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Arbitration Procedures
Other topics: Arbitration Punishment Awards – Right of Courts to Interfere and Impasse Arbitration.
The Supreme Court of Texas ruled that deputy county constables were “police officers” entitled to enter into a collective bargaining agreement (CBA) with their employers under state law. It further held that an arbitrator did not exceed his authority in awarding relief to the deputy constables. The county argued that the arbitrator exceeded his authority in concluding that the county violated the CBA by eliminating several deputy constable positions without regard to seniority and ordering the county to reinstate the deputies in order of seniority. The Supreme Court affirmed, holding that deputy constables are “police officers” under the CBA, that the CBA was valid and enforceable, and that the arbitrator did not exceed his authority in ordering the deputies’ reinstatement on a seniority basis. Jefferson County v. Jefferson County Constables Assn., #16-0498, 2018 Tex. Lexis 314.
A supervisor at the Social Security Administration proposed removing an information technology specialist because of alleged violations of the time and attendance policy. An assistant associate commissioner sustained four charges and terminated the employee. The union submitted a grievance and invoked arbitration. The employee obtained the records of the eight other individuals within her component at the Division of Network Engineering (DNE) for the relevant time period. Those records were analyzed by a CPA, Certified Product Examiner, and Certified Information Technology professional, who concluded that the eight other employees had committed the same or similar violations as her but none were investigated or charged with misconduct. The parties later stipulated that those employees were under investigation, but had not yet been charged. The arbitrator sustained the employee’s removal, finding that the comparators were not similarly situated because possible disciplinary action regarding them was still pending. A federal appeals court vacated the ruling, finding that the employee sufficiently raised the issue of disparate treatment but the arbitrator erred in his treatment of the comparator evidence. His categorical conclusion that the eight other employees could not be comparator employees because they were under investigation was an incorrect statement of the law. Although the fact that a comparator employee is under investigation is a factor to be considered in determining whether that comparator is similarly situated, it is not a complete bar to consideration. Miskill v. Social Security Administration, #16-1598, 863 F.3d 1379 (Fed. Cir. 2017).
An arbitrator's award in an employee's dispute ordering an employee fired for misconduct reinstated rested entirely on the Amtrak Inspector General's noncompliance with Rule 50 of the Amtrak-police union collective bargaining agreement, which imposed procedural limitations on the conduct of internal investigations. Under the Inspector General Act of 1978, however, proposals concerning Inspector General-investigation procedures were not an appropriate subject of bargaining. A federal court, reviewing an arbitration award, could refuse to enforce contracts that violated law or public policy. Rule 50, as applied to the Amtrak Inspector General, was such a contractual provision and the trial court was right in refusing to enforce the arbitrator's award based on that provision. National Railroad Passenger Corp. v. Fraternal Order of Police, #16-7004, 855 F.3d 335 (D.C. Cir. 2017).
A police department’s union contract included a grievance procedure. The union was empowered to refer a grievance to arbitration if it was not resolved within the three-step procedure. The police chief signed a complaint for termination of an officer for allegedly violating departmental procedures during a traffic stop. A hearing before the village’s board of fire and police commissioners ordered termination. The Illinois Supreme Court ruled that an order for the parties to proceed to arbitration was improper because the grievance was barred pursuant both to principles of waiver as well as the doctrine res judicata and therefore, the village was entitled to summary judgment in its favor on its complaint for declaratory judgment and for stay of arbitration. The union's and officer's actions in participating in the board hearing prior to filing their grievance waived any potential right to statutory arbitration of that grievance; Because the officer's and union's claims concerning the standards for discipline or termination of officers in the labor contract existed at the time the board decision was made, the officer and union were barred from relitigating those claims. The Village of Bartonville v. Lopez, #120643, 2017 IL 120643, 2017 Ill. Lexis 4.
An
employee of the U.S. Government Printing Office belonged to a union that had negotiated
a collective bargaining agreement providing a grievance procedure to contest
adverse employment actions as an alternative to appealing to the Merit System
Protection Board. When he was reassigned to a different job, resulting in a
demotion to a lower grade as well as a cut in pay, he filed such a grievance,
but the arbitrator dismissed the claim as not arbitrable because a four month
deadline required by the agreement for holding a hearing had passed. Reversing,
a federal appeals court found that the four month period was only a nonbinding
"housekeeping" rule designed to encourage timely arbitration and
failure to comply with that deadline, which was addressed to the arbitrator as
well as the employee and employer, did not require dismissal of the grievance.
Muller v. Gov't Printing Office, #15-3032, 2016 U.S. App. Lexis 638 (Fed.
Cir.).
A union representing
federal employees at an army depot and an arsenal filed grievances challenging
the furloughing of bargaining unit employees for six discontinuous days as a
result of an automatic process of federal agency spending known as
sequestration. An arbitrator ruled that the furloughs of the employees at the
army base were in accordance with the law, but that the furloughs of security
employees at the arsenal were not, although the furloughs of non-security
employees there were lawful. A federal appeals court upheld both rulings. There
was substantial evidence that the arbitrator relied on that the upheld
furloughs were reasonable management solutions to the budget limitations
imposed by the sequester. Nat'l Fed'n of Fed. Employees v. Dep't of the Army,
#14-3175, 2015 U.S. App. Lexis 18136 (Fed. Cir.).
A woman was employed by the U.S. Citizenship and
Immigration Services, and was covered by a collective bargaining agreement. The
employer placed her on a performance improvement plan after she was found to
have unsatisfactory performance, and was subsequently evaluated as having
failed to improve. This eventually led to her termination. She took the issue
to arbitration, which was allowed but not required under the agreement. The
arbitrator concluded that she could not challenge the key bases for her removal
with respect to her failure to improve her performance under the improvement
plan. The collective bargaining agreement, pursuant to 5 U.S.C. 7121, spelled
out the exclusive process, including time limits, for challenging the
determinations of her unsatisfactory performance, but the employee had
abandoned the process after initially filing grievances, so the time deadlines
had passed. Accordingly, the arbitrator barred any reconsideration of issues
raised in her prior grievances or that could have been raised then. A federal
appeals court upheld this result, finding that the arbitrator acted properly in
enforcing a grievance process that the collective bargaining agreement
designated as the exclusive remedy. Appleberry v. Dep't of Homeland Sec.,
#14-3123, 2015 U.S. App. Lexis 11715 (Fed. Cir.).
A transit authority fired two of its police
officers for misconduct who were represented by a police union, reinstated them
on administrative leave after an arbitration award ordered them to do so, and
then fired both of them a second time after the state of Maryland declined to
recertify them as police officers. The union challenged the second firing in
federal court, claiming that it violated the arbitration award, and the trial
court ordered the officers again reinstated. A federal appeals court reversed.
It held that the employer didn't violate the arbitration awards by the second
firing, and that the federal courts lacked authority to decide whether the
employer's actions violated the collective bargaining agreement, as the
officers' grievances belonged being decided by arbitration, not by a federal court.
The denial of their recertification resulted in a new independent basis for the
officers' termination, which could only be challenged by the filing of a new
grievance. FOP Metro Transit Police Labor Committee, Inc. v. Washington
Metropolitan Area Transit Authority, #14-1332, 780 F.3d 238 (4th Cir. 2015).
A trial court declined to compel the individual
arbitration of grievances by county union employees represented by a deputy
sheriffs' association, ruling that state law gave it discretion to stay the
arbitration while the court first resolved issues between the parties that were
not subject to arbitration and which could render the arbitrations unneeded. An
intermediate state appeals court reversed, finding that all issues between the
parties were subject to arbitration, so the state statute at issue did not
apply. The grievances sought overtime pay for "donning and doffing"
uniforms and equipment and off the clock supervisory activities by certain
employees. Association for Los Angeles Deputy Sheriffs v. County of Los
Angeles, #B254982, 234 Cal. App. 4th 459, 183 Cal. Rptr. 3d 854, 2015 Cal. App.
Lexis 144, 202 L.R.R.M. (BNA) 3381.
A police officer was terminated for a series of
incidents in which he appeared to act in a hostile and aggressive manner. An
arbitrator ordered the officer's reinstatement after a grievance was filed, and
the Montana Supreme Court held that the arbitrator did not exceed her authority
under state law because her reasons for her decision were based on her
interpretation of the provisions in a collective bargaining agreement governing
discipline and termination. The award did not violate any management rights,
such as the right to require officers to take fitness for duty examinations.
The arbitrator was within her authority in determining that a fitness for duty
examination was an improper approach under the circumstances. City of
Livingston v. Montana Public Employees Association, #DA 14-0083, 2014 MT 314,
377 Mont. 184, 339 P.3d 41, 2014 Mont. Lexis 704. .
A
fire lieutenant was fired. He did not have a right to arbitrate his grievance
under the collective bargaining agreement when the union had not referred the
grievance to arbitration. Further, there was no due process violation when the
findings of the Board of Police and Fire Commissioner that he had threatened
his supervisors and their families was supported by the manifest weight of the
evidence, and his statements that he wished to kill his supervisors was
adequate to support his termination, since it constituted conduct unbecoming
his position. Woods v. The City of Berwyn, 2014 IL App (1st) 133450, 2014 Ill.
App. Lexis 753.
A former postal employee was not required to
resolve her claims arising under the Family and Medical Leave Act (FMLA)
through arbitration because her union's collective bargaining agreement with
the employer did nor clearly and unmistakably require her to do so. The
collective bargaining agreement's incorporation of the federal Rehabilitation
Act's prohibitions on disability discrimination, however, was sufficiently
clear and unmistakable enough to waive her right to sue for claims under that
statute in federal court. Because the plaintiff had subsequently retired, she
lost her standing to seek injunctive relief, as she could not realistically
face a continuing threat of violation of her rights under the FMLA. Gilbert v.
Donahoe, #13-40328, 2014 U.S. App. Lexis 8182 (5th Cir.).
A county employee sued his employer for
disability discrimination, harassment, and unlawful retaliation under state
law. The county sought to compel arbitration of the claim under the provisions
of a collective bargaining agreement. An intermediate California appeals court
held that the employee, who had a statutory disability discrimination claim
could not be compelled to arbitrate that claim when the bargaining contract did
not contain a promise amounting to an unmistakable and clear waiver of the
right to pursue the statutory discrimination lawsuit. Volpei v. County of
Ventura, #B243954, 2013 Cal. App. Lexis 903.
