*** Arbitration - Individual contracts ***

·         10th - Right to compel arbitration was not waived by four month delay during litigation, nor by failing to raise the issue in the answer.

*** Arbitration - Collective bargaining agreements ***

·         WA - Mandamus not appropriate remedy for union seeking to compel governor to revise budget to include funding for pay raises awarded pursuant to interest arbitration. (5-4)

·         IL - Arbitration award reinstating transit authority bus driver violated public policy, where bus driver had been convicted of aggravated criminal sexual abuse.

·         MA - Civilian employee discharged by state police lacked grievance rights under state statute.

·         NY - No layoff clause of CBA required public employer to arbitrate abolishment of positions due to economic distress.

·         PA - School District's denomination as "special teachers" did not prevent application of CBA to void individual agreements of understanding.

·         PA - Act 111 grievance arbitration award didn't require employer to violate Pennsylvania's Confidence in Law Enforcement Act.

·         IL - Interest arbitration award reinstating public employee didn't violate public policy.

*** Arbitration - Individual contracts ***

10th - Right to compel arbitration was not waived by four month delay during litigation, nor by failing to raise the issue in the answer.

Hill v. Ricoh Americas Corp (10th Cir 04/19/2010)
http://case.lawmemo.com/10/hill.pdf

Hill sued his former employer, claiming he was discharged in violation of the Sarbanes Oxley Act. The trial court denied the employer's motion to compel arbitration on the ground of waiver; the 10th Circuit reversed.

The employer demanded arbitration four months after filing an answer, but that delay alone does not establish waiver of the right to arbitrate. The critical question was what was happening in the litigation during that period. The only discovery that had been initiated was Hill's request for production plus Rule 26(a)(1) disclosures. Trial would not take place for another 11 months; discovery could continue for another five and one-half months; the deadline for completing ADR was more than two months away. Hill "failed to show any substantial prejudice" from the delay, and failed to show that he was burdened by discovery or Rule 26 disclosures any more than if the case had gone to arbitration earlier.

The court rejected Hill's argument that the right to arbitrate was an affirmative defense that had to be contained in the employer's answer. Fed R Civ P 8(c)(1) states that "arbitration and award" is an affirmative defense, but this applies only to cases in which a claim has already been resolved by arbitration.

*** Arbitration - Collective bargaining agreements ***

WA - Mandamus not appropriate remedy for union seeking to compel governor to revise budget to include funding for pay raises awarded pursuant to interest arbitration. (5-4)

SEIU v. Gregoire (Washington 04/08/2010)
http://case.lawmemo.com/wa/seiu.pdf

The healthcare workers' union petitioned for a writ of mandamus compelling the governor to revise the budget she submitted to the legislature.  The union sought to have the budget revised so as to include funds for pay increases for 25,000 in-home personal care providers, increases that were awarded by an arbitrator after interest arbitration.  The court rejected the petition, concluding that 1) the budget revision was a discretionary (rather than ministerial) duty not appropriate as the subject for mandamus relief; and 2) even if mandamus were appropriate, the petition was moot because the legislature had already adopted a budget and adjourned.  The court reasoned that "[d]eciding the allocation of limited state funds in order to achieve the statutorily required balanced budget necessarily involves the exercise of the governor's discretion."

The DISSENT argued that "the governor had a mandatory duty to include in the proposed ...budget a request to fund the arbitration award in this case."  The dissent also argued, "[b]ecause this is a matter of great importance that is subject to recurrence whenever the law requires that a request be included in the governor's proposed budget, this case should be decided regardless of mootness."

IL - Arbitration award reinstating transit authority bus driver violated public policy, where bus driver had been convicted of aggravated criminal sexual abuse.

