- No case name available -

AL DESCHENE, Plaintiff and Appellant, v. PINOLE POINT STEEL COMPANY, Defendant and Respondent.

[Modification of opinion (76 Cal. App. 4th 33; 90 Cal.Rptr.2d 15).]

HANLON, P.J.-It is ordered that the opinion filed herein on November 3, 1999, be modified in the following particulars:

l. On page 14, line 24, at the end of the first sentence of the last paragraph, add as footnote 9 the following:

9. A narrower holding was reached in the following year by the United States Court in Wright v. Universal Maritime Service Corp. (1998) ___ U.S. ___ [119 S. Ct. 391]. Without reaching the question of whether a union-negotiated waiver of a judicial forum for a statutory antidiscrimination claim would be enforceable, the court held that a waiver by language in a CBA of employees' statutory right to a judicial forum for claims of employment discrimination must be explicitly stated, clear and unmistakable. (Id. at p. ___ [119 S.Ct. at pp. 396-397].) In Wright the CBA contained no provisions expressly subjecting statutory antidiscrimination requirements to arbitration. (Id. at p. ___ [119 S.Ct. at p. 396].) The CBA here incorporates language prohibiting discrimination against employees on a variety of grounds which do not include physical disability or retaliation for testimony adverse to the employer. Accordingly, under the "explicit, clear and unmistakable" test applied in Wright the antidiscrimination provisions of this CBA cannot meet the standard for a waiver of a judicial remedy as to Deschene's state law claims.

This footnote will require renumbering of all subsequent footnotes.

2. On page 16 under the heading "Disposition" insert additional text as follows at the end of the first full sentence so that the sentence reads as follows:

[76 Cal. App. 4th 684d] We reverse the judgment of dismissal as to plaintiff's claims of wrongful termination in violation of public policy and of discrimination on the basis of health and in retaliation for giving deposition testimony.

This modification does not effect a change in the judgment.