A lawsuit was filed over a ute about whether a
collective bargaining agreement governed a controversy over the city refusing
to hire a member of the FOP Labor Council to operate a snow plow when he was
off duty. The contract stated that only grievances concerning an express
provision would be subject to submission to arbitration. Accordingly, not every
police officer grievance could be arbitrated. The city was not obligated to
arbitrate the immediate dispute since there was no contract provision saying
that any officer could arbitrate a failure to hire him to run a snowplow while
off duty. City of Naperville v. Illinois Fraternal Order of Police, 2013 IL App
(2d) 121071, 2013 Ill. App. Lexis 654.
A police sergeant who served as a union representative
was transferred on the basis of the city's expressed concerns about his
exercise of supervisory authority. The union tried to enforce a provision of
the collective bargaining agreement prohibiting the transfer without voluntary
agreement of certain union representatives between stations. A grievance
arbitrator ordered the officer's reinstatement to his original position and
damages, finding that the contract had been violated. The highest court in
Massachusetts ordered that the award be vacated, finding that the arbitrator
exceeded his authority in overturning the transfer, since the police
commissioner had statutory non-delegable powers to assign and transfer officers
within the department. City of Boston v. Boston Police Superior Officers
Fed'n, #SJC-11238, 466 Mass. 210, 2013 Mass. Lexis 688.
A police officer challenging his termination for
misconduct allegedly involving a public act of masturbation claimed that his
due process rights were violated when the city council, before voting to reject
an arbitrator's advisory award reinstating him, received advice from a lawyer
who was a partner in the same firm that had represented the city at the
arbitration hearing. An intermediate California appeals court held that this
did indeed violate the employee's due process rights, and compromised the
fairness of the proceeding. A new proceeding was ordered, prior to which the
council was to obtain independent legal advice. Sabey v. City of Pomona,
#B239916, 215 Cal. App. 4th 489, 2013 Cal. App. Lexis 291.
A union representing
police officers believed that a retiree health insurance subsidy provision in a
collective bargaining agreement locked the subsidy in place as it existed at
the time of the officer's retirement. The union sought arbitration of a dispute
over the county's attempt to reduce the subsidy. The county argued that it need
not arbitrate as the collective bargaining agreement had expired and that the
subsidy was subject to change from year to year. An arbitrator agreed, but an
intermediate appeals court vacated the award. Reversing, the highest court in
Maryland ruled that an arbitration clause can survive the expiration of a
collective bargaining agreement as to vested rights obtained during the
contract's term, and that the issue of arbitrability had been one for the
arbitrator to initially determined rather than the courts. Baltimore County
Fraternal Order of Police Lodge v. Baltimore County Court, #3/12, 2012 Md.
Lexis 750.
Federal courts lack jurisdiction to decide
a dispute between management and two postal unions, where the bargaining
agreement provides for mandatory arbitration. Trenton Metro Area Local v. U.S.
Postal Serv., #08-3941, 2011 U.S. App. Lexis 2862 (3rd Cir.).
Reversing a lower court, a California appellate
panel revives an arbitration award. The arbitrator had ordered the
reinstatement of a city employee accused of sexual harassment because the
collective bargaining agreement required disciplinary action to be implemented
within six months of learning of the alleged misconduct, and the city did not
act in time. City of Richmond v. SEIU, L-1021, #A127492, 2010 Cal. App. Lexis
1827 (2010).
Reversing a lower court, a California appellate
panel revives an arbitration award. The arbitrator had ordered the reinstatement
of a city employee accused of sexual harassment because the collective
bargaining agreement required disciplinary action to be implemented within six
months from learning of the alleged misconduct, and the city did not act in
time. City of Richmond v. SEIU, L-1021, #A127492, 2010 Cal.App. Lexis 1827
(2010).
Arbitrator may rely on a prior award involving a
similar issue. "In the absence of an express agreement or a requirement by
statute, an arbitrator is not required to set forth any findings of fact and
conclusions of law supporting an award. ... Thus, simply relying on the
rationale of a previous arbitration decision is not fatal." Rhode Island
Dept. of Corrections v. Bro. of Corr. Officers, #PM-08-4416s, 2010 R.I. Super.
Lexis 128.
Five-judge appellate panel concludes that a
no-layoff clause in a bargaining agreement is not subject to any prohibition
against arbitration. A New York municipal fire dept. did not violate public
policy by voluntarily including a reasonable job security provision in a
bargaining agreement that lasted only three years. Johnson City Prof.
Firefighters L-921 and Vil. of Johnson City, #507278, 2010 N.Y. App. Div. Lexis
2825 (3rd Dept.).
In a 5-to-4 holding, the Supreme Court upheld a
provision in an employment agreement that provided that an arbitrator, and not
a court, should rule on the enforceability of an arbitration agreement between
the employer and employees. The plaintiff tried to litigate a discrimination
claim in federal court. Rent-A-Center v. Jackson. #09-497, 2010 U.S. Lexis 4981
The Supreme Court has noted that "when a
contract is formed can be as critical as whether it was formed." The
ratification date does not "arise under" the agreement and is a
decision for a court, not the arbitrator. Granite Rock v. Teamsters, #08-1214,
2010 U.S. Lexis 5255.
Although "Illinois case law clearly holds
that a non-compensatory, punitive damages award, which is not expressly
provided for in a collective bargaining agreement, must be vacated," an
arbitration award that contains a time-and-one-half monetary remedy is not
"punitive" and will be enforced. City of Chicago v. FOP L-7,
#1-09-1218, 926 N.E.2d 912, 188 LRRM (BNA) 2496, 2010 Ill. App. Lexis 225 (1st
Dist.).
N.Y. appellate panel concludes that a public
employee waives a right to seek binding arbitration by filing a civil action to
challenge an alleged violation of the bargaining agreement. Matter of County of
Rockland v. Rockland Assn. of Management, #2008-09321, 891 N.Y.S.2d 285, 2010
NY Slip Op 00144, 2010 N.Y. App. Div. Lexis 145 (2nd Dept.).
In a 5-2 holding, the Pennsylvania Supreme Court
overturns an arbitrator's ruling for a terminated police officer because the
city was late in complying with a discovery request. A court or tribunal, when
determining possible sanctions to a party, should consider (1) the prejudice,
if any, endured by the non-offending party and the ability of the opposing
party to cure any prejudice; (2) the non-complying party's willfulness or bad
faith in failing to provide the requested discovery materials; (3) the
importance of the excluded evidence in light of the failure to provide the
discovery; and (4) the number of discovery violations by the offending party.
City of Phila. v. FOP L-5 (Breary), #38 EAP 2007, 2009 Pa. Lexis 2792.
Ninth Circuit finds that a court, not the arbitrator,
must decide the threshold question of arbitrability when a party challenges an
arbitration agreement as unconscionable. Jackson v. Rent-a-Center, #07-16164,
2009 U.S. App. Lexis 20133 (9th Cir.).
Boston's sheriff must arbitrate a union grievance
over changes to assignments, scheduled days off and vacation schedules. Sheriff
of Suffolk County v. AFSCME Council 93, Local 419, #07-P-885, 75 Mass. App. Ct.
340, 914 N.E.2d 124, 2009 Mass. App. Lexis 1176.
A court “has no power to set aside an arbitration
award because another construction could be given to the contract provisions
and a different conclusion reached.” Steuben County v. CSEA L-1000, #281 CA
01-02277, 292 A.D.2d 810, 738 N.Y.S.2d 923, 2002 N.Y. App. Div. Lexis 2567 (4th
Dept.); leave to appeal denied, 98 N.Y.2d 606.
Diabetic ex-police officer may proceed with a
disability-related constructive discharge claim, even though an arbitrator
found that he had voluntarily left his job. The bargaining agreement did not
require that claims based on or arising from federal statutes must be
arbitrated. Catrino v. Town of Ocean City, #09-505, 2009 U.S. Dist. Lexis 59783
(D. Md.).
Fourth Circuit enforces an arbitration demand,
despite the fact that the grievances were filed after the bargaining agreements
had expired. The statute of limitations period does not begin until a party
unequivocally refuses to arbitrate. United Steel Workers v. Continental Tire,
#08-1778, 568 F.3d 158, 2009 U.S. App. Lexis 12469 (4th Cir.).
In a suit where security personnel raised
discrimination issues, the Supreme Court holds that a provision in a collective
bargaining agreement that clearly and unmistakably requires union members to
arbitrate ADEA claims was enforceable as a matter of federal law. 14 Penn Plaza
v. Pyett, #07-581, 2009 U.S. Lexis 2497.
In an action claiming that a city breached its
obligations under the Employee Retirement Income Security Act of 1974 to make
contributions to the fund, the city could not seek dismissal on the ground that
a bargaining agreement called for binding arbitration. The CBA did not empower
the city to initiate arbitration. Dugan v. City of W. Chicago v. Int. Union,
etc., #08 C 2223, 2009 U.S. Dist. Lexis 22110 (N.D. Ill.).
In a suit where security personnel raised
discrimination issues, the Supreme Court holds that a provision in a collective
bargaining agreement that clearly and unmistakably requires union members to
arbitrate ADEA claims is enforceable as a matter of federal law. 14 Penn Plaza
v. Pyett, #07-581, 2009 U.S. Lexis 2497.
An arbitrator’s award
that concludes the City violated its own personnel rules and directing the
employee to be made whole, without more, is an enforceable award. “As sometimes
happens, the arbitrator ordered the parties to work out the details of the
make-whole remedy, which they did not do.” The appropriate action is not to
vacate the award but to remand the dispute back to the arbitrator to fashion a
more definitive remedy. Mossman v. City of Oakdale, #F054983, 2009 Cal. App.
Lexis 40 (5th Dist).
Third Circuit upholds an arbitration clause
written in English, when the employee speaks only Spanish. Absent a showing of
fraud, the fact that a person cannot read, write, speak, or understand the
English language is immaterial to whether an English-language agreement is
enforceable. Morales v. Sun Constructers, #05-4753, 2008 U.S. App. Lexis 18513
(3rd Cir.).
Violations of the Uniformed Services Employment
and Reemployment Rights Act are subject to arbitration clauses. Landis v.
Pinnacle Eye Care, #07-6204, 537 F.3d 559, 2008 U.S. App. Lexis 17055, 2008 FED
App. 0285P, 184 LRRM (BNA) 2904 (6th Cir.).
Appeals court overturns an arbitration award that
ignored the time limit for filing a grievance by characterizing it as a
continuing violation. The time limit for filing grievances was plain and
unambiguous. City of Fairfield, Ohio v. AFSCME C-8, #CA2007-11-267, 2008 Ohio
App. Lexis 3300, 2008 Ohio 3891 (12th Dist.).