Chicago Transit Auth v. Amalgamated Transit Union (Illinois Ct App 03/24/2010)
http://case.lawmemo.com/il/cta.pdf

Gibson was discharged from his job as a transit authority bus driver, after the employer learned that Gibson had been convicted of the aggravated criminal sexual abuse of his 12-year-old stepdaughter.  Pursuant to grievance arbitration, an arbitrator ordered Gibson reinstated.  The trial court denied the employer's motion to vacate the arbitration award.  The court reversed, concluding that the award violated the "well-defined and dominant public policies ... in favor of the safe and secure transportation of the public, including children, and the protection of the public, especially juveniles, from convicted sex offenders[.]"  The court noted that Gibson had not successfully completed sex offender treatment, had failed several polygraph examinations regarding his sexual behavior, and admitted that "he engaged in repeated sexual acts with his 12-year-old stepdaughter on so many occasions that he could not count them."

MA - Civilian employee discharged by state police lacked grievance rights under state statute.

Dept of State Police v. MOSES (Massachusetts 04/02/2010)
http://case.lawmemo.com/ma/mapolice.htm

The employer filed an application for a permanent stay of arbitration after the arbitrator found the union's grievance arbitrable. The trial court granted the stay. The Massachusetts Supreme Judicial Court affirmed.

Pino, a chemist, was discharged pursuant to G.L. c 22C, section 9 (removal of civilian employees). The employer argued that section 9 conferred on the employer nondelegable managerial authority to remove civilian employees, making the grievance arbitration outside the arbitrator's authority. The court agreed, concluding that section 9 applied to Pino as an expert (chemist) and granted the employer exclusive and nondelegable authority to appoint and remove civilian experts. The court stated that the exception to this doctrine was limited to constitutionally protected discrimination claims such as gender and race, not discrimination based on union membership and activities. The court noted that there did not appear to be any reason an unfair labor practice based on discharge for union activity could not have been filed with the division of labor relations.

NY - No layoff clause of CBA required public employer to arbitrate abolishment of positions due to economic distress.

Professional Firefighters v. Village of Johnson City (New York App Div 04/08/2010)
http://case.lawmemo.com/ny/firefighters.htm

The union sought a preliminary injunction prohibiting the employer from laying off six firefighters, which the trial court granted. The union served a demand for arbitration on the employer pursuant to the collective bargaining agreement (CBA). The employer commenced a proceeding to permanently stay arbitration. The trial court denied the stay and ordered the parties to proceed to arbitration. The New York Appellate Division affirmed.

The employer argued that its right to abolish positions by reason of economic distress was a nondelegable duty. The court found that the CBA's no-layoff clause was not subject to any prohibition against arbitration; a reasonable job security provision did not violate public policy and Civil Service Law section 80 did not set forth nondelegable duties pertinent to the lay-off provision at issue. As this dispute was reasonably related to the CBA, the court concluded the parties agreed to arbitrate it.

PA - School District's denomination as "special teachers" did not prevent application of CBA to void individual agreements of understanding.

Tunkhannock Area Sch Dist v. TAEA (Pennsylvania Cmnwlth Ct 04/13/2010)
http://case.lawmemo.com/pa/tunkhannock.pdf

The union filed a grievance seeking to have the "special teachers" retroactively hired as either temporary professional or professional employees and subject to the collective bargaining agreement (CBA). The arbitrator ruled in favor of the union. The trial court affirmed. The Pennsylvania Commonwealth Court affirmed.

The "special teachers" were hired with Title II federal money and signed an agreement of understanding. The court noted that, because the "special teachers" hired by the employer performed the same functions as the other teachers, rather than catering specifically to immigrants or teaching some other type of special class, they could not as a matter of law be special teachers. Even assuming they were special teachers, the court stated, under Section 1101 of the Public School Code, that any certified teacher who has been employed to perform the duties of a newly created position immediately became a "temporary professional employee" and, as such, was a part of the bargaining unit governed by the CBA. The court concluded the "special teachers" could not enter into an agreement of understanding contracting away their rights under the CBA.

PA - Act 111 grievance arbitration award didn't require employer to violate Pennsylvania's Confidence in Law Enforcement Act.

State Police v. State Troopers' Assoc (Pennsylvania Cmnwlth Ct 04/13/2010)
http://case.lawmemo.com/pa/statepolice.pdf

The public employer petitioned for review of the portion of an Act 111 grievance arbitration award that sustained a state trooper's grievance, and awarded backpay for the period during which the trooper was suspended.  The court affirmed.  The trooper had been suspended during the pendency of a felony criminal proceeding.  The criminal charge against him was eventually "nolle prossed" – which led to rescission of the mandatory suspension.  The court rejected the argument that the arbitrator's award required the employer to violate the Confidence in Law Enforcement Act (CILEA), and concluded that the arbitrator didn't exceed his authority in ordering the employer to provide backpay.

