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Arbitration Law Memo February 2009
by Ross Runkel at LawMemo
| Arbitration Law Memo - February
2009 LawMemo First in Employment Law Arbitrator biographies and awards: National Arbitration Center |
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Arbitration - Individual Arbitration Agreements *** ***
Arbitration - Collective Bargaining Agreements *** *** Arbitration - Individual Arbitration Agreements ***IN - NASD arbitration panel didn’t exceed its authority when it awarded vacation pay, unreimbursed business expenses, and attorney fees.Fiducial
Investment v. Patton (Indiana Ct App 01/29/2009) The employer appealed from the trial court’s order confirming an arbitration award rendered in Patton’s favor. The court affirmed, concluding that the National Association of Securities Dealers (NASD) arbitration panel didn’t exceed its authority when it awarded Patton vacation pay, unreimbursed business expenses, and attorney fees. 8th – Trial court should have severed provisions of arbitration agreement that were unlawful under ERISA, and then compelled arbitration.Franke
v. Poly-America (8th Cir 02/05/2009) Franke sued his employer’s health plan under the Employee Retirement Income Security Act (ERISA), challenging the plan’s denial of benefits. The trial court denied the plan’s motion to compel arbitration. The 8th Circuit reversed. The plan’s arbitration agreement contained provisions that were admittedly in violation of ERISA. The trial court declined to enforce the arbitration agreement, based on those provisions. The court concluded that the trial court erred by not severing the offending provisions and then compelling arbitration. *** Arbitration - Collective Bargaining Agreements ***US - Supreme Court will decide Railway arbitration issue.Union
Pacific v. Brhd of Locomotive Engineers (cert granted 02/23/2009) Five railway employees filed claims through their union, contesting discipline imposed by the employer. Rather than resolving the dispute over the propriety of the discipline, the National Railroad Adjustment Board concluded that the Union failed to submit conclusive evidence that the parties had held a conference to attempt to resolve the dispute - a procedural prerequisite to arbitration. As a result, the Board determined that it was required to dismiss the claim for lack of jurisdiction. The district court agreed. The 7th Circuit reversed. Although the 7th Circuit agreed with the district court that it has always been clear that parties must conference and submit evidence of that fact, it has not been clear when and how that evidence must be presented. The court found that the Board denied the Union due process by requiring the evidence to be presented in the “on-property” record, a requirement not clearly enunciated in the statutes, regulations, or the parties’ collective bargaining agreement. Consequently, the 7th Circuit reversed. The US Supreme Court granted certiorari on February 23, 2009 to review the 7th Circuit judgment. WA – Grievances could be brought under expired CBA, where successor CBA contained retroactivity provision.Kitsap
County Sheriff's v. Kitsap County (Washington Ct App 02/18/2009) The police officers’ union appealed the trial court’s decision that grievances could not be brought under collective bargaining agreements (CBAs) the trial court found had lapsed. The court reversed. The trial court relied upon Maple Valley Professional Fire Fighters Local 3062 v. King County Fire Protection District No. 43, 146 P.3d 1247 (2006) to conclude that a grievance can not be brought under an expired CBA. The court determined that the trial court erred in relying upon Maple Valley, because (in contrast to the present case) there was in Maple Valley no retroactive CBA replacing the expired CBA. CA – School district’s decision not to re-hire probationary teacher wasn’t subject to grievance arbitration.Sunnyvale
Unified School v. Jacobs (California Ct App 02/18/2009) Jacobs, a probationary public school teacher, was not “re-elected” for his second year of teaching. His union filed a grievance, and the matter proceeded to arbitration. An arbitrator found that Jacobs’ non-rehire constituted retaliation in violation of the parties’ collective bargaining agreement and the Educational Employment Relations Act (EERA), and ordered reinstatement. The trial court denied the union’s petition for confirmation of the arbitration award. The court affirmed, concluding that, pursuant to Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, the school district’s non-rehire decision was not subject to grievance arbitration. The court reasoned, “[w]here, as here, the decision is alleged to be a violation of the [EERA] ... the remedy lies with the Public Employee Relations Board (PERB).” MI - Severance of Act 312 mixed bargaining unit upheld.Oakland County v. Oakland County
Sheriffs (Michigan Ct App 02//03/2009) The union petitioned for Act 312 compulsory arbitration of police labor disputes. The Michigan Employment Relations Commission (MERC) severed the union's existing bargaining unit into two units, one eligible for Act 312 arbitration (Patrol Services Division) and one not eligible (Corrections Division). The Michigan Court of Appeal affirmed. MERC broke from past practice of avoiding severance of preexisting mixed units. The court stated that MERC could break from past precedent when rationally explained. The court noted that the employer will be able to bargain separate agreements with the two units without having issues that should properly be limited to one group impinging on negotiations involving the other. The court found it appropriate to direct the severing of the existing unit in order to foster more productive bargaining and to thereby effectuate the purposes of the Act. The DISSENT argued that an evidentiary hearing was required to determine whether the correction division employees were eligible for binding arbitration under Act 312.
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Employment Law Editor: Ross Runkel,
Professor of Law Emeritus.
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