Arbitrator finds that a union was guilty of
laches in not raising an overtime issue for three years. City of Oregon, Ohio
and Ore. Part-time Fire Fighters Assn., FMCS Case #07/59337, 124 LA (BNA) 1592
(Bell, 2008).
Pennsylvania appellate court reinstates an
arbitration award granting a duty-related pension to a disabled officer. The
arbitrator did not exceed his powers by awarding the officer a work-related
disability pension. Bor. of Mahanoy City v. M.C. Police Dept., #1172 C.D. 2007,
2008 Pa. Commw. Lexis 194.
Iowa deputy sheriffs must appeal terminations to
the civil service commission. A bargaining agreement clause providing for
arbitration contravenes Iowa Code 314A12 Kucera v. Baldazo, #05-2138, 745
N.W.2d 481, 2008 Iowa Sup. Lexis 34.
In a pay rate dispute, arbitrator rejects a
city's request to bifurcate the hearing to allow a ruling on arbitrability
followed by a hearing on the merits -- including a possible appeal of the first
award; the inefficiency and cost of such procedure would defeat the value of
arbitration as an alternative dispute resolution method. "... one of the
fundamental objectives of arbitration - speedy resolution of disputes - could
be thwarted if parties were able to delay arbitration by litigating procedural
formalities before the trial court." City of Northfield and IUOE, L-70,
124 LA (BNA) 1077, BMS Case #07-PA-1041 (Daly, 2008), citing Brothers Jurewicz
v. Aheari, 296 N.W.2d 422 at 427 (Minn. 1980) and Bartley v. Jefferson Parish,
302 So.2d 280 (La. 1974).
"A party that does not object to the
arbitrator's jurisdiction during the arbitration may not later do so in
court." Howard University v. Metro. Campus Police, 512 F.3d 716, 2008 U.S.
App. Lexis 1038, 183 LRRM (BNA) 2526 (D.C. Cir.).
Oklahoma arbitrator declines to decide whether a
terminated firefighter was entitled to workers' compensation benefits, where
the bargaining agreement precluded an arbitrator from interpreting or applying
external law. City of Tahlequah and IAFF L-4099, FMCS Case #06/512272-7 124 LA
(BNA) 1147 (Nicholas, 2007).
Illinois appellate panel finds that the lower
court erroneously vacated an arbitration award in favor of a city because the
judge disagreed with the arbitrator's application of a clause in the bargaining
agreement. "The scope of judicial review of an arbitration award is
nothing like the scope of an appellate court's review of a trial court's
decision because the Uniform Arbitration Act provides for limited judicial
review of the arbitrator's award." Judicial reviews of arbitration awards
are limited to a finding of bad faith, fraud, exceeding the arbitrator's
authority, or deliberately refusing to follow the law, none of which occurred.
IAFF L-37 v. City of Springfield, #4-07-0439, 2008 Ill. App. Lexis 49 (4th
Dist.).
Federal court concludes that a military reservist
was bound by an agreement to arbitrate all employment-related claims, including
discrimination or retaliation arising from his military service. The USERRA
does not prohibit arbitration and the Congress has repeatedly declined to
create bars to arbitration in other statutes. Kitts v. Menards, #3:2006cv00708,
2007 U.S. Dist. Lexis 73052, 182 LRRM (BNA) 3109 (N.D. Ind.).
"Federal courts are not obligated to accord
res judicata or collateral estoppel to an arbitrator's decision." Lohman
v. Duryea Borough, #3:05-CV-1423, 2007 U.S. Dist. Lexis 87720 (M.D. Pa.),
citing McDonald v. City of West Branch, 466 U.S. 284 at 285-6 (1984). Retiree
benefits are not arbitrable if they don't vest prior to expiration of the
collective bargaining agreement. Crown Cork & Seal v. Intl. Assn. of
Machinists, #06-3639, 2007 U.S. App. Lexis 22207 (8th Cir.).
Arbitration of a grievance two years after it is
filed is contrary to the intent of the bargaining process, but a long delay, by
itself, does not necessarily make a grievance inarbitrable. Cook County/Sheriff
and SEIU L-73, 123 LA (BNA) 1674 (Wolff, 2007).
Second Circuit overturns an arbitration award
that denied a prevailing age discrimination plaintiff the recovery of $262,000
in attorney fees. Porzig v. Dresdner Kleinwort, #06-1212-cv, 2007 U.S. App.
Lexis 18674 (2nd Cir.).
Appellate court overturns an arbitration award
where the city's witnesses were not allowed to testify because a document had
not been given to the accused officer. The union should have used other means
to enforce the documents subpoena; a preclusion order was too drastic a remedy.
City of Philadelphia v. Frat. Order of Police L-5, #44C.D.2007, 2007 Pa. Commw.
Lexis 409.
California appellate court finds that an
arbitrator exceeded her authority when she concluded that the bargaining
agreement did not comport with the parties' actual understanding. State
employee bargaining agreements must be approved by the legislature, and cannot
be later modified by an arbitrator, even if there was a mutual
misunderstanding. Dept. Pers. Admin. v. Cal. Corr. Peace Officers Assn.,
#C051636, 2007 Cal. App. Lexis 1100 (3rd Dist.).
Appellate court concludes that nonparties to an
arbitration between another union and the city lack standing, under statute or
common law, to set aside the award and the police union's claims of harm were
too speculative to give rise to a cognizable interest. P.B.A. v Dist. Council
37 AFSCME, #117494/04, 2007 N.Y. App. Div. Lexis 3870, 2007 NY Slip Op 02620
Appellate court sustains an arbitrator's finding
that the management's new policy to reduce staffing on fire engines violated
the bargaining agreement. The appellate panel found that the arbitrator's
decision drew its essence from the agreement and the arbitrator did not exceed
his authority when he gave "great weight" to the staffing requirement
suggested by the NFPA. City of Dayton and IAFF L-136, # 21681, 2007-Ohio-1337,
2007 Ohio App. Lexis 1207 (2nd Dist.).
Illinois Supreme Court concludes that a ban on
class actions in an arbitration clause is unconscionable and unenforceable.
Kinkel v. Cingular Wireless, #, 2006 Ill. Lexis 1639, 2006 WL 2828664 (Ill.
2006); also see Kristian v. Comcast, #04-2619, 446 F.3d 25 (1st Cir. 2006).
[N/R]
Appellate court overturns an arbitration award
that applied a beyond reasonable doubt standard to the trial of a corrections
lieutenant that was accused of having sex with an inmate. N.Y. State Law
Enforcement Officers Union C-82 v. State of New York, #500783, 2006 N.Y. App.
Lexis 14103, 2006 NY Slip Op 08861 (3rd App. Dept. 2006). [N/R]
California appellate court rejects a management
assertion that arbitrators cannot interpret statutes. Calif. Corr. Peace
Officers Assn v. State of Calif., #A112311, 2006 Cal. App. Lexis 1386, 180 LRRM
(BNA) 2631 (2006). {N/R}
Federal district court declines to vacate an
arbitration award even though the arbitrator refused to grant a continuance when
the union's main witness became unavailable due to surgery. Healthcare Workers
L-250 v. American Medical Response, #CV-F-05-1333, 2006 U.S. Dist. Lexis 42134,
179 LRRM (BNA) 3159 (E.D. Cal. 2006). {N/R}
A law permitting binding arbitration of a promotions
procedures dispute did not apply to the a fire dept. that had years of
intentional and unintentional discrimination against minorities and women, and
would interfere with the city's duty to end biased promotional practices. San
Fran. Fire Fighters L-798 v. C&C of San Francisco, #S131818, 2006 Cal.
Lexis 5932 (Cal. 2006).{N/R}
Claims brought under Uniformed Services
Employment and Reemployment Rights Act are subject to arbitration under the
Federal Arbitration Act (FAA). Garrett v. Circuit City Stores, #04-11360, 2006
U.S. App. Lexis 11755 (5th Cir. 2006). {N/R}
Illinois rules that workers are bound by a
mandatory arbitration agreement when they sign an employer's form to that
effect. Illinois does not require a "knowing and voluntary" waiver,
because that is not a condition that applies to contracts generally. Melena v.
Anheuser-Busch, #99421, 2006 Ill. Lexis 329 (2006). {N/R}
Seventh Circuit upholds an award to a union,
assessed against the employer, for filing a lawsuit to overturn an arbitration
award. Cuna Mutual Insur. v. Office & Prof. Employees L-39, #05-1021, 2006
U.S. App. Lexis 6390 (7th Cir. 2006). {N/R}
Arbitrator allows a successful grievant to
recover attorney's fees noting that when one party acts arbitrarily, capriciously,
or in bad faith, such fees awards have been upheld by the courts. City of
Mansfield and IAFF L-266, 121 LA (BNA) 1141, FMCS Case No. 0555999-8 (Szuter,
2005). [2006 FP Feb]
Federal appeals court upholds mandatory
arbitration remedy, where the employee received a copy of the rules and
continued to work. Written acceptance of an arbitration agreement was
unnecessary. Marino v. Dillard's, #04-30911, 413 F.3d 530, 2005 U.S. App. Lexis
11837 (5th Cir. 2005). {N/R}
Ohio appellate court upholds a clause in the
bargaining agreement requiring employees to arbitrate any wrongful termination
claims. Knipp v. Lawrence County, #04CA34, 2005 Ohio 3103, 2005 Ohio App. Lexis
2888 (2005). {N/R}
Federal appeals court affirms a management
practice of classifying termination appeals as "abandoned" if the
union has failed to schedule arbitration review within twelve months.
Cruz-Martinez v. Dept. of Homeland Security, #04-3271 2005 U.S. App. Lexis
10418, 177 LRRM (BNA) 2534 (Fed Cir. 2005). [2005 FP Aug]
Retroactivity: Unless the bargaining agreement
provides otherwise, a grievance is arbitrable even though the event giving rise
to the demand occurred before the parties had agreed to grievance arbitration
for the first time in the current contract. Matter of Ramapo v. Ramapo P.B.A.,
#2003-00584, 2005 N.Y. App. Div. Lexis 3790, 2005 NY Slip Op 02863 (2d Dept.