IL - Interest arbitration award reinstating public employee didn't violate public policy.

Dept of Central Mgt v. Ndoca (Illinois Ct App 03/23/2010)
http://case.lawmemo.com/il/ndoca.pdf

The public employer appealed the trial court's denial of a petition to vacate a grievance arbitration award reinstating an employee who was discharged for failing a drug test.  The court affirmed, rejecting the employer's arguments that 1) the arbitrator exceeded her authority, because the parties' collective bargaining agreement (CBA) mandated discharge of employees who fail drug tests; and 2) the arbitrator's award violated public policy.  The court determined that the CBA did not mandate discharge "with the clarity which [the employer] asserts."  The court also determined that the employer "failed to demonstrate the existence of a clear public policy that mandates automatic termination for public employees upon the discovery of any illegal drug usage by the employees."

*** Arbitration - Individual contracts ***

·         NY - Court established case-by-case determination of litigant's financial ability to pay arbitration fees and costs.

·         MO - Mere continued employment did not evince acceptance of arbitration agreement.

·         OR - Arbitration provision was not substantively unconscionable.

*** Arbitration - Collective bargaining agreements ***

·         HI - Trial court's order denying confirmation of arbitration award was not appealable, where trial court remanded case to arbitrator for rehearing.

·         NY - Discharge of state employees for failure to maintain required credentials didn't constitute discipline subject to grievance arbitration.

·         PA - Act 111 arbitration award violated Municipalities Financial Recovery Act.

·         PA - Court rejects employer's attempt to introduce "after-acquired evidence" of irregularity of arbitration proceedings.

·         NY - Trial court erred when it granted transit authority's petition to stay arbitration.

·         CA - Arbitrator didn't exceed her authority when she ordered reinstatement of laid-off housing authority employee.

·         NY - State Division of Human Rights failed to give preclusive effect to findings made in prior arbitration proceedings.

·         10th - Ceding railroad maintenance obligations was minor dispute under RLA.

*** Arbitration - Individual contracts ***

NY - Court established case-by-case determination of litigant's financial ability to pay arbitration fees and costs.

Brady v. The Williams Capital Group (New York 03/25/2010)
http://case.lawmemo.com/ny/brady1.htm

Brady brought an Article 78 proceeding to compel the employer to pay the arbitrator's fee with respect to her Title VII wrongful discharge claim based on sex and race discrimination. The trial court dismissed the petition holding the fee-sharing provision of the arbitration agreement, rather than the American Arbitration Association's (AAA) "employer-pays" rule, governed. The New York Appellate Division reversed. The New York Court of Appeals remitted the matter to the trial court for a hearing on Brady's financial ability to share the costs of arbitration.

The court was mindful of the strong state policy favoring arbitration agreements and the equally strong policy requiring the invalidation of such agreements when they contain terms that could preclude a litigant from vindicating her statutory rights in the arbitral forum. The court held that in this context, the issue of a litigant's financial ability is to be resolved on a case-by-case basis and that the inquiry should at minimum consider the following questions: (1) whether the litigant can pay the arbitration fees and costs; (2) what is the expected cost differential between arbitration and litigation in court; and (3) whether the cost differential is so substantial as to deter the bringing of claims in the arbitral forum.

MO - Mere continued employment did not evince acceptance of arbitration agreement.

Kunzie v. Jack-In-The-Box (Missouri Ct App 03/09/2010)
http://case.lawmemo.com/mo/kunzie.pdf

Kunzie sued the employer for violation of the Missouri Human Rights Act (MHRA) alleging wrongful discharge on the basis of age and gender. The trial court granted the employer's motion to compel arbitration. After arbitration favorable to the employer, the trial court dismissed Kunzie's suit. The Missouri Court of Appeals reversed.

