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Arbitration Law Memo June 2006
by Ross Runkel at LawMemo
Arbitration Law Memo June 2006
by LawMemo - World's Best
Also available by free monthly email.
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Arbitration - Individual Contracts ***
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NLRB - Non-union employer's arbitration policy was an unfair labor practice (2-1).
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TX - Arbitration agreement was enforced because employee signed acknowledgement form.
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8th - Arbitration agreement was enforced, even though employee refused to sign acknowledgement form.
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OH - Arbitration agreement was enforced, even though employee did not read it.
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NY - Participation in court settlement agreement waived right to arbitration (3-1).
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Arbitration - Collective Bargaining Agreements ***
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1st - Arbitrator lacked authority to overturn employer's weekend on-call policy.
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WA - Employer must arbitrate; arbitrator to decide attorney fees.
*** Arbitration - Individual Contracts ***
NLRB - Non-union employer's arbitration policy was an unfair labor practice (2-1).
U-Haul
Co of California (NLRB 06/08/2006)
http://www.lawmemo.com/nlrb/vol/347/34.htm
A non-union employer adopted an arbitration policy as a condition of employment or continued employment. The policy listed a number of specific state and federal claims that would be subject to mandatory arbitration, and then added "any other legal or equitable claims and causes of action recognized by local, state, or federal law or regulations."
The NLRB held (2-1) that the arbitration policy violated the National Labor Relations Act because it would reasonably tend to inhibit employees from filing charges with the Board. Specifically, the phrase "any other legal or equitable claims and causes of action recognized by local, state, or federal law or regulations" reasonably includes the filing of unfair labor practice charges with the Board, and thus employees could reasonably believe that they are precluded from filing such charges with the Board. Chairman Battista, DISSENTING, argued that there is no evidence that the rule has been applied to the protected activity of invoking Board processes, that there is no evidence that it was intended to apply to such activity, and that the policy does not explicitly bar any Section 7 activity.
HI - No express assent to arbitration provision.
Douglass
v. Pflueger Hawaii, Inc (Hawaii 05/25/2006)
Majority: http://www.state.hi.us/jud/opinions/sct/2006/26363.htm
Concurring: http://www.state.hi.us/jud/opinions/sct/2006/26363con.htm
Douglass sued claiming assault and sexual harassment. The trial court ordered arbitration, and the Supreme Court of Hawaii reversed. When hired, Douglass signed an acknowledgement form on page 40 of the employer's Employee Handbook. Page 20 contained an arbitration provision. The court held that Douglass could not avoid the contract on the ground that he was only 17 when he signed, but the arbitration provision was not enforceable for two reasons. (1) Although Douglass acknowledged receipt and understanding of the items in the Handbook, he did not expressly assent. There was no evidence that he was told that the arbitration provision existed or that he would be bound by it. (2) Any agreement to arbitrate would fail for lack of consideration because the employer retained the right to change the Handbook at any time without advance notice.
TX - Arbitration agreement was enforced because employee signed acknowledgement form.
In
re Dallas Peterbilt (Texas 06/16/2006)
http://caselaw.lp.findlaw.com/data2/texasstatecases/sc/050706.pdf
Harris sued the employer for discrimination, retaliation, defamation, and other torts. The trial court denied the employer's motion to compel arbitration. The Texas Supreme Court reversed. Although Harris signed a form acknowledging that arbitration would be required, he denied having received a copy of the arbitration program or a summary of it. The court concluded that Harris had adequate notice of the arbitration agreement, and that his claims fell within the scope of the agreement.
8th - Arbitration agreement was enforced, even though employee refused to sign acknowledgement form.
Berkley v. Dillard's (8th Cir
06/14/2006)
http://caselaw.lp.findlaw.com/data2/circs/8th/053523p.pdf
Berkley sued the employer, asserting a Title VII claim for race-based harassment. The trial court granted the employer's motion to stay the proceedings and compel arbitration. The 8th Circuit affirmed, concluding that Berkley entered into an enforceable arbitration agreement with the employer and that Berkley's claim fell within the scope of that agreement. Although Berkley refused to sign a form acknowledging receipt of the agreement to arbitrate, he accepted it by continuing to work.