2005). {N/R}
An arbitration award, where the arbitrator cited
language in his decision that cannot be found in the bargaining agreement,
should be upheld if the inclusion does not fatally taint the balance of the
arbitrator's decision. Brentwood Med. Assn. v. UMW, # 04-1955, 396 F.3d 237,
176 LRRM (BNA) 2594 (3d Cir. 2005). {N/R}
An employer's requirement that discrimination
complaints be brought to arbitration during a 180-day period "unreasonably
favors" an employer and was "unconscionable." Adler v. Manor,
#74701-6, 2004 Wash. Lexis 93 (Wash. 2004). {N/R}
A provision that all arbitration proceedings,
including settlements and awards, remain confidential was unenforceable and
unreasonable here because it only benefits the employer. Zuver v. Airtouch
Comm., #74156-5, 103 P.3d 753, 2004 Wash. Lexis 936 (Wash. 2004). {N/R}
Arbitrator refuses to discipline a warden for his
failure to respond to a disciplinary grievance, and also declines to enter a
default award. Grievances should be decided on their merits unless the
bargaining agreement provides for default awards. Fed. Bur. of Prisons and
Council of Prison Locals AFGE, 119 LA (BNA) 1812, FMCS #03/10025 (Franckiewicz,
2004). [2004 FP Dec]
Eighth Circuit holds that a fee-splitting clause
does not make an arbitration agreement unconscionable and the courts must
conduct a case-by-case review to see if the fees are prohibitive. Courts should
sever any unreasonable cost-sharing clause and then compel arbitration. Faber
v. Menard, #03-3075, 367 F.3d 1048, 2004 U.S. App. Lexis 10054 (8th Cir. 2004).
{N/R}
Arbitration Procedures Arbitrator finds it is
desirable to issue an advisory opinion in a disciplinary grievance appeal, even
though case is not arbitrable because of time violations. City of Okmulgee and
FOP L-96, 119 LA (BNA) 1227 (Robinson, 2004). {N/R}
Police officer who was fired for a residency
violation lacks standing to petition the courts to vacate the arbitrator's
award; the grievance was between the employer and union under the bargaining
agreement. Leon v. Boardman Twp. Ohio, #2002-1955, 100 Ohio St.3d 335, 2003
Ohio 6466, 800 N.E.2d 12, 2003 Ohio Lexis 3419, 174 LRRM (BNA) 2731 (2003).
{N/R}
Massachusetts appellate court concludes that
arbitrators do not need specific authority to modify disciplinary punishment,
where the bargaining agreement requires "just cause." Boston Police
Patrolmen's Association v. City of Boston, #02-P-883, 60 Mass. App. Ct. 672,
805 N.E.2d 80, 2004 Mass. App. Lexis 298 (2004). [2004 FP Jun]
California appellate court rejects an arbitration
clause in a plaintiff's employment contract because of its cost-sharing
provision and it lacked mutuality and fairness. Abramson v. Juniper, #H025840,
2004 Cal. App. Lexis 151 (6th Dist. 2004). {N/R}
Appeals court holds that arbitrator could clarify
a two-year-old award. Neither the Ohio three-month time limitation to modify an
award nor the Ohio one-year time limitation to confirm an award applies to a
request to clarify an award. The doctrine of functus officio (having fulfilled
the function, the arbitrator had no further authority) does not apply where an
award is susceptible to more than one interpretation. Sterling China v. Glass
Workers Union, #02-3773, 2004 FED App. 0037P, 2004 U.S. App. Lexis 1556 (6th
Cir. 2004). Note: The Federal Labor Relations Authority reached the same
conclusion in upholding an interpretative award six years after the initial
ruling. AFGE L-1156 and U.S. Navy, #0-AR-3294, 2001 FLRA Lexis 141, 57 FLRA No.
116 (FLRA 2001). {N/R}
Appeals court rejects a second demand for
arbitration, after the employer failed to advance the costs for the first
arbitration hearing. Sink v. Aden, #02-35323, 2003 U.S. App. Lexis 24773 (9th
Cir. 2003). {N/R}
Although courts should not modify or set aside an
arbitration award, absent a defect, the issue of whether a party is in
compliance with an arbitration award is properly decided by a court. An
appellate panel upholds a trial court ruling that a sheriff's modified staffing
of the jail, during the graveyard shift, complied with the award. Ohio
Patrolmen's Benev. Assn. v. Cuyahoga Co., #82238, 2003 Ohio 4349, 2003 Ohio
App. Lexis 3856, 173 LRRM (BNA) 2179 (Ohio App.8th Dist. 2003). {N/R}
Whether the use of "administrative search
warrants" to conduct locker searches is lawful is a question for an
arbitrator under the bargaining agreement, and not the courts, when the issue
is raised by a union and not by an officer who claims that his rights were
violated. [2004 FP Feb]
Prior precedent reversed; the Ninth Circuit now
approves of compulsory Title VII arbitration. EEOC v. Luce, Forward, Hamilton
& Scripps, 345 F.3d 742, 2003 U.S. App. Lexis 20007, 92 FEP Cases (BNA)
1121 (9th Cir. en banc 2003). [2004 FP Jan]
Arbitrator declines to decide a disability
discrimination complaint. Arbitrators should not look to outside law to confer
jurisdiction, and must "not to add to the terms of the contract."
Ohio Dept. of Health and Ohio CSEA-AFSCME, L-11, 118 LA (BNA) 1361 (Murphy,
2003). {N/R}
Arbitrator declines to stay a grievance hearing
because management also is pursuing a remedy with the Federal Labor Relations
Authority. Bur. of Customs and NTEU, 118 LA 1371 (Abrams, 2003). {N/R}
Arbitrator holds that management did not
waive its right to object to an untimely request for arbitration, when it
participated in the FMCS arbitrator selection process. Bur. of Prisons,
Beaumont TX and AFGE L-1010, FMCS #03/06117, 118 LA (BNA) 1086 (Moreland,
2003). {N/R}
Arbitrator holds that
management erred when it refused to pay for half of cost of stenographer used
at arbitration hearing. Although AAA rule 21 provides that the requesting party
shall pay the cost of making a record, the bargaining agreement provided that
the "costs for arbitration" were to be borne equally by parties.
Union-Scioto Bd. of Educ. and Uniioto Support Assn., AAA Case #52-390-00463-02,
118 LA (BNA) 710 (Cohen, 2003). {N/R}
Eighth Circuit holds that if, during the course
of tripartite arbitration, a party-appointed arbitrator dies or resigns, the
parties do not need to start all over again. The party that the arbitrator
represented should name a replacement. National Am. Ins. v. Transamerica Occid.
Ins., #02-1992, 328 F.3d 462, 2003 U.S. App. Lexis 9125 (8th Cir. 2003). {N/R}
Federal appeals court holds that an employer was
not required to arbitrate employee terminations because the bargaining
agreement between the parties had expired and there was no provision for
arbitration of disputes arising after the expiration. Dist. 1 Marine Engrs. v.
GFC, #02-12277, 331 F.3d 1287, 172 LRRM (BNA) 2609, 2003 U.S. App. Lexis 10939
(11 Cir. 2003). {N/R}
A badly split Wisconsin Supreme Court holds that
the decision to demote a person during the promotional probationary period is
not arbitrable, absent specific language in the contract. City of Madison v.
Wis. Empl. Rel. Cmsn., #99-0500, 2003 WI 52, 662 N.W.2d 318, 2003 Wisc. Lexis
419 (2003). [2003 FP Sep]
Arbitration Procedures Federal court enforces an
arbitration award requiring an employer to reinstate, with loss of six months
of back pay, a white employee who referred to a superior as a "fucking
nigger." Courts must not set aside arbitration awards in the absence of a
clearly violated public policy; the superior did not hear the remark and the
worker had a twelve-year record of good employment. GITS Mfg. v. Local 281,
#4:02cv40243, 2003 U.S. Dist. Lexis 7963, 172 LRRM (BNA) 2463, 91 FEP Cases
(BNA) 1286 (S.D.Iowa 2003). {N/R}
Court refuses to overturn an arbitration award
that rejected the punishment of an off-duty corrections officer that illegally
possessed TV cable decoders. Disparate penalties shown. Rhode Island Dept. of
Corrections v. Bro. of Correctional Officers (Algasso), #02-1793, 2002 R.I.
Super. Lexis 156 (Super. Ct. Providence 2002). [2003 FP Jul]
Arbitrator concludes he has the power, under
contractual grievance procedures, to interpret and implement a civil service
board remedy. Sheriff of Cook County and AFSCME L-3692, 117 LA (BNA) 1745
(Wolff, 2002). [2003 FP Jun]
Appellate court in New York affirms an
arbitration award that process servers in the sheriff's dept. must be provided
with firearms and training. [2003 FP May]
Arbitrator declines to enforce a clause requiring
the parties to submit a list of witnesses seven days before the hearing. Fed.
Bur. of Prisons and AFGE L-4051, FMCS Case #02/06738, 117 LA (BNA) 1723
(Oberdank, 2002). [2003 FP May]
New Jersey Supreme Court holds that when a party
fails to attend arbitration and a default award is entered, the absent party
still has a right to demand a hearing on the merits if the arbitrator fails to
notify him or her of the award. America's Pride Construction v. Farry, A-87,
811 A.2d 906, 2002 N.J. Lexis 1787 (N.J. 2002). {N/R}
Arbitrator exceeded his authority in reinstating
an employee who was fired for insubordination. The bargaining agreement gave
management the right to discharge, and the arbitrator had no discretion to
fashion remedy different from the parties' agreed-upon discipline. Poland
Spring Corp. v. UFCW, AFL-CIO L-1445, #02-1064, 314 F.3d 29, 171 LRRM (BNA)
2641, 2002 U.S. App. Lexis 26553 (1st Cir. 2002). {N/R}
Supreme Court holds that the question of whether
the parties have submitted a particular dispute to arbitration is an issue for
the courts to decide. Also, a disagreement about whether an arbitration clause
applies to a particular controversy is for the court. But all "procedural
questions which grow out of the dispute and bear on its final disposition are
presumptively not for the judge, but for an arbitrator, to decide." Howsam
v. Dean Witter Reynolds, #01-800, 2002 U.S. Lexis 9235 (2002). {N/R} N.Y. holds
that the calculation of retirement benefits earned under state law are
arbitrable. City of Johnstown and Johnstown PBA; City of Schenectady and
Schenectady PBA, #155/6, 2002 N.Y. Lexis 3801 (N.Y. 2002). {N/R}
Terms of the bargaining agreement evidenced an
intent and contractual obligation to arbitrate all disputes, and survive the
expiration of the agreement. The Providence Journal Co. v. Providence Newspaper
Guild, #01-2430, 308 F.3d 129, 171 LRRM (BNA) 2012, 2002 U.S. App. Lexis 21905
(1st Cir. 2002). {N/R}
A seven-justice N.Y. Court of Appeals reversed an
intermediate appellate decision that had overturned an arbitration award.