The dispositive issue was whether the arbitration agreement lacked mutual assent; and, more specifically, whether the trial court was correct in holding that an employee's continued employment after being presented with an arbitration agreement from his employer stating that the alternative dispute resolution was a condition of continued employment decisively evidenced the employee's intention to be bound by the arbitration agreement. The court disagreed, finding that Kunzie's continued employment, by itself, only evinced his intent to maintain the status quo and was not a positive and unambiguous acceptance. The court held that the manifestation of an existing employee's unequivocal intention to be bound by an employer's proposed arbitration agreement as a new condition of employment necessitated more than the employee's mere continued work to satisfy Missouri's meeting of the minds requirement. The court remanded for an evidentiary hearing to determine whether Kunzie accepted the arbitration agreement.

OR - Arbitration provision was not substantively unconscionable.

Livingston v. Metropolitan Pediatrics (Oregon Ct App 03/03/2010)
http://case.lawmemo.com/or/livingston.htm

Livingston sued the employer for wrongful discharge, breach of contract, and other claims. The trial court denied the employer's motion to compel arbitration, concluding the arbitration agreement was void as against public policy. The Oregon Court of Appeals reversed.

Livingston's employment agreement required arbitration of "[a]ny controversy, dispute or disagreement arising out of or relating to this Agreement, or the breach thereof[.]" The trial court explained that there were four aspects of the arbitration clause that rendered it unconscionable: (1) a fee-shifting provision imposing attorney fees and costs on Livingston if he did not prevail; (2) imposition of excessive arbitration fees on Livingston; (3) ambiguity about which version of the American Arbitration Association (AAA) rules would apply; and (4) a confidentiality requirement.

The court concluded: (1) in the absence of evidence that the fee-shifting provision, in fact, results in the arbitration forum not providing a reasonable alternative forum for Livingston, the court concluded that the fee-shifting provision was not substantively unconscionable; (2) in the absence of evidence that the fees would have a chilling effect on Livingston's ability to pursue his claims, any conclusion that the fee is unconscionable would be speculative; (3) the AAA rules provide that the employment rules apply; and (4) the confidentiality provision is even-handed and equally benefits and burdens both sides to the employment agreement.

*** Arbitration - Collective bargaining agreements ***

HI - Trial court's order denying confirmation of arbitration award was not appealable, where trial court remanded case to arbitrator for rehearing.

SHOPO v. Cnty of Kauai (Hawaii Ct App 03/19/2010)
http://case.lawmemo.com/hi/shopo.pdf

The police officers' union moved to confirm a grievance arbitration award rendered in its favor.  The trial court denied the motion, and granted in part and denied in part the employer's motion to vacate the award.  Pursuant to the latter determination, the trial court remanded the matter to the arbitrator with instructions to reconsider an appropriate remedy.  The union appealed.  The court dismissed the appeal for lack of subject matter jurisdiction.

HRS Section 658A-28 is part of a Uniform Arbitration Act (UAA) that the Hawai'I Legislature adopted in 2001.  HRS Section 658A-28(a)(3) authorizes an appeal from an order that either confirms or denies an arbitration award.  Section 658A-28(a)(5) authorizes an appeal from "[a]n order vacating an award without directing a rehearing[.]"  The court observed that "[a]ppellate courts in a majority of jurisdictions that have adopted the UAA and have addressed the issue of appellate jurisdiction under the circumstances of this case have held that appellate jurisdiction was lacking."  The court adopted the majority approach, and held that the trial court's order denying confirmation of the arbitration award was not an appealable order.  The court noted that "the language in HRS Section 658A-28(a)(5) appears to preclude appellate jurisdiction when a circuit court directs a rehearing, because HRS Section 658A-28(a)(5) authorizes an appeal from an order vacating an arbitration award only when such an order does so ‘without directing a rehearing.'"

NY - Discharge of state employees for failure to maintain required credentials didn't constitute discipline subject to grievance arbitration.

