Later courts went against this
Criticized by Platt Pacific, Inc. v. Andelson, 6 Cal. 4th 307 (1993)
The Local cites Napa Association of Public Employees v. County of Napa (1979) 98 Cal.App.3d 263, 159 Cal.Rptr. 522 (Napa), criticized in Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 317, 24 Cal.Rptr.2d 597, 862 P.2d 158), for the proposition that the hearing officer determines gateway issues of timeliness.[5] In Napa, the employees' union local's memorandum of understanding contained a grievance procedure si…
The opinion
ELKINGTON, J.
I concur in the result.
I am in full agreement with the conclusion that the parties’ memorandum of understanding, although signed by the association alone, was for the third-party benefit of its county employee members who were entitled to enforce it. (See Civ. Code, § 1559; 1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, § 499, pp. 428-429.)
*272 As I read the record, the County of Napa had agreed with the association and its county employee members that “disagreements” over the “interpretation, application, or compliance with the terms of the Memorandum of Understanding” constituted arbitrable grievances.
Two such “disagreements,” and thus “grievances,” arose over the “interpretation” and “application” of the memorandum of understanding. The first was whether its required 10-day notice by an aggrieved employee was triggered by the informal October 20, 1977, advice to the association of the county’s intent not to allow time off on the Friday afternoons before the year-end holidays falling on Sunday, or by the actual disallowance, more than two months later, of the contended-for time off. The second was whether the memorandum of understanding should be interpreted to allow such time off to the county’s employees.
The county, having expressly agreed to arbitrate such “disagreements” and “grievances,” was bound by its agreement and the superior court should have compelled their arbitration.
I withhold my approval of such parts of the controlling opinion which may be interpreted as attenuating the rule that where one of the parties to an arbitration agreement “allows the agreed upon time to pass without making a demand, he waives his right to compel arbitration.” (Italics added.) I perceive as continuing, the general rule “that where a contract provides that arbitration may be demanded within a stated time, failure to make demand within that time constitutes a waiver of the right to arbitrate.” (See Freeman v. State Farm Mut. Auto. Ins. Co., 14 Cal.3d 473, 483 [ 121 Cal.Rptr. 477 , 535 P.2d 341 ].)
A petition for a rehearing was denied November 30, 1979, and respondents’ petition for a hearing by the Supreme Court was denied December 28, 1979.