Although both employees were guilty of safety violations, there was no public
policy in New York which required public employers to terminate employees for
their conduct. The arbitration awards, imposing a lesser penalty, were
reinstated. NYCTA v. Transp. Workers Union, #106, 2002 N.Y. Lexis 2840, 2002
N.Y.Int. 0107 (N.Y., 2002). {N/R}
Michigan appellate court declines to overturn an
arbitration award that reinstated a corrections officer who had an expunged
arrest record for misdemeanor possession of marijuana in his home. Office of
State Employer v. UAW Local 6000, 2002 WL 31082148 (Unpub. Mich.App. 2002).
{N/R}
The American Arbitration Association's Labor
Arbitration Rules and the National Rules for the Resolution of Employment
Disputes were amended in 2002. See www.adr.org
{N/R}
Federal court in Philadelphia holds that the
arbitrator should decide whether a group of workers may pursue claims of race
discrimination in a class action, even if the bargaining agreement is silent on
the issue of class remedies. Brennan v. ACE INA Holdings, #00-2730, 2002 U.S.
Dist. Lexis 15039 (E.D. Pa. 2002). {N/R}
Alaska Supreme Court holds that the state's Labor
Relations Agency had the power to decide questions of arbitrability. Fairbanks
Fire Fighters Assn. L-1324 v. City of Fairbanks, #S-9715, 48 P.3d 1165, 2002
Alas. Lexis 77 (2002). {N/R}
Texas Supreme Court holds that at-will employees
are subject to binding arbitration for all employment disputes by continuing to
work after the employer notifies workers of an effective date. The court
rejected the argument that unsigned arbitration agreements are not enforceable.
Halliburton Co. and Brown & Root Energy Services, #00-1206, 45 Tex. Sup. J.
720, 80 S.W.3d 566, 2002 Tex. Lexis 70, 45 Tex. Sup. J. 720, 18 IER Cases (BNA)
1121 (Tex. 2002). {N/R}
Arbitrator refuses to allow a union to enlarge
the subject of the grievance submitted. "Any attempt by either party to
present a new issue, after the filing of the original grievance, is an
expansion of scope of the original complaint, and should be rejected in
arbitration." City of Bay City and FOP L-103, FMCS Case #01/09422, 117 LA
(BNA) 60 (Allen, 2002). {N/R}
Where the American Arbitration Association
deviated from the arbitrator selection process in the employment agreement, and
the employee did not timely object, the objection was waived and the award is
valid. Brook v. Peak Intern., #01-50339, 2002 U.S. App. Lexis 11627 (5th Cir.
2002). {N/R}
A party who objects to arbitration must wait
until the arbitrator concludes the dispute with a final opinion, before
challenging the arbitration process by judicial actions. Montgomery Co. v.
Montgomery Co. Educ. Assn., #1817 CD 2001, 797 A.2d 432, 2002 Pa. Commw. Lexis
275 (Pa. Cmwlth 2002). [N/R]
Arbitrator rules that a city did not violate the
bargaining agreement when it had to replace the dental coverage with a more
expensive policy, which required a worker co-payment. The contract was silent
on dental plan coverage. Oklahoma City and FOP L-123, FMCS #01/05071, 116 LA (BNA)
1502 (Moreland, 2002). [N/R}
California appeals court strikes down a law
allowing public safety unions to demand binding arbitration of economic issues.
County of Riverside v. Superior Court (Riverside Sheriff's Assn.), #E030454,
118 Cal.Rptr.2d 854, 2002 Cal. App. Lexis 4006 (4th Dist. App. 2002). [2002 FP
Jul]
Arbitrator rejects, as non arbitrable, a
grievance from a deputy sheriff who received an offensive letter from the chief
deputy. The mere fact that the preamble to the bargaining agreement recites as
a purpose the promotion of cooperation and harmonious relations does not make
every slight to a unit member the proper subject of an arbitration demand.
Clark Co. Sheriff and Frat. Order of Police, FMCS Case #01/10019, 116 LA (BNA)
1266 (Kindig, 2001). [2002 FP Jul]
A divided Seventh Circuit holds that an employee
was not compelled to arbitrate her Title VII claim against the employer
pursuant to a written agreement, because it required that each party pay its
own attorney fees. Title VII authorizes the award of attorney's fees to the
prevailing party. McCaskill v. SCI Mgmt. Corp., #00-2839, 285 F.3d 623, 88 FEP
Cases (BNA) 705, 2002 U.S. App. Lexis 6068 (7th Cir. 2002). [N/R]
Second Circuit enforces an arbitration award even
though the union breached the no-strike clause in the bargaining agreement.
Mulvaney Mechanical v. Sheet Metal Workers L-38, 2002 U.S. App. Lexis 7720 (2nd
Cir. 2002). [N/R]
U.S. Supreme Court declines to review a Massachusetts
Supreme Court decision upholding an arbitration award that reinstated a police
officer who used excessive force. Courts may not set aside an arbitrator's
award because judges disagree with the reasoning. If the arbitrator found the
use of force to be reasonable, then the award is not a violation of public
policy. City of Lynn v. Thompson, #SJC-08487, 435 Mass. 54, 754 N.E.2d 54
(Mass. 2001); cert. den., 122 S. Ct. 1071 (2002). [2002 FP Jun]
An employee who signs an arbitration agreement,
but does not approve subsequent modifications, is not bound by the revised
provisions. Brennan v. Bally, 153 F.Supp.2d 408, 2001 U.S. Dist Lexis 9882
(S.D.N.Y. 2002). [N/R]
Arbitration clause in the employment agreement
was enforceable under the Federal Arbitration Act even though it was not enforceable
under state law because it provided for arbitration elsewhere under the laws of
another state. Jensen v. Rice, 809 So. 2d 895, 2002 Fla.App. Lexis 2973 (Fla.
App. 2002). [N/R]
Arbitrator strictly enforces the time
requirements to demand arbitration. The fact that a grievance hearing might
prejudice a pending criminal case does not excuse compliance with the CBA's
time limitations. Union official's failure to file a formal arbitration demand
was not waived by his misunderstandings with the chief. City of Margate and
Fraternal Order of Police, FMCS #01/09602, 116 LA (BNA) 985 (Hoffman, 2001).
[2002 FP May]
Supreme Court holds that an agreement to
arbitrate all employment disputes does not preclude the EEOC from filing a
damage suit in behalf of the employee. EEOC v. Waffle House, #99-1823, 122
S.Ct. 754, 2002 U.S. Lexis 489 (2002). [N/R]
Ninth Circuit rules that if a union fails to
bring a lawsuit to compel the arbitration of a grievance, following an employer
refusal to process that grievance, the employee can bring a lawsuit directly
against the employer. Sidhu v. The Fletco Co., #00-15567, 279 F.3d 896, 2002
U.S. App. Lexis 1720 (9th Cir. 2002). [N/R]
If a bargaining agreement leaves the
determination of the arbitrability of a grievance to an arbitrator, the issue
of whether disciplinary action can be overturned by arbitration is not usually
a question for the courts, and doubt must be resolved in favor of arbitration.
Union Twp. v. Firefighers 1981A, #A.L.R.3D, 142 Ohio App.3d 542, 756 N.E.2d 204
2001 Ohio App. Lexis 1758. {N/R}
A grievance brought in behalf of a retired
firefighter must be denied, as a retiree is no longer covered by the bargaining
agreement. City of Watervliet and Watervliet Unif. Firefighters' Assn., N.Y.
P.E.R.B. #A-201-075, 116 LA (BNA) 238 (Babiskin, 2001). {N/R}
Federal appeals court strikes down an employment
agreement that required the arbitration of discrimination claims, because it
mandated that all costs were to be split between the employer and employee.
Perez v. Globe Airport Security, #00-13489, 253 F.3d 1280, 2001 U.S. App. Lexis
12394 86 FEP Cases (BNA) 613 (11th Cir.). [2001 FP 131]
Arbitrator places the burden of proof on the
employer in reimbursement claims for lost or stolen property issued to an
employee. Cook County (Adult Probation Dept.) and AFSCME L-3486, 115 LA (BNA)
1025 (Wolff, 2001). [2001 FP 115]
D.C. Circuit reaffirms the nationwide validity of
compulsory arbitration agreements that apply to employment discrimination cases
in all jurisdictions except the 9th Circuit. Borg-Warner Prot. Serv. v. EEOC,
#00-5094, 245 F.3d 831, 2001 U.S. App. Lexis 6726, 69 L.W. 1672, 85 FEP Cases
(BNA) 673 (D.C. Cir. 2001). [2001 FP 99]
Divided Supreme Court upholds a mandatory arbitration
clause in an employment application, requiring workers to waive litigation of
state and federal discrimination and other claims. Circuit City Stores v.
Adams, #99-1379, 532 U.S. 105, 121 S.Ct. 1302, 2001 U.S. Lexis 2459, 85 FEP
Cases (BNA) 266. [2001 FP 51-2]
10th Circuit holds that the parties to an
arbitration agreement cannot contractually expand the standards for judicial
review of arbitration awards, which are limited by the Federal Arbitration Act,
9 U.S. Code 11. Bowen v. Amoco Pipel., #00-7039, 254 F.3d 925, 2001 U.S. App.
Lexis 13867 (10th Cir. 2001). The 5th and 9th circuit have issued contrary
opinions: Gateway Tech. v. MCI, 64 F.3d 993 (5th Cir. 1995); Lapine Tech. v.
Kyocera, 130 F.3d 884 (9th Cir. 1997). {N/R}
An arbitrator may hear a case, even though only
the union requested list of arbitrators, then selected the arbitrator, and
requested a hearing. Federal Mediation and Conciliation Service rules do not
prohibit the selection of an arbitrator at request of only one party. City of
Warr Acres and L-2374 IAFF, 115 LA (BNA) 335 (Woolf, 2000). {N/R}
N.H. Supreme Court upholds a law providing for
automatic forfeiture of employment for a felony conviction. The fact the law
was passed while the criminal charges were still pending does not provide the
defense of ex post facto legislation. “A valid employment
requirement prescribed by state law cannot be negotiated and is not a proper
subject for arbitration.” West Warwick v. L-1104 IAFF, #98-453, 745 A.2d 786,
2000 R.I. Lexis 48, 164 LRRM (BNA) 2063. [2000 FP 115-6]
Employee's signature on materials and his failure
to opt out of a mandatory program was an enforceable employment contract.
