NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITE HERE LOCAL 30, 

Plaintiff-Appellant, 

 v. 

VOLUME SERVICES, INC., DBA 

CENTERPLATE, INC.,

Defendant-Appellee.

No. 16-55528

D.C. No. 

3:15-cv-01670-MMA-WVG

MEMORANDUM*

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.

FILED

JAN 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

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.
3

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. 
4

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

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. 

FILED

JAN 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS