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Arbitration Law Memo November 2006
by Ross Runkel at LawMemo
Arbitration Law Memo November 2006
by LawMemo - World's Best
Also available by free monthly email.
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Arbitration - Individual Contracts ***
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10th - Continued employment was acceptance of dispute resolution program despite express rejection.
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1st - Court improperly reviewed merits of arbitration award.
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TX - Arbitrator's award could not be appealed for legal error.
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Arbitration - Collective Bargaining Agreements ***
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PA - Arbitrator properly treated substitute teachers as members of bargaining unit.
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DC - FLRA's decision on promised time-off to employees was arbitrary and capricious.
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4th - Closing employee cafeteria was a mandatory subject of bargaining.
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MA - Shift assignments were a mandatory subject of bargaining.
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CA - Statutory rights were nonwaivable and non-abridgeable by CBA.
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9th - DC Circuit didn't have exclusive jurisdiction over dispute.
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1st - Employer required to seek review of clarified arbitration award.
*** Arbitration - Individual Contracts ***
10th - Continued employment was acceptance of dispute resolution program despite express rejection.
Hardin
v. First Cash Financial Services (10th Cir 10/06/2006)
http://laws.findlaw.com/10th/056090.html
Hardin sued the employer alleging sex discrimination. The trial court denied the employer's motion to compel arbitration. The 10th Circuit affirmed in part and reversed in part. Two of the issues on appeal were (1) whether an employee's continued employment acted to accept an employer's unilateral changes to an at-will employment contract under Oklahoma law and (2) whether the employer's arbitration agreement was enforceable under Oklahoma law. (1) While the court found it difficult to predict Oklahoma law whether continued employment, in the face of an express rejection, manifested assent to a unilateral change in an at-will employment contract, the court was persuaded Oklahoma law would permit the modification here. (2) The court found that the employer's right to amend the dispute resolution program was reasonably restricted by 10 days notice to employees before amendment, that the amendment did not apply if the employer had actual notice of a claim, and it may not terminate the agreement as to claims which arose prior to termination. The court concluded the arbitration agreement was not illusory and was enforceable.
1st - Court improperly reviewed merits of arbitration award.
McCarthy v. Citigroup Global (1st Cir
09/19/2006)
http://laws.findlaw.com/1st/061001.html
McCarthy filed a claim for arbitration with the National Association of Securities Dealers (NASD) alleging violation of the New Hampshire Wage Law (NHWL). The arbitration panel, after considering the applicability of the NHWL, denied all claims. The trial court vacated the award. The 1st Circuit reversed.
The court found that the trial court misapplied the manifest disregard of the law standard. The court noted that arbitrators need not explain their award and that the record did not show that the arbitrators expressly disregarded the NHWL. The court concluded that the trial court's analysis of the merits of the arbitration panel's award was proscribed by the standards of review of arbitration awards.
TX - Arbitrator's award could not be appealed for legal error.
Pasadena v. Smith (Texas Ct App
09/14/2006)
http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=83449
The employer appealed the arbitrator's award in favor of Smith arguing that the arbitrator erred in interpreting the law . The trial court granted Smith's plea to the jurisdiction. The Texas Court of Appeals affirmed. The court held that the trial court did not have jurisdiction under either section 143.057(j) of the Texas Local Government Code or the Uniform Declaratory Judgments Act because the appeal did not argue that the arbitrator's award was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.
FL - Employee waived her right to arbitration.
Inverrary Gardens Condominium I Assn v.
Spender (Florida Ct App 10/25/2006)
http://www.4dca.org/Oct%202006/10-25-06/4D05-3810.op.pdf
Spender sued the employer, asserting (among other things) a claim for breach of contract. After a considerable amount of litigation, Spender moved to compel arbitration pursuant to an arbitration clause in her employment contract. The trial court granted the motion. The court reversed, concluding that Spender waived her right to arbitration.
*** Arbitration - Collective Bargaining Agreements ***
PA - Arbitrator properly treated substitute teachers as members of bargaining unit.
Somerset Area Sch Dist v. Somerset Area
Educ Assn (Pennsylvania Cmwlth 09/25/2006)
http://www.courts.state.pa.us/OpPosting/CWealth/out/762CD05_9-25-06.pdf
The public employer appealed the trial court's order denying its petition to vacate a grievance arbitration award rendered in the union's favor. The court affirmed. The arbitrator determined that the employer violated the parties' collective bargaining agreement (CBA) when it refused to treat three permanent substitute teachers as members of the teachers' bargaining unit. The court concluded that "the arbitrator's award was rationally derived from the agreement," reasoning "the arbitrator determined the intent of the parties by viewing the language contained in the CBA along with other indicia of the parties' intention."
DC - FLRA's decision on promised time-off to employees was arbitrary and capricious.
National Treasury Employees Union v.
FLRA (DC Cir 10/27/2006)
http://caselaw.lp.findlaw.com/data2/circs/dc/051405a.pdf
The union filed a grievance for failure to award promised time off to employees who volunteered for seasonal customer service duty. The arbitrator agreed with the union, but the Federal Labor Relations Authority (FLRA) ruled that the awards were barred by 5 USC Section 4502(e), which allowed time-off awards only for superior accomplishment or other personal effort that contributed to the quality, efficiency, or economy of government operations. The DC Circuit reversed. The court found that the memoranda of understanding (MOU) between the local unions and the employer's regions were ambiguous about whether awards were required even as to inadequate volunteers. The court concluded that the FLRA's failure to address the MOU's textual ambiguities and the arguably conflicting evidence as to the parties' contemporaneous understanding or subsequent practices rendered its decision arbitrary and capricious.
4th - Closing employee cafeteria was a mandatory subject of bargaining.
Washington
Metropolitan Area Transit Authority v. Local 2 (4th Cir 10/04/2006)
http://caselaw.lp.findlaw.com/data2/circs/4th/042274p.pdf
The arbitrator ordered arbitration of the closing of an employee cafeteria under the collective bargaining agreement (CBA) finding that the management rights provision of the CBA did not apply. The trial court confirmed the award. The 4th Circuit affirmed. The court framed the fundamental question in this case as whether the cafeteria closure was a core managerial decision. The court, relying on Ford Motor Co. v NLRB, 441 US 488 (1979), found that closing an employee cafeteria was a condition of employment.
MA - Shift assignments were a mandatory subject of bargaining.
Local 2071 v. Town of Bellingham
(Massachusetts Ct App 09/06/2006)
http://www.socialaw.com/slip.htm?cid=16554&sid=119
The municipal employees' union filed suit, seeking enforcement of an arbitration award rendered in its favor. The trial court found in the union's favor, concluding that a shift assignment issue (the union proposed 24 hour shifts) was arbitrable and that the arbitration decision was supported by the record. The court affirmed. G.L. c. 150E, Section 6 provides in relevant part that "[t]he employer and the exclusive representative ... shall negotiate in good faith with respect to wages, hours, standards or productivity and performance, and any other terms and conditions of employment .... " The court agreed with the trial court that "shifts structure hours of employment and fit neatly within the plain meaning of 'hours' in G.L. c. 150E, Section 6."
CA - Statutory rights were nonwaivable and non-abridgeable by CBA.
Zavala v. Scott Brothers Dairy
(California Ct App 09/28/2006)
http://www.lawmemo.com/docs/ca/zavala.pdf
Zavala sued the employer for unfair business practices and two wage claims for statutory rest breaks and properly itemized wage-statements. The trial court denied the employer's petition to compel arbitration. The California Court of Appeal affirmed. The question before the court was whether the parties agreed to resolve statutory labor claims by arbitration. The court concluded that regardless of whether the collective bargaining agreement (CBA) included a broad arbitration provision, that clause was not binding on Zavala because the union could not waive Zavala's right to bring statutory labor-rights claims in court and because such claims did not arise under the CBA.
PA - Scheduling was not a management prerogative.
Rebert
v. York County Detectives Assn (Pennsylvania Cmwlth 10/16/2006)
http://www.courts.state.pa.us/OpPosting/CWealth/out/659CD06_10-16-06.pdf
The public employer appealed from the trial court's order affirming a grievance arbitration award rendered in the union's favor. The award directed the employer to refrain from scheduling work hours in a manner inconsistent with the parties' collective bargaining agreement (CBA). The court affirmed, rejecting the employer's arguments that "in light of the reservation of exclusive authority to hire, fire and supervise its employees conferred by Section 1620 of The County Code, the arbitrator lacked jurisdiction, exceeded his powers, and impaired constitutional rights when he enforced the CBA."
9th - DC Circuit didn't have exclusive jurisdiction over dispute.
American Federation
of Government Employees
v. Principi (9th Cir 10/02/2006)
http://caselaw.lp.findlaw.com/data2/circs/9th/0416607p.pdf
A physician/employee with the US Department of Veterans Affairs (VA) filed a grievance (through his union) under a grievance procedure set forth in the parties' collective bargaining agreement (CBA). The VA claimed that the matter was exempt from the grievance procedure, pursuant to 38 USC Section 7422(b). An arbitrator dismissed the case without prejudice to give the parties an opportunity to seek judicial review. The trial court concluded that 1) the VA misapplied the exemption applying to "the establishment, determination, or adjustment of employee compensation" set forth in Section 7422(b)(3), but 2) the matter was properly exempted from grievance arbitration under the exemption applying to "professional conduct or competence" set forth in Section 7422(b)(1). The 9th Circuit affirmed as to the second conclusion and found it unnecessary to address the first. In so holding, the court addressed 38 USC Section 7422(e) and rejected the VA's argument that the DC Circuit had exclusive jurisdiction over the dispute. More specifically, the court concluded that "Section 7422(e) does not grant exclusive jurisdiction to the DC Circuit over petitions involving Section 7421(b) employees or the applicability of chapter 71 or title 5, unless those petitions also arise from an FLRA order as described in 5 USC Section 7123."
1st - Employer required to seek review of clarified arbitration award.
Local 2322 v. Verizon New England (1st
Cir 09/28/2006)
http://laws.findlaw.com/1st/061169.html
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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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