Save Mart Supermarkets Inc. was unable to convince the California 3rd District Court of Appeal to compel three injured workers, to arbitration in suits over alleged violation of state law statutory employment claims.

Plaintiffs Jose Robles, Christopher Rymel, and David Hagins sued defendant Save Mart Supermarkets, Inc., alleging various state law statutory employment claims.

Plaintiff Jose Robles alleged he experienced an industrial injury to his thumb and his doctor said he could work with restrictions. “He was then demeaned by having to ask permission to use the bathroom and having to wear a degrading safety vest, and when he complained he was suspended without pay,” according to the opinion.

Plaintiff Christopher Rymel alleged he had an industrial injury to his back and was on Workers’ Compensation leave. He alleged he was also ordered to do what he described as degrading work conditions when he returned to work.

Plaintiff David Hagins alleged he suffered retaliaton following his reporting of a workplace hazard. The manager replied that if Save Mart had to fix the problem it would instead shut down the warehouse and fire everyone. Soon thereafter Save Mart was cited by Cal-OSHA for this violation. Four months later Hagins suffered an industrial injury.

After he saw his doctor he was placed on light duty. Save Mart then fired him. He alleges statutory theories of medical condition discrimination, retaliation, whistleblower retaliation, failure to prevent discrimination and retaliation, and termination in violation of public policies set by statute (FEHA and the workers’ compensation laws).

After successfully moving to sever, Save Mart moved to compel arbitration as to each plaintiff. The motions were heard together, and the trial court denied the motions by substantively identical orders. The trial court reasoned that the CBA at issue did not clearly and unmistakably provide for arbitration of the claims asserted.Save Mart timely appealed in each case. The court of appeal affirmed in the published case of Rymel et. al. v Save Mart Supermarkets Inc.

Generally, a collective bargaining agreement (CBA) providing for arbitration of employment grievances does not provide for arbitration of a worker’s claims based on violations of state anti-discrimination or retaliation statutes, nor do federal labor relations laws preempt such claims.

The parties agreed that the CBA did not explicitly refer to FEHA, the whistleblower statute, and the California workers’ compensation laws. Thus the CBA was silent on the California statutes plaintiffs contend Save Mart violated.

To be valid, an arbitration agreement must reflect the mutual intention of the parties that disputes between them will be resolved out of court; in doing so it operates as a waiver of the right to sue for redress of grievances. A party is not generally compelled to arbitrate a claim unless she has agreed to do so; arbitration is conducted by consent.