Children & Family Services v. Office of Alcoholism & Abuse (New York 03/25/2010)
http://case.lawmemo.com/ny/children.htm

State employees were discharged for letting their credentials expire.  The credentials were required for their jobs.  The employees sought to arbitrate their discharges pursuant to their collective bargaining agreement's grievance procedure, but the court concluded that the employees were not entitled to grievance arbitration.  The court reasoned, "[u]nder our decision in Matter of Felix v. New York City Dept. of Citywide Admin. Servs. (3 NY3d 498 [2004]), the dismissals clearly were not disciplinary, and the employees' assertion that they were does not have a relationship with their collective bargaining agreement sufficient to justify arbitration of the issue."

PA - Act 111 arbitration award violated Municipalities Financial Recovery Act.

Intl Assoc of Firefighters v. City of Chester (Pennsylvania Cmnwlth Ct 03/22/2010)
http://case.lawmemo.com/pa/iaff.pdf

The municipal firefighters' union appealed the trial court's order setting aside an Act 111 grievance arbitration award rendered in its favor.  The court noted, "[t]his appeal ...requires this Court to again examine the effect of the Municipalities Financial Recovery Act (Act 47) on collective bargaining rights under the statute known as the Policemen and Firemen Collective Bargaining Act (Act 111)."  The arbitration award at issue granted an annual wage increase to firefighters of more than 3%, in spite of the fact that the city's Act 47 recovery plan capped annual wage increases at 3%.  The court determined that the arbitration award violated Act 47, to the extent the annual wage increase exceeded 3%.  The court thus modified the award to reduce the increase to 3% (rather than setting aside the award altogether) and affirmed as modified.

PA - Court rejects employer's attempt to introduce "after-acquired evidence" of irregularity of arbitration proceedings.

City of Wilkes-Barre v. Wilkes-Barre Fire Fighters Assoc (Pennsylvania Cmnwlth Ct 03/22/2010)
http://case.lawmemo.com/pa/wilkes-barre.pdf

The municipal employer appealed the trial court's order affirming an Act 111 grievance arbitration award rendered in the union's favor.  The award was based on the arbitrator's conclusions that 1) the grievance was subject to arbitration; and 2) employer violated a pay "parity" provision in the parties' collective bargaining agreement.  The court affirmed.  The employer argued that the arbitration proceedings were "irregular" and sought to introduce allegedly after-acquired evidence in support of that contention.  The court concluded, "[w]e cannot here conclude that a party is entitled to seek to challenge a witness's credibility with evidence in its possession about which it forgot and remembered after the completion of a hearing, and as in this case, after the issuance of an adjudication.  A party's failure to remember evidence that might have aided its case by challenging a witness's credibility simply does not amount to an irregularity of proceedings."

NY - Trial court erred when it granted transit authority's petition to stay arbitration.

Niagara Frontier Trans Auth v. NFTA Superior Officers Assoc (New York App Div 03/19/2010)
http://case.lawmemo.com/ny/frontier.htm

The transit authority officers' union appealed from the trial court's order granting the transit authority's CPLR article 75 petition for a permanent stay of arbitration.  The dispute arose from the promotion of a firefighter to acting captain, resulting from an alleged vacancy.  The court reversed, stating "[w]e conclude that the dispute is arbitrable inasmuch as the alleged ‘promotion' may be deemed to constitute an ‘assign[ment],' thus obligating petitioner to determine the availability of the existing captains and to offer them overtime before making that assignment.  Those issues should be resolved by an arbitrator."

CA - Arbitrator didn't exceed her authority when she ordered reinstatement of laid-off housing authority employee.

San Francisco Housing Auth v. SEIU (California Ct App 03/09/2010)
http://case.lawmemo.com/ca/sfhousauth.pdf

The union appealed the trial court's order vacating a grievance arbitration award rendered in its favor.  The court reversed.  The arbitration award ordered reinstatement of a laid-off housing authority employee, based on the arbitrator's conclusion that the employer violated the "meet and confer" provision in the parties' memorandum of understanding (MOU).  The employer argued that the arbitrator exceeded her authority by ordering the employee reinstated into a position to which she was not entitled under the MOU.  The court rejected that argument, noting that although the parties' agreement did not mandate placement of the employee into the position at issue, nothing in the agreement prohibited that remedy.  The court also rejected the employer's argument that the arbitrator's decision constituted a modification of the parties' agreement, observing that "[t]he arbitrator recognized that the parties [themselves] could modify the contract" to resolve their dispute.

