute of limitations, [when] an 20 unequivocal, express rejection of the union’s request for arbitration [is] communicated to the 21 union. Constructive notice is not sufficient.” Local Joint Executive Bd. of Las Vegas v. Exber, 22 Inc., 994 F.2d 674, 676 (9th Cir. 1993) (internal citation omitted). 23 The Union spends much of its motion to compel arbitration arguing that the petition— 24 which was filed over two years after the last communication from SRCHC regarding Ms. 25 Lencioni’s grievance—was timely because there was “never an unequivocal, express rejection of 26 the union’s request for arbitration must be communicated to the union.” Exber, 994 F.2d at 676. 27 The Court need not address this question, however, because SRCHC has not pled an affirmative 1 affirmative defense which is waived if not raised in the first responsive pleading. See Morrison v. 2 Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005); see also Fed. R. Civ. P. 8(c). SRCHC has not 3 raised a statute of limitations defense either in its answer or in its opposition to the motion to 4 compel arbitration. 5 B. Scope of the Arbitration Agreement 6 “[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration 7 any dispute which he has not agreed so to submit.” United Steelworkers of Am. v. Warrior & Gulf 8 Nav. Co., 363 U.S. 574, 582 (1960). “This axiom recognizes the fact that arbitrators derive their 9 authority to resolve disputes only because the parties have agreed in advance to submit such 10 grievances to arbitration.” AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648– 11 49 (1986). “[I[n deciding whether the parties have agreed to submit a particular grievance to 12 arbitration, a court is not to rule on the potential merits of the underlying claims.” Id. at 649. 13 Rather, the court “is confined to determining (1) whether a collective bargaining agreement is in 14 existence and (2) whether the agreement requires arbitration of the dispute at issue.” Unite Here 15 Loc. 30 v. Omni Hotels Mgmt. Corp., No. 19-CV-830-MMA (LL), 2019 WL 6118461, at *5 (S.D. 16 Cal. Nov. 18, 2019) (citing Int’l Union of Operating Engineers, Local 150, AFL-CIO v. Flair 17 Builders, Inc., 406 U.S. 487, 491–92 (1972). 18 “Thus ‘procedural’ questions which grow out of the dispute and bear on its final 19 disposition are presumptively not for the judge, but for an arbitrator, to decide.” Howsam v. Dean 20 Witter Reynolds. Inc., 537 U.S. 79, 84 (2002) (quoting John Wiley & Sons, Inc. v. Livingston, 376 21 U.S. 543, 557 (1964)) (emphasis in original). “[T]he presumption is that the arbitrator should 22 decide allegations of waiver, delay, or a like defense to arbitrability.” Howsam, 537 U.S. at 84 23 (internal citation and alteration omitted). However, “[t]here is some support for the proposition 24 that a court may consider a strictly procedural question as to the timeliness of a demand for 25 arbitration in those rare instances where no factual dispute exists and resolution of the issue would 26 preclude all need for arbitration.” Retail Delivery Drivers, Driver Salesmen, Produce Workers & 27 Helpers Loc. 588 v. Servomation Corp., 717 F.2d 475, 478 (9th Cir. 1983). 1 The Union maintains that the timeliness of its arbitration demand is a procedural question 2 for the arbitrator. SRCHC counters that it is not because Section 38.4 of the CBA states that