Circuit City v. Ahmed, #98-55896, 195 F.3d 1131, 1999 U.S. App. Lexis 29974, 81
FEP Cases (BNA) 734 (9th Cir. 1999). {N/R}
Although a bargaining agreement provides that
sole remedy is the grievance procedure, where contract specifies that
particular issues are not grievable, there is no right to arbitration. Huron
Co. and Police Off. Lab. Council, #99-02, 114 LA (BNA) 487 (Sugerman, 2000).
{N/R}
Rhode Island Supreme Court rules that an
arbitrator exceeded his authority when he upheld a union grievance on overtime
entitlement that disregarded state law. State of Rhode Island v. SEIU Local
580, 165 LRRM (BNA) 2310 (R.I. 2000). {N/R}
A discharged state employee was not required to
arbitrate her FMLA discrimination claim; the union's contractual waiver of an
employee's statutory right to federal forum was not clear and unmistakable.
Rogers v. New York Univ., 220 F.3d 73, 2000 U.S. App. Lexis 17370, 164 LRRM.
2854, 6 WH Cases2d (BNA) 375 (S.D.N.Y. 2000). {N/R}
A 75-day deadline for filing grievances in the
firefighters' contract did not fall within the "terms and conditions"
clause providing for arbitration. IAFF L-1710 v. City of Chicopee, 30 Mass.
417, 721 N.E.2d 378, 1999 Mass. Lexis 688, 164 LRRM (BNA) 2159 (Mass. 1999).
{N/R}
Mere fact a bargaining agreement contains a no
discrimination clause and provides for arbitration of grievances, did not
preclude an employee from pursuing judicial remedies, absent a clearly-worded
waiver of statutory rights. Bratten v. SSI Services, 185 F.3d 625 (6th Cir.
1999). {N/R}
Illinois appellate court allows officers to seek
arbitration of their disciplinary actions, even though a local law requires the
Fire & Police Board to hear the charges. IL FOP Labor Council v. Town of
Cicero, #1-97-3376 (1st Dist.), 301 Ill.App.3d 323, 703 N.E.2d 559, 1998
Ill.App. Lexis 787, 160 LRRM (BNA) 2558. [1999 FP 19]
California Supreme Court holds that the
representation of a party at an arbitration hearing is "practicing
law" and non lawyers can be prosecuted. Birbrower v. Super. Ct. (ESQ Bus.
Serv.), 17 Cal.4th 119, 949 P.2d 1, 1998 Cal. Lexis 2, 70 Cal.Rptr. 2d 304.
[1998 FP 164]
Federal Mediation and Conciliation Service issues
final rules for arbitration services. 29 C.F.R. Part 1404, 35 (1721) G.E.R.R.
(BNA) 880-885 (Eff. 9/97). {N/R}
National Academy of Arbitrators opposes mandatory
arbitration of statutory rights in employment cases, but also issues guidelines
for arbitrators hearing those disputes. Statement and guidelines on arbitration
of statutory claims, I/Net site: www/naarb.org/ [1997 FP 147]
Agreement in job application was unenforceable
for lack of valid consideration. Employer gave nothing in return. Brooks v.
Circuit City, 1996 U.S. Dist. Lexis 9869, 71 FEP Cases 102 (D.Md. 1997). {N/R}
Clause in collective bargaining agmt. expressly
applying to federal statutory discrimination claims which could be invoked by
union an employee was enforceable against the employee. Martin v. Dana Corp.,
114 F.3d 421 (3rd Cir. 1997). {N/R}
The 9th Circuit federal appeals court rejects
employer's claim that a mandatory arbitration provision in an employee's
handbook can waive a worker's statutory rights. Nelson v. Cyprus, 1997 U.S.App.
Lexis 17066, 119 F.3d 756 (9th Cir.). [1997 FP 137-8]
The 8th Circuit enforces a mandatory arbitration
provision because the employee signed an arbitration clause on the last page of
the handbook. Patterson v. Tenet, 113 F.3d 832 (8th Cir. 1997). [1997 FP 137-8]
Agreement to arbitrate FMLA claims is valid and
enforceable. O'Neil v. Hilton Head Hosp., 12 IER Cases (4th Cir. 1997). {N/R}
Ninth Circuit holds that 11th Amendment immunity
of states does not bar the enforcement of an employment-related arbitration
award against a state agency. Premo v. Martin, 119 F.3d 764, 1997 U.S.App.
Lexis 17359 (9th Cir.). {N/R}
Federal court upholds employment application
forms, when signed by minors, agreeing to arbitrate any employment rights
disputes. Sheller v. Frank's Nursery, 957 F.Supp. 150 (N.D.Ill. 1997). [1997 FP
99-100]
Federal court upholds handwritten, contractually
deficient grievance. Employer had sufficient notice of the claim, and
"high standards of draftsmanship" are not required of employees.
McKesson v. IBT L-730, 199 U.S. Dist. Lexis 2663, 957 F.Supp. 1 (D.D.C.). [1997
FP 83]
Federal appeals court allows employee to sue his
employer for breach of contract, following an unfavorable arbitration award.
Bargaining agreement failed to state that grievance arbitrations are
"final, binding or exclusive." Orlando v. Interstate Container Corp.,
100 F.3d 296, 1996 U.S.App. Lexis 29001, 153 LRRM (BNA) 2737 (3rd Cir.). [1997
FP 19]
Illinois Supreme Court refuses to enforce an
arbitration award that ordered the reinstatement of a case investigator who had
filed a false incident report. Reinstatement would be contrary to public policy.
AFSCME v. Dept. Central Mgmt. Serv., 173 Ill.2d 299, 1996 Ill. Lexis 91, 671
N.E.2d 668. [1997 FP 19-20]
Pennsylvania county commissioners could not
consent to a disciplinary arbitration clause in the contract with the
correctional officers' union, because a state statute vested power to hire and
fire officers in the county's prison board. Fayette Co. v. AFSCME C-84, 1996
Pa.Commw. Lexis 331, 153 LRRM (BNA) 2370. [1997 FP 20]
Badly divided appellate court affirms an
arbitration decision; new evidence cannot be used to judicially attack an
award. Arbitration between Obot and Dept. of Corr. Serv., 637 N.Y.S.2d 544
(A.D. 1996). [1996 FP 147]
Federal appellate court enforces arbitration
clause in employment agreement for her sexual harassment claim under Title VII.
Rojas v. TK Communications, 71 FEP Cases (BNA) 664 (5th Cir. 1996). {N/R}
American Arbitration Association adopts revised
procedural rules for mediation and arbitration of employment disputes to
enlarge due process rights of employees. See 103 LA (BNA) 21-19 (Nondecisional
material) or download rules at: www.adr.org/ [1996 FP 115]
1986 contract clause requiring arbitration of
"any claim or controversy" did not waive the rights of employees to
sue for federal handicap discrimination or FML violations. Hoffman v. Aaron
Kamhi Inc., 927 F.Supp. 640, 1996 U.S. Dist. Lexis 3600, 5 AD Cases (BNA) 707,
3 WH Cases2d (BNA) 445 (S.D.N.Y.). [1996 FP 115]
Divided federal appeals court bars an employee
from bringing a discrimination suit against her employer for ADA and Title VII
violations. Arbitration clause in the CBA prevails. Austin v. Owens-Brockway,
78 F.3d 875, 1996 U.S. App. Lexis 4370, 70 FEP Cases (BNA) 272 (4th Cir. 1996);
cert. den. 519 U.S. 980, 117 S. Ct. 432, 1996 U.S. Lexis 6861. [1996 FP 99-100]
Pennsylvania appeals court upholds an
arbitrator's decision to increase the penalty to termination. Penna. St. Trprs.
Assn. v. Penna. St. Police, 667 A.2d 38 (Pa.Cmwlth. 1995). [1996 FP 67]
Federal court allows employee to sue employer for
damages in a civil rights suit, even though the bargaining agreement provides
for arbitration of disciplinary actions. Tang v. Rhode Island, 904 F.Supp. 69,
69 FEP Cases (BNA) 577 (D.R.I. 1995). [1996 FP 51]
Pennsylvania federal court holds that an
employee's damage suit against his employer was preempted by a national labor
relations law. Furillo v. Dana Corp., 866 F.Supp. 842 (E.D.Pa. 1994). [1996 FP
51]
Wisconsin Supreme Court concludes that sheriffs
are bound by arbitration awards and civil service decrees; they must redeputize
and fully reinstate terminated deputies if so ordered. Brown Co. Sheriff's
Dept. v. BCSD Employees’ Assn., 533 N.W.2d 766 (Wis. 1995). [1996 FP 35]
State supreme court upholds a county personnel
commission order to reinstate a deputy sheriff. The “unbridled power” to
appoint deputies “threatens the quality of law enforcement” and “will
discourage qualified candidates from seeking the position of deputy sheriff.”
Heitkemper v. Wirsing, 533 N.W.2d 770 (Wis. 1995). [1996 FP 35]
Alaska rejects all damage suits by an employee
against arbitrator; full judicial immunity extended to arbitration proceedings.
Feichtinger v. Conant, 893 P.2d 1266 (Alaska 1995). [1996 FP 19]
Colo. supreme court voided a mandatory
arbitration clause the employer raised to defend a suit for compensation
allegedly owed a sales rep. A statute allowed employees to sue for wages and
earnings; a statutory remedy may not be supplanted by arbitration clauses in
employment agreements, including the Uniform Arbitration Act. Lambin v. Dist.
Ct. 18th Dist., 2 WH Cases (BNA) 1647, 64 LW 2352. {N/R}
“An arbitration award will not be vacated when
the arbitrator explains his decision in terms that offer even a barely colorable
justification for the outcome reached, even if the arbitrator's interpretation
of the contract is clearly erroneous.” Great Atlantic v. Local 338, 1996 U.S.