NY - State Division of Human Rights failed to give preclusive effect to findings made in prior arbitration proceedings.

Dept of Labor v. Div of Human Rights (New York App Div 03/11/2010)
http://case.lawmemo.com/ny/labor.htm

The public employer sought review of a determination by the State Division of Human Rights, which found that the employer discharged its employee in retaliation for complaining about sexual harassment.  The court annulled that determination, based on application of res judicata and collateral estoppel arising from prior grievance arbitration proceedings.  The court concluded that the employee was "precluded from relitigating either the arbitrator's findings of fact or his conclusions...."

10th - Ceding railroad maintenance obligations was minor dispute under RLA.

Brotherhood v. Burlington Northern (10th Cir 03/02/2010)
http://case.lawmemo.com/10/maintenance.pdf

The union sued the employer alleging violation of the Railway Labor Act (RLA) and the collective bargaining agreement (CBA) in assigning maintenance to the New Mexico Department of Transportation, the purchaser of 290 miles of rail line. The trial court dismissed the action for lack of jurisdiction over the claims. The 10th Circuit affirmed.

The court found the dispute was minor: (1) the CBA placed no restrictions on the employer's right to sell rail lines, (2) the employer had previously sold properties to third parties and ceded its maintenance obligations, (3) several arbitration decisions involving leased or sold railroad properties supported the employer's decision, and (4) the court's conclusion was in accord with the decisions of other federal courts. The court concluded that the factors all arguably justified the employer's explanation for its action and that binding arbitration of minor disputes was mandatory by the National Railroad Adjustment Board under the RLA.

*** Arbitration - Individual Arbitration Agreements ***

·         CA - $19 million arbitration award against employee is confirmed.

·         2nd - Arbitration compelled after employer waived statute of limitations and fee-shifting provisions.

·         MT - Employer was entitled to attorney fees incurred after employee's rejection of its offer to arbitrate.

·         CA - Physician wasn't bound by arbitration agreement between hospital and medical group.

·         4th - Basis for arbitration award rendered in financial advisors' favor didn't fall within scope of NASD Rule 10101.

·         NY - Arbitration award issued under Jewish law upheld.

·         CA - Limitation on discovery did not make agreement unconscionable.

·         UT - Arbitration panel's discovery decisions didn't provide a basis for vacating arbitration award.

*** Arbitration - Collective Bargaining Agreements ***

·         NY - Arbitrator didn't exceed his authority reducing level of discipline imposed on transit employee for assaulting customer.

·         3rd - CBA did not grant union newly-acquired store access; grievance was not arbitrable (2-1).

·         MD - Voter-initiated legislation requiring collective bargaining and binding arbitration was unconstitutional.

·         CA - State correctional supervisors weren't statutorily entitled to pay increases commensurate with those given to subordinates.

·         NY - Repeated instances of misconduct and insubordination led to discharge.

·         WA - PERC had exclusive jurisdiction over longshore workers' representation dispute.

·         1st - Employee's LMRA Section 301 complaint against employer for violation of CBA withstood dismissal.

*** Arbitration - Individual Arbitration Agreements ***

CA - $19 million arbitration award against employee is confirmed.

Oaktree Capital Mgt v. Bernard (California Ct App 02/22/2010)
http://case.lawmemo.com/ca/oaktree.pdf

Bernard was a fund manager employed by Oaktree until he resigned and formed his own company. Bernard demanded arbitration on his claim that Oaktree owed him incentive fees. The arbitrator (a) found that Bernard's incentive fees had not vested prior to his departure, (b) found that Bernard breached his fiduciary duty to Oaktree by delaying the launch of an Oaktree project so that his new company could purchase a commercial building that should have been an Oaktree investment, and (c) awarded to Oaktree $12.3 million for fees lost due to the delay plus $6.7 million in attorney fees, costs, and interest. The trial court confirmed the arbitrator's award, and the California Court of Appeal affirmed.