OH - Arbitration agreement was enforced, even though employee did not read it.
Doe v. Farrell (Ohio Ct App 05/26/2006)
http://www.sconet.state.oh.us/rod/newpdf/2/2006/2006-ohio-2676.pdf
Doe sued the employer, asserting various state law claims. The trial court ordered the case to arbitration. The court affirmed, concluding that an enforceable agreement to arbitrate existed between the parties and that Doe's claims were arbitrable under that agreement. Although she did not read the agreement, she signed it and was therefore bound by it. The court rejected Doe's argument that the arbitration agreement was an unconscionable adhesion contract.
NY - Participation in court settlement agreement waived right to arbitration (3-1).
Stark
v. Molod Spitz Desantis & Stark (New York App Div 05/30/2006)
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_04177.htm
Stark
sued the employer for breach of contract, enforcement of settlement agreement,
and other claims. The trial court granted the employer's motion to dismiss and
motion to compel arbitration. The New York Supreme Court, Appellate Division
reversed. Through the employer's actions of entering into a settlement agreement
ending a prior lawsuit without moving to compel arbitration, the court found the
employer manifested a preference clearly inconsistent with their claim that the
parties were obligated to settle their differences by arbitration. The DISSENT
argued that the very limited stipulation did not constitute a clear
manifestation of the employer's intent to waive arbitration.
*** Arbitration - Collective Bargaining Agreements ***
8th - Award enforced: Hospital must fire 73 nurses.
United
Food and Commercial Workers v. St John's (8th Cir 05/24/2006)
http://caselaw.lp.findlaw.com/data2/circs/8th/054316p.pdf
A nurses union sued the employer (a hospital) to enforce a grievance arbitration award that required the employer to discharge 73 nurses and pay the overdue union dues unpaid by those employees. The arbitrator found that this was necessary to enforce the union security clause in the collective bargaining agreement. The trial court confirmed the award. The 8th Circuit affirmed, rejecting the employer's argument that compliance with the award would result in a violation of the public policy underlying the Missouri Hospital Licensing Law and the Missouri Nursing Practice Act.
8th - Arbitrator didn't ignore plain language of CBA.
The Star Tribune v. Minnesota Newspaper
Guild (8th Cir 06/12/2006)
http://caselaw.findlaw.com/data2/circs/8th/053955P.pdf
The employer sued, seeking to vacate a grievance arbitration award rendered in the union's favor. The trial court confirmed the award. The 8th Circuit affirmed, rejecting the employer's argument that the arbitrator ignored the plain language of the parties' collective bargaining agreement.
1st - Arbitrator lacked authority to overturn employer's weekend on-call policy.
Salem
Hospital v. Massachusetts Nurses Assoc (1st Cir 06/02/2006)
http://laws.findlaw.com/1st/052614.html
The
union appealed the trial court's order vacating an arbitration award which
concluded the employer had violated the collective bargaining agreement (CBA) by
requiring nurses to serve on-call at times other than weekday nights. The 1st
Circuit affirmed. The question before the court was the plausibility of the
arbitrator's assertion that the on-call clause of the CBA was not subject to
interpretation at all. The court noted that the hospital had used the on-call
clause for weekend nights for ten years prior to this grievance. The court
concluded it was not plausible for the arbitrator to find the on-call clause not
subject to interpretation, and, therefore, the arbitrator had no authority under
the CBA to overturn the employer's weekend on-call policy on the ground that it
contravened the language of the on-call clause of the CBA.
WA - Employer must arbitrate; arbitrator to decide attorney fees.
Law Enforcement Officers Guild v. Yakima
County (Washington Ct App 05/30/2006)
http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=238113MAJ
The police officers' union sued the public employer, seeking to compel grievance arbitration under the parties' collective bargaining agreement (CBA). The trial court granted summary judgment in favor of the union, interpreting the CBA as requiring arbitration of the grievance. The trial court declined the union's request for attorney fees. The court affirmed in substantial part, leaving the attorney fee issue to the arbitrator. The court declined to rule in favor of the employer on its argument that the grievance was time-barred, leaving that issue for the arbitrator.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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