Dist. Lexis 7207/*3 (S.D.N.Y.), quoting Meyers v. Parex, 689 F.2d 17/18 (2d
Cir. 1982). {N/R}
Appeals court upholds termination of employee who
was denied legal representation at the disciplinary hearing before an
arbitrator. Panel concludes that a terminated employee is not entitled to have
his own attorney present at the grievance arbitration hearing. No evidence
absence of counsel would have made a difference. Garcia v. Zenith Electronics,
58 F.3d 1171 (7th Cir. 1995). [1995 FP 174]
Federal agency had a duty to bargain with the
union before abandoning a practice of allowing its police officers to wear
their firearms when commuting to and from work. G.S.A. Federal Protective
Service Div. and AFGE L-1733, 50 FLRA No. 90, 33 (1629) G.E.R.R. (BNA) 1102
(1995). [1995 FP 169]
Arbitrator was not bound by the technical rules
of evidence and a court will not set aside an award because inmates were
allowed to testify the accused corrections officer had engaged in similar
conduct dating earlier than the 12-month period of limitations for charging
employee misconduct, even though such testimony would be inadmissible in court.
St. Lawrence Co. Dep. Sheriffs L-2390 and Co. of St. Lawrence, 213 A.D.2d 875;
623 N.Y.S.2d 661, 1995 N.Y.App.Div. Lexis 2837 {N/R}
Officer could not seek arbitration of his
termination because the bargaining agreement did not unequivocally create that
right. Stilling v. Franklin Twp., 97 Ohio App.3d 504, 646 N.E.2d 1884 (1994).
[1995 FP 147]
Federal appeals court vacates $1000 penalty
imposed on employer by arbitrator. Island Creek C.C. v. Dist. 29 U.M.W., 29
F.3d 126 (4th Cir. 1994). [1995 FP 147]
Eighth Circuit reinstates a $31,800 punitive
award because the Fed. Arbitration Act (9 U.S. Code §9) prevents courts from
vacating awards in the absence of corruption, fraud, undue means or partiality.
Also, rule 43 of the American Arbitration Assn. specifically allows arbitrators
to award "any remedy or relief that the arbitrator deems just and
equitable" including punitive damages. Many bargaining agreements provide
that the rules and procedures adopted by the AAA will apply. Lee v. Chica, 983
F.2d 883 (8th Cir. 1993), cert.den. 114 S.Ct. 287. {N/R}
Arbitrator declines to interpret OSHA
regulations; grievance denied. Dyno Nobel and O.C.&A.W. Local 5-713, 104 LA
(BNA) 376 (Hilgert, 1995). {N/R}
Pa. Supreme Court limits the scope of courts that
review arbitration awards, based on a state statute. Interpretation makes it
difficult for fire and police chiefs to bring unbecoming conduct charges. Pa.
St. Police v. Pa. St. Troopers (Betancourt), 656 A.2d 83, 1995 Pa. Lexis 199
(reversing 633 A.2d 1278 (Pa.Cmwlth. 1993). [1995 FP 115-6]
Federal appeals court strikes down a collective
bargaining provision that awarded attorneys' fees to the prevailing party.
Moore v. L-569 IBEW, 53 F.3d 1002 (9th Cir. 1995). [1995 FP 116-7]
In reviewing a reinstatement agreement allowing
discharge without recourse, an arbitrator would still have jurisdiction to
verify that the employee had, in fact, violated work rules, but could not
reduce the punishment. Gencorp Auto. and United R.C.L.&P. Workers L-626,
104 LA (BNA) 113 (Malin, 1995). [1995 FP 100-1]
U.S. Supreme Court decides that courts must
determine whether a dispute is arbitrable, unless that in the arbitration
agreement the parties have agreed to submit that question to arbitration.
Courts should apply ordinary principles of law. First Options v. MK
Investments, 115 S.Ct. 1920 (1995). {N/R}
Federal appeals court finds it was improper for
an employer to offer reinstatement to a terminated employee on condition he
waive his rights to contest future disciplinary action. Retlaw v. N.L.R.B., 53
F.3d 1002 (9th Cir. 1995). [1995 FP 100]
Supreme Court allows arbitrators to award
punitive damages, even if state law provides only courts may do so. Mastrobuono
v. Shearson L-H Inc., 115 S.Ct. 1212 (1995). [1995 FP 84-5]
NY rules that state and federal courts lack power
to compel expedited arbitration. Salvano v. Merrill Lynch, 647 N.E.2d 1298, 10
IER Cases (BNA) 524 (N.Y. 1995). {N/R}
Arbitrator ordered the reinstatement of an errant
officer because he was not provided a pretermination hearing. The arbitrator
then ruled the department cannot cure the procedural defect by holding a
hearing and discharging the officer a second time. Benton Harbor (City of) and
FOP Lts. & Sgts. Assn., 103 LA (BNA) 816 (Allen, 1994). [1995 FP 67]
Federal appeals court concludes that an
arbitration clause survives beyond the contract expiration date, absent conduct
or contract language to the contrary. Luden's v. Local 6, 28 F.3d 347 (3rd Cir.
1994); reh. en banc denied. [1995 FP 68]
Divided Pennsylvania appellate court holds that
arbitrators have no power to reduce disciplinary punishment unless so empowered
in the bargaining agreement. Penn. St. Police v. F.O.P., 634 A.2d 270
(Pa.Cmwlth. 1993). [1995 FP 20]
Federal court concludes that an ADA claim is
barred because plaintiff failed to submit to the arbitration procedures
required under the coll. brg. agmt., Austin v. Owens-Brockway Glass Cont. Inc.,
844 F.Supp. 1103 (W.D.Va. 1994). Result questioned by another federal court in
Block v. Art Iron Inc., 3 AD Cases (BNA) 1361 (N.D.Ind. 1994), in Schmidt v.
Safeway, 3 AD Cases (BNA) 1141 (D.Ore. 1994) and Bruton v. SEPTA, 3 AD Cases
1170 (W.D. Pa. 1994). {N/R}
Appellate court overturns arbitration award that
set aside officer's termination because the city waited for more than a year
before initiating disciplinary charges. Philadelphia (City of) v. F.O.P. Lodge
5, 633 A.2d 1321 (Pa. Cmwlth. 1993). [1994 FP 163]
Article discussing arbitration of EEO and
employment law claims: See 10 (4) The Labor Lawyer (ABA) 667 at 675 (Fall
1994).
Discharged police officer could contest his
termination through arbitration even though the contract had expired and a
competing union was later certified. Mangonia, Town of and Palm Beach P.B.A.,
102 LA (BNA) 37 (1993). [1994 FP 131]
Montana Supreme Court rules an employee may
pursue a civil rights suit for wrongful discharge even if an arbitrator has
upheld his termination. Miller v. Co. of Glacier, 851 P.2d 401 (Mont. 1993).
[1994 FP 84]
Appellate court in Wisconsin holds that a
requirement in the bargaining agreement that an employee complete the
arbitration process before obtaining judicial review is lawful and does not violate
due process. Wallace v. Daguanno, 499 N.W. 264 (Wis.App. 1993). [1994 FP 84]
N.M. Supreme Court upholds arbitration award
which reinstated a police officer who repeatedly had sex with a 17-year old.
Silver City (Town of) v. Garcia, 857 P.2d 28 (N.M. 1993). [1994 FP 19]
Appellate court upholds clause in bargaining
agreement that allows termination without appeal for being AWOL. Guilford v.
City of Buffalo, 577 N.Y.S.2d 1017 (A.D. 1991). [1993 FP 3]
Article: "Directing the flood: the arbitration
of employment claims," 10 (2) The Labor Lawyer (ABA) 217-238 (Winter
1994).
U.S. Supreme court upholds arbitrability of
statutory employment discrimination claims (under the A.D.E.A.); employee
waives right to sue in court. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.
20, 111 S.Ct. 1647 (1991). {N/R} Note: H.R. 4981 and S. 2405, introduced in
1994 as the Civil Rights Protection Act would have reversed the Gilmer decision
in ADEA, Title VII, Rehab. Act, ADA and F&MLA cases; it was not enacted.
Alaska Supreme Court upholds the
constitutionality of binding interest arbitration. Anchorage v. Anchorage
Police Empl. Assn., 839 P.2d 1080 (Alaska 1992). [1993 FP 83]
"The arbitrator is a creature of contract
selected by the parties to interpret and apply the terms and provisions that
they have negotiated and agreed to. It is not within the authority of the
arbitrator to substitute his own concepts of fairness or justice for those that
the parties have established." Univ. of Mich. and Mich. Assn. of Police,
103 LA (BNA) 401, 403. (Daniel, 1994). {N/R}
Florida appeals court rules that public employees
may not contest disciplinary action via grievance and arbitration, absent a
specific provision in the contract allowing such resolution. City of Opa-Locka
v. Dade Co. P.B.A., 610 So.2d 518 (Fla.App. 1992). [1993 FP 115]
Arbitrator properly imposed a two-year term on a
disputed contract although neither party sought it. Board of Supervisors v.
Butler Twp. Police, 621 A.2d 1061 (Pa.Cmwlth. 1993). [1993 FP 163]
A grievance may not be submitted to arbitration
where the contract specifically provides an alternative remedy. Council Bluffs
Firefighters v. City of Council Bluffs, 497 N.W.2d 175 (Iowa 1992). [1993 FP
163]
Appellate court upholds clause in bargaining
agreement that allows termination without appeal for being AWOL. Guilford v.
City of Buffalo, 577 N.Y.S.2d 1017 (A.D. 1991). [1993 FP 3]
"Public policy considerations and the
prevailing trend in other jurisdictions persuade [the Nevada Supreme Court] to
apply the doctrine of collateral estoppel to arbitration." The second
arbitrator "was bound by the prior contract interpretation" by the
first arbitrator. IAFF L-1285 v. Las Vegas, 107 Nev. 906, 823 P.2d 877, 1991
Nev. Lexis 194. {N/R}
Arbitrator could lawfully order reinstatement
under the CBA power to modify any punishment imposed, but could not order
prospective relief, requiring the employer to accommodate his religious beliefs
by allowing him to take leave on Fridays. N.Y. Dept. of Corr. Svc. v. C-82
AFSCME, 575 N.Y.S.2d 175, 1991 N.Y.App.Div. Lexis 13060. {N/R}
Contract clause prohibiting mandatory overtime
for correctional officers was unlawful and adversely impacted public safety.
Vose v. R.I. Bro. of Corr. Ofcrs., 587 A.2d 913 (R.I. 1991). [1992 FP 35]
Arbitrator, not court, should decide whether a
dispute is arbitrable where the scope of arbitration was reasonably debatable.