3 4. Power of Arbitrator – The Arbitrator shall render a final and binding decision only on the matter(s) jointly submitted by the parties, 4 and shall have no power to amend the collective bargaining agreement in any way. 5 (Dkt. No. 1-1 at 35.) According to SRCHC, because (1) waiving the time limits requires an 6 alteration of the CBA, and (2) the parties have not jointly submitted the procedural issue to the 7 arbitration, the issue is for the Court not the arbitrator to decide. SRCHC insists that this is one of 8 the “rare instances where no factual dispute exists” as in Servomation. SRCHC’s arguments are 9 unpersuasive. 10 First, the parties’ dispute regarding the timeliness of the Union’s arbitration demand cannot 11 be extricated from their substantive dispute. As the Supreme Court noted in Wiley, procedural 12 questions are often intertwined with the merits of a case such that both issues should be decided in 13 the same forum: 14 We think that labor disputes of the kind involved here cannot be 15 broken down so easily into their ‘substantive’ and ‘procedural’ aspects. Questions concerning the procedural prerequisites to 16 arbitration do not arise in a vacuum; they develop in the context of an actual dispute about the rights of the parties to the contract or those 17 covered by it. ... 18 Doubt whether grievance procedures or some part of them apply to a 19 particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the 20 duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration. 21 Wiley, 376 U.S. at 556-57. Here, the parties dispute whether the Union made a timely demand for 22 arbitration. Given the CBA’s broad definition of a grievance as any “complaint regarding the 23 application or interpretation of the Agreement” (Dkt. No. 1-1, § 38 at 33), the “parties’ dispute 24 about timeliness cannot be extricated from their substantive disagreement about the meaning of 25 the CBA.” Unite Here! Loc. 2 v. Tastes on the Fly, Inc., No. 21-CV-01801-DMR, 2021 WL 26 3286829, at *4 (N.D. Cal. Aug. 2, 2021) (finding that the parties’ timeliness dispute was for the 27 arbitrator not the court to decide given that the CBA broadly defined a grievance as any dispute 1 “involving the meaning/interpretation .... or alleged violation of any provision of this 2 Agreement”); see also Unite Here Loc. 30 v. Omni Hotels Mgmt. Corp., No. 19CV830-MMA 3 (LL), 2019 WL 6118461, at *7 (S.D. Cal. Nov. 18, 2019) (finding that arguments regarding 4 timeliness and conditions precedent to arbitration were for the arbitrator to decide where the 5 parties’ agreement broadly defined a grievance subject to the arbitration process as “a dispute 6 between the parties as to the interpretation or application of any provision(s) of this Agreement.”); 7 United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, 8 AFL-CIO/CLC v. Vista Metals Corp., No. 19-CV-01781 CAS (SHKx), 2020 WL 1639895, at *6 9 (C.D. Cal. Apr. 1, 2020) (collecting cases re: the same). 10 This applies equally to SRCHC’s arguments regarding the arbitrator’s “powers” under the 11 CBA—it is for the arbitrator, not this Court, to decide whether it has the power to resolve disputes 12 only if “jointly submitted” and whether resolving the parties’ timeliness dispute would involve 13 amendment of the CBA. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 14 24–25 (1983) (“[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor 15 of arbitration, whether the problem at hand is the construction of the contract language itself or an 16 allegation of waiver, delay, or a like defense to arbitrability.”). 17 Second, this is not one of the “rare instances where no factual dispute exists and resolution 18 of the issue would preclude all need for arbitration.” Retail Delivery Drivers, 717 F.2d at 478. 19 SRCHC’s argument to the contrary is essentially that there is no factual dispute because it believes 20 that it is right. The Union, however, sharply disputes SRCHC’s statement that “the deadline to 21 demand arbitration passed on July 8, 2019” and that the Union’s “late demand for arbitration was 22 unequivocally rejected.” (Dkt. No. 16 at 5.) Indeed, the Union insists that discussions were 23 ongoing—Mr. Hall, Ms. Crabtree, and Ms. Lencioni met on July 12, and according to Mr. Hall, 24 “the Union made further settlement offers.” (Dkt. No. 14-2 at ¶¶ 14-16.) Resolving these factual 25 disputes and the credibility of the parties’ versions of events is a question for the arbitrator, not the 26 Court. See Servomation, 717 F.2d at 478 (“when time limitations and other procedural 27 requirements are made an express part of the arbitration agreement, they become part of the 1 ability” and declining to rule on the parties’ timeliness dispute where the union had “claimed a 2 || reason for finding it had complied with the timeliness requirements” of the collective bargaining 3 agreement). 4 Accordingly, SRCHC has not shown a basis to depart from the general rule that procedural 5 disputes—such as the timeliness issue here—should be decided by an arbitrator, not the court. 6 C. Discovery 7 In the alternative, SRCHC asks the Court to defer ruling pending discovery. SRCHC has 8 not explained, however, how any discovery would be relevant to the motion to compel arbitration. 9 || It would not. The discovery it seeks may be relevant to the timeliness of the Union’s arbitration 10 demand, but that is an issue for the arbitrator to decide. 11 CONCLUSION 12 For the reasons stated above, the Court GRANTS the motion to compel arbitration. 5 13 || Respondent is ordered to submit the grievance regarding Ms. Lencioni’s termination to arbitration 14 || pursuant to the terms of the CBA and raise the issue of the untimeliness of the demand with the 3 15 arbitrator. 16 This Order disposes of Docket No. 14. 3 17 The Clerk shall close the case.

IT IS SO ORDERED.

19 Dated: August 31, 2022 20 li □ 21 ne ‘ACQUELINE SCOTT COR United States District Judge 23 24 25 26 27 28