« Arbitration Law Memo - May 2009
Arbitration Law Memo June 2009
by Ross Runkel at LawMemo
| Arbitration Law Memo - June 2009 LawMemo First in Employment Law Arbitrator biographies and awards: National Arbitration Center |
|
***
Arbitration - Individual Arbitration Agreements *** ***
Arbitration - Collective Bargaining Agreements ***
*** Arbitration - Individual Arbitration Agreements ***US - Supreme Court will decide whether FAA permits arbitrators to impose class arbitration on parties whose arbitration clauses are silent on that issue.Stolt-Nielsen S.A. v. AnimalFeeds
International (certiorari granted 06/15/2009) [Not an employment case] The parties in this case are parties to international maritime contracts that contain arbitration clauses. The contracts are silent as to whether arbitration is permissible on behalf of a class of contracting parties. A panel of arbitrators, tasked with deciding whether that silence permitted or precluded class arbitration, received evidence and briefing from both sides. The arbitrators issued an award deciding that the contracts permit class arbitration. Stolt-Nielsen petitioned the United States District Court to vacate the award. That court did vacate the award on the ground that the award was made in manifest disregard of the law. The 2nd Circuit reversed, and applied the rule that courts vacate arbitration awards in the rare instances in which "the arbitrator knew of the relevant [legal] principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless willfully flouted the governing law by refusing to apply it." Using this principle, the court found that the arbitration panel did not manifestly disregard a rule of federal maritime law, and did not manifestly disregard New York State law. The US Supreme Court granted certiorari on June 15 to review the 2nd Circuit judgment. CA - Wage claim required to be arbitrated.Sonic-Calabasas
v. Moreno (California Ct App 05/29/2009) Moreno filed an administrative wage claim against the employer. The employer petitioned the trial court to dismiss the administrative proceeding and compel arbitration. The trial court denied the petition. The California Court of Appeal reversed. The court faced the following issues: (1) whether Preston v. Ferrer, 128 SCt 978 (2008), compelled the conclusion that the Labor Commissioner's jurisdiction over Moreno's statutory wage claim was divested by the Federal Arbitration Act (FAA), and, if not, (2) whether Moreno contractually waived the statutory right to pursue his wage claim in an administrative forum, and, if so, (3) whether the waiver was unenforceable for public policy reasons under Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal4th 83 (2000) or Gentry v. Superior Court, 42 Cal4th 443 (2007). (1) Preston held that "when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA." The court found that the parties disagreed whether it would be unconscionable under Armendariz or Gentry to restrict the arbitration clause by invalidating Moreno's right to pursue an administrative wage claim (Berman waiver). (2) According to the arbitration agreement, Moreno could pursue only those administrative remedies that were listed as exceptions to the agreement, and the court found that neither the Division of Labor Standards Enforcement nor the Labor Commissioner was listed among the stated exceptions. The court concluded that Moreno was barred from pursuing an administrative wage claim (Berman waiver). (3) The court found that there was nothing in the record to indicate enforcing a Berman waiver will significantly impair Moreno's ability to vindicate his statutory rights. The court concluded that Moreno failed to demonstrate either the inadequacy of arbitral forum provided by his arbitration agreement or the existence of a factual basis to invalidate all Berman waivers as against public policy. *** Arbitration - Collective Bargaining Agreements ***4th – Grievances were arbitrable pursuant to provisions of expired CBA.United Steel Union v. Continental
Tire (4th Cir 06/09/2009) The union sued the employer under Section 301 of the Labor Management Relations Act (LMRA), seeking to compel grievance arbitration of a dispute over pension and health insurance benefits. The trial court granted summary judgment in favor of the union. The 4th Circuit affirmed, concluding that 1) the suit was timely filed; and 2) the grievances were arbitrable under the applicable collective bargaining agreement , even though that agreement had expired before the grievances were filed. MA - Settlement agreement established discrimination in grievance hearing.MBTA v. Boston Carmen's Union (Massachusetts 06/04/2009) http://www.lawmemo.com/docs/ma/mbta.htm The union moved to confirm two arbitration awards finding the employer violated the collective bargaining agreement (CBA) by remedying perceived illegal discrimination. The trial court confirmed the awards. The Massachusetts Supreme Judicial Court affirmed in part and reversed in part. (1) The employer refused to allow the prospective employee to wear hearing aids to pass the physical examination. The employee complained to the Massachusetts Commission Against Discrimination (MCAD), which resulted in a settlement agreement and employment. The union grieved for the employee who lost the posted vacancy. The arbitrator's award upheld the grievance. The court reversed, finding the settlement agreement, in these circumstances, sufficed to reliably and substantially establish a violation of the law proscribing discrimination that the arbitrator could not ignore without violating public policy. (2) The employer decided to implement a new list of "spare inspectors" without bargaining, motivated by concern that the old list discriminated against minorities. The arbitrator concluded the employer violated the CBA. The court affirmed because the employer did not convince the arbitrator that it discriminated against minorities in constructing the old list and no employee came forward with a claim of discrimination. WI –Staffing decision did not fall within the scope of sheriff’s constitutionally protected powers.Washington County v. Washington
County Dep Sheriffs (Wisconsin Ct App 06/16/2009) The deputy sheriff’s union appealed the trial court’s order determining that the union’s grievance was not subject to arbitration. The dispute arose from the sheriff’s decision to staff a court security screening station with non-bargaining unit “special deputies.” The court reversed, concluding that the staffing decision did not fall within the scope of the sheriff’s constitutionally protected powers. The court reasoned that “staffing [an] x-ray and metal detector security screening station is not one of those ‘certain immemorial principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff and that characterize and distinguish the office.’” WI – Arbitrator’s interpretation of CBA didn’t constitute a “perverse misconstruction.”Baldwin-Woodville Sch Dist v. West
Central Ed Assoc (Wisconsin 06/17/2009) A public school teacher was awarded backpay as the result of grievance arbitration. The employer's position was that the grievance was not filed in a timely manner. The award was confirmed by the trial court, but vacated by the appellate court below. The court reversed, reinstating the award. The court concluded that “the arbitrator’s construction of the [collective bargaining] agreement had a foundation in reason” and “was not a perverse misconstruction” of the agreement. Dist - Backpay award to DD employees was subject to setoff to allow for interim earnings.Fraternal Order of Police v. DC PERB
(District of Columbia (06/11/2009) Police officers were awarded backpay as the result of grievance arbitration. The District of Columbia Public Employee Relations Board (PERB) modified the backpay award to allow a setoff for interim earnings. The trial court affirmed. The court affirmed, concluding that the PERB decision was supported by substantial evidence and reflected a “not plainly erroneous” interpretation of the District of Columbia Comprehensive Merit Personnel Act (CMPA).
|
|
Employment Law Editor: Ross Runkel,
Professor of Law Emeritus.
|
|
|
EEOC | NLRB | Supreme Court | Employment Law Blog | Arbitration Blog | Employment Law 101