The court rejected Bernard's argument that the award violates the public policy protecting an employee's compensation, because the arbitrator found that the fees he claimed had not vested before he left Oaktree. The court rejected Bernard's argument that the award exceeded the arbitrator's powers by making him liable to his employer for malfeasance as an employee, because he acted for his personal benefit in breach of his fiduciary duties to Oaktree.

2nd - Arbitration compelled after employer waived statute of limitations and fee-shifting provisions.

Ragone v. Atlantic Video (2nd Cir 02/17/2010)
http://case.lawmemo.com/2/ragone.pdf

Ragone sued the employer for violation of Title VII and other claims alleging sexual harassment. The trial court granted the employer's motion to compel arbitration after employer waived enforcement of certain provisions of the arbitration agreement. The 2nd Circuit affirmed.

The court found the arbitration agreement was not made procedurally unconscionable by a "take it or leave it" offer, failure to read the agreement, or a failure to understand the agreement. With the employer's waiver of the statutes of limitations and the fee shifting provisions of the arbitration agreement, the court rejected Ragone's argument that the arbitration agreement, when considered as a whole, contained oppressive and unlawful provisions meant to disadvantage the employee. The court reasoned that New York law allowed the enforcement of an agreement with modified provisions that otherwise might be unconscionable. The court noted that had the employer attempted to enforce the agreement as originally written, it was not clear that the court would hold in its favor. The court agreed with the trial court that the relationship between Ragone, her employer, and ESPN supported the application of equitable estoppel, and, therefore, the arbitration agreement applied to the non-signatory ESPN.

MT - Employer was entitled to attorney fees incurred after employee's rejection of its offer to arbitrate.

Prescott v. Innovative Resource Group (Montana 02/16/2010)
http://case.lawmemo.com/mt/prescott.pdf

Prescott sued the employer, asserting a claim under Montana's Wrongful Discharge from Employment Act (WDEA).  The employer offered to arbitrate the dispute, but Prescott declined.  The employer prevailed after a jury trial, and was awarded attorney fees and costs.  The court affirmed.  The employer was awarded its attorney fees pursuant to Section 39-2-915 of the WDEA, which provides that "[a] party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under this part is entitled as an element of costs to reasonable attorney fees incurred subsequent to the date of the offer."  The court declined to address Prescott's constitutional challenges to this provision because they were not preserved for appeal.  The court rejected Prescott's alternative arguments.

CA - Physician wasn't bound by arbitration agreement between hospital and medical group.

Suh v. Superior Ct (California Ct App 02/18/2010)
http://case.lawmemo.com/ca/suh.pdf

Suh sued the hospital where he formerly worked as a staff physician, as well as a medical group to which he belonged (and which contracted with the hospital).  Suh asserted (among other things) state law claims for age discrimination, national origin discrimination, and retaliation.  The trial court compelled arbitration, pursuant to arbitration agreements contained in two contracts between the hospital and the medical group.  The court reversed, concluding that 1) Suh was not bound by one of the arbitration agreements, since he was a non-signatory to that agreement and was not otherwise bound to it; and 2) the other agreement was both procedurally and substantively unconscionable, and hence unenforceable.

4th - Basis for arbitration award rendered in financial advisors' favor didn't fall within scope of NASD Rule 10101.

Raymond James Financial v. Bishop (4th Cir 02/22/2010)
http://case.lawmemo.com/4/rjames.pdf

Financial advisors engaged in the sales of securities asserted claims against the registered securities broker/dealer for which they worked.  The claims (including breach of contract, breach of fiduciary duty, "violation of just and equitable principles of trade," and tortious interference with contract) were resolved via arbitration pursuant to the rules of the National Association of Securities Dealers (NASD), with the financial advisors being awarded substantial compensatory damages.  The trial court vacated the compensatory damages award.  The 4th Circuit affirmed, concluding that the arbitration panel clearly "exceeded its power" under 9 USC Section 10(a)(4).  The court reasoned that the arbitration panel exceeded its power when it found that the broker/dealer "committed a breach of ‘fiduciary and legal duties' when its in-house lawyer ... provided legal representation to the [financial advisors] in third-party arbitration proceedings."  The court reasoned that the arbitration panel rendered an award "whose underlying legal basis exceeded the bounds of arbitral employment-related disputes cognizable under NASD Rule 10101 as interpreted...[by Zandford v. Prudential-Bache Securities, Inc., 112 F.3d 723 (4th Cir 1997)]...."