Duluth Police Local v. City of Duluth, 466 N.W.2d 36 (Minn.App. 1991). [1992 FP
35]
Arbitrator could not reinstate an officer because
of due process violations, absent authority to do so in the employment
contract. Philadelphia v. F.O.P. Lodge 5, 592 A.2d 779 (Pa. Cmwlth. 1991).
[1992 FP 115]
Pennsylvania holds that civil service code is not
the exclusive method of processing disciplinary hearings; discharged employees
can use grievance mechanism leading to binding arbitration. Henshey v. Twp. of
Lower Merion, 588 A.2d 83 (Pa.Cmwlth. 1991). See however, Milwaukee Police Assn.
v. City of Milwaukee, 335 N.W.2d 417 (Wis.App. 1983). [1992 FP 67]
Police Dept. may not force an employee to have
disciplinary trial heard by the civil service commission when the collectively
bargained agreement allows arbitration of disciplinary grievances. Bindell v.
City of Harvey, 571 N.E.2d 1017 (Ill.App. 1991). [1992 FP 147]
A party to an arbitration hearing waives the
right to a verbatim record if no objection is raised to the absence of a tape
recorder. Polk Co. Deputy Sheriffs Ass'n v Polk Co., 104 Or. App. 738, 802 P.2d
1301 (1990).
City required to arbitrate a grievance which
arose when the bargaining contract was in effect, even though the contract has
expired. Bor. of Philipsburg v. Bloom, 554 A.2d 166 (Pa. Cmwlth. 1989).
Absent a contract provision to the contrary, an
employer may combine two different offenses committed by the same employee to
obtain a second level of punishment in the progressive discipline schedule.
Wilbur Chocolate Co. v. BC&TWU L-464, 1988 U.S.Dist. Lexis 2896 (E.D.Pa.).
{N/R}
City could not require firefighter to waive a
right to a hearing and drop his back pay claim if he is reinstated. Intern.
Assn. of Fire Fighters, Local 1285 v. City of Las Vegas, 764 P.2d 478 (Nev.
1988).
Acquittal of a police officer in a criminal
prosecution did not bar his termination for conduct unbecoming. Res Judicata
and Collateral Estoppel doctrines do not apply. However, "... a
determination of innocence in the criminal forum does increase the employer's
burden of persuasion that discharge is warranted." Muskegon Heights Police
Dept. and Teamsters L-214, 88 LA (BNA) 675 (Girolamo, 1987). {N/R}
Individual employee has standing to compel
arbitration of his demotion unless contract withholds that right. Paranko v.
St. of Conn., 200 Conn. 51, 509 A.2d 508 (1986).
Supreme Court warns that “by agreeing to
arbitrate a statutory claim, a party does not forgo the substantive rights
afforded by the statute.” Rather, the agreement only submits the dispute to an
arbitral, rather than a judicial, forum. Mitsubishi Motors v. Soler, 473 U.S.
614 /at 628 (1985). {N/R}
Arbitrator could reduce termination punishment to
suspension; could not order department to restore law enforcement powers.
Monroe Co. Sheriff v. FOP L-113, 357 N.W.2d 744 (Mich. App. 1984).
City may not avoid arbitration by alleging union
breached agreement and arbitration clause was voided. Fraternal Order of Police
L-108 v. Village of Washington Park, 462 N.E.2d 855 (Ill.App. 1984).
Firefighter arbitration initiative violated state
law; home rule provision not applicable. West Palm Beach F/F L-727 v. Board of
Cmsnrs., 448 So.2d 1212 (Fla. App. 1984).
Employees who lose a grievance arbitration may
still file a civil rights suit for damages and lost pay. McDonald v. City of
West Branch, Mich. 104 S.Ct. 1799 (1984).
Arbitration of grievance clauses cannot deprive
civil service authority of jurisdiction in termination cases. Milwaukee Police
Ass'n v. City of Milwaukee, 335 N.W.2d 417 (Wis. App. 1983).
Missouri appeals court upholds legality of
mandatory grievance arbitration; firefighter entitled to challenge promotional
scheme. Roberts v. City of St. Joseph, 637 S.W.2d 98 (Mo.App. 1982).
City could not avoid state arbitration law with
local home rule ordinance relating to firefighter bargaining. City of Roseburg
v. Roseburg City Firefighters L-1489, 622 P.2d 755 (Ore. App. 1981).
Kentucky rules arbitration is unlawful unless
expressly authorized by statute; ordinance unenforceable. City of Covington v.
Covington Lodge FOP, 622 S.W.2d 221 (Ky. 1981).
Firefighters must elect to pursue remedies under
either civil service or arbitration; Illinois rejects double-barreling. Sefren
v. Board of Trustees, Addison Fire Prot. Dist., 377 N.E.2d 341 (Ill.App. 1978).
Texas arbitration act struck down;
unconstitutional delegation of discretionary powers to judicial branch. Intern.
Assn. of Firefighters Local 2390 v. City of Kingsville, 568 S.W.2d 391 (Tex.
Civ. App. 1978).
Court can remove partial arbitrator. Freeport
Construction Co. v. Star Forge, Inc., 378 N.E.2d 558 (Ill.App. 1978).
Utah Supreme Court invalidates mandatory and
binding arbitration; unlawful delegation of legislative powers cited. Salt Lake
City v. IAFF, 563 P.2d 786 (Utah 1977).
Pension changes upheld. City of East Providence
v. Local 850, Intern. Assn. of Fire Fighters, 366 A.2d 1151 (R.I. 1976).
Existence of grievance arbitration mechanism
should not delay hearing of unfair labor practice charge; deferral improper.
Detroit Fire Fighters Assn. L-344 IAFF v. City of Detroit, 293 N.W.2d 278
(Mich. 1980).
Arbitration clause providing for final
determination of grievances is enforceable; rights of parties to sue is cut
off. Voss v. City of Okla. City, 618 P.2d 925 (Okla. 1980).
Minnesota Supreme Court upholds public employment
arbitration law. City of Richfield v. Local 1215, Int. Assn. of Fire Fighters,
276 N.W.2d 42 (Minn. 1979).
Police and fire arbitration laws upheld in Michigan
and Oregon; not a violation of home rule provision. Medford Firefighters’ Assn.
v. City of Medford, 595 P.2d 1268 (Ore. App. 1979); City of Detroit v. Detroit
Police Officers’ Assn., 1979-80 PBC ¶ 36,959, 294 N.W.2d 68 (Mich. 1980). FP
#3427C.
Collectively bargained agreement on binding
arbitration of disputes involving suspensions or promotions held unenforceable.
Taylor v. Crane, 140 Cal.Rptr. 468 (App. 1977).
The role of a reviewing court is limited in
arbitration disputes. Lansing Fire Fighters Assn. L-21 v. City of Lansing, 282
N.W.2d 346 (Mich. App. 1977).
A dispute about a police officer's eligibility
for disability benefits under a pension plan was not arbitrable under the
contract, where the plans were not a part of the agreement and were not
incorporated by reference. Policemen's & Firemen's Retir. Bd. of New Haven
v. Sullivan, 68 LA (BNA) 771 (Conn. 1977). {N/R}
Effect of absence of "past practices"
clause. Milwaukee Professional Firefighters Local 215 IAFF v. City of Milwaukee,
253 N.W.2d 481 (Wisc. 1977).
Constitutionality of grievance arbitration upheld
in Pennsylvania. Appeal of City of Bethlehem v. L-735, IAFF, 367 A.2d 409 (Pa.
Cmwlth. 1976).
Two Michigan Supreme Court justices uphold
arbitration law, two vote to strike it down; three justices absent. Dearborn
Fire Fighters Union L-412, IAFF v. City of Dearborn, 231 N.W.2d 226 (Mich.
1975).
South Dakota supreme court strikes down
firefighters arbitration law as unconstitutional delegation of legislative powers.
City of Sioux Falls v. Sioux Falls Fire Fighters, 234 N.W.2d 35 (S.D. 1975).
New York high court reverses lower opinion;
upholds constitutionality of mandatory arbitration. City of Amsterdam v. Helsby
and City of Buffalo v. New York State Employment Relations Board, 37 N.Y.S.2d
19, 371 N.Y.S.2d 404, 332 N.E.2d 290 (1975) (reversing 362 N.Y.S.2d 968 and
affirming 363 N.Y.S.2d 896).
Pension plan formula determined grievable and
arbitrable. Controversy was properly before the public employee relations
commission. Mt. Clemens Firefighters Local 838 v. Mt. Clemens, 228 N.W. 2 500
(Mich. App. 1975).
Constitutionality of arbitration discussed. City
of Spokane v. Spokane Guild Local 29, #222442, Sup'r Ct. (Spokane Co. Wash.
1975); Antinore v. St. of N.Y., 371 N.Y.S.2d 213 (A.D. 1975).
Scope of Judicial Review. Albany Perm. Prof.
Firefighters Assn. v. Corning, 376 N.Y.S.2d 796 (Misc. 1975).
Collusion; conflict of interest. Union L-1296,
IAFF v. City of Kennewick, 542 P.2d 1252 (Wash. Dec. 1975).
Corruption vitiates award. Teamsters L-11 v.
Abad, 343 A.2d 804 (N.J. Sup'r 1975).
Arbitrability of Pensions. City of Lansing and
Lansing Firefighters Assn., L-421 IAFF, (Bodwin, 1975); Mt. Clemens
Firefighters Union, L-838 IAFF v. City of Mt. Clemens, 58 Mich. App. 635
(1975).
An employee's right to litigate Title VII
discrimination claims cannot be waived in a collective bargaining agreement.
Alexander v. Gardner-Denver Co, 415 U.S. 36, 94 S.Ct. 1011 (1974).
A state Employment Commission finding that an
employee was discharged for cause (and should be deprived of four weeks of
unemployment benefits) was not binding on an arbitrator who would determine the
merits of the employee's discharge. Fawn Engineering Corp. and Automobile Workers
L-270, 63 LA (BNA) 1307 (Fitch, 1974). {N/R}
Contract interpretation: An "arbitrator is
confined to interpretation and application of the collective bargaining
agreement; he does not sit to dispense his own brand of industrial
justice." While an arbitrator may “look for guidance from many sources...
his award is legitimate only so long as it draws its essence from the
collective bargaining agreement.” United Steelworkers v. Enterprise Wheel, 363
U.S. 593/at 597, 80 S.Ct. 1358/at 1361 (1960). {N/R}
See also: Alternative Dispute Resolution and Access to Courts, Arbitration Punishment Awards – Right of Courts to Interfere, Collective Bargaining, Disciplinary Procedures and Impasse Arbitration.