NY - Arbitration award issued under Jewish law upheld.

Brisman v. Hebrew Academy (New York App Div 02/16/2010)
http://case.lawmemo.com/ny/brisman.htm

The trial court vacated the arbitration award (issued in accordance with Jewish law and the rules of Beth Din of America) reinstating the tenured teacher, Brisman. The New York Appellate Division reversed. The court found that Brisman demonstrated that he was a tenured teacher and could only be discharged for cause and that the employer failed to rebut this evidence by showing the award violated public policy, was irrational, or exceeded the arbitrator's authority.

CA - Limitation on discovery did not make agreement unconscionable.

Dotson v. Amgen Inc (California Ct App 02/03/2010)
http://case.lawmemo.com/ca/dotson.pdf

Dotson sued the employer, asserting a state law whistleblower claim.  The employer moved to compel arbitration, but the trial court denied that on the ground that the parties' arbitration agreement was unconscionable.  The trial court based that determination on a clause in the agreement limiting each party to one deposition "of one individual and any expert witness designated by another party."  The clause also provided that additional discovery could be had "upon a showing of need."  The court reversed, concluding that "the language permitting the arbitrator to expand discovery upon a showing of need removes any taint of ‘unconscionability' from the agreement."

UT - Arbitration panel's discovery decisions didn't provide a basis for vacating arbitration award.

Hicks v. UBS Financial (Utah Ct App 02/04/2010)
http://case.lawmemo.com/ut/hicks.pdf

The employer appealed the trial court's order vacating an arbitration award.  The trial court's order was based on its determination that the arbitration panel's discovery decisions substantially prejudiced Hicks' right to present his case.  The court reversed.  The court concluded that 1) it had jurisdiction to consider the matter, pursuant to Amalgamated Transit Union, Local 382 v. Utah Transit Authority, 99 P.3d 379 (2004); and 2) although discovery decisions can provide a basis for vacatur, in this particular case  Hicks' rights were not substantially prejudiced.

*** Arbitration - Collective Bargaining Agreements ***

NY - Arbitrator didn't exceed his authority reducing level of discipline imposed on transit employee for assaulting customer.

New York Transit Auth v. Transport Wkrs Union (New York 02/18/2010)
http://case.lawmemo.com/ny/transit.htm

The New York City Transit authority sought review of a grievance arbitration award reducing the level of discipline imposed upon an employee from discharge to reinstatement without back pay.  The discharge was based on the allegation that the employee assaulted a member of the general public on a subway platform.  In this CPLR 75 proceeding, the trial court vacated the arbitration award, and the appellate court below affirmed.  The court reversed, concluding that the arbitrator did not exceed his authority under the parties' collective bargaining agreement (CBA).  The court reasoned that vacating the arbitration award on the ground asserted by the employer would entail "inapt flirtation with the merits...."

3rd - CBA did not grant union newly-acquired store access; grievance was not arbitrable (2-1).

Rite Aid v. UFCW Union (3rd Cir 02/16/2010)
http://case.lawmemo.com/3/riteaid.pdf

The employer sued the union seeking a declaratory judgment of the prior filed grievances' non-arbitrability. The trial court granted the employer's motion for summary judgment. The 3rd Circuit affirmed.

The issue was whether the union's newly-acquired store access grievance fell within the scope of the arbitration clause by raising a legitimate question of the collective bargaining agreement's (CBA) interpretation. The court found that the recognition clause of the CBA did not describe or purport to include anything resembling the union's claimed right to access newly-acquired stores. Under the observation clause, the court concluded it was not possible to ensure compliance at stores to which the CBA did not apply. The court opined a right of access could not be considered as within the purview of the privileges clause. The court rejected the union's argument that the trial court impermissibly considered the merits of the grievance in making its arbitrability determination; the court joined the 7th and 8th circuits in holding that where the merits and arbitrability questions were inextricably intertwined, a court's arbitrability decision could, of necessity, touch incidentally on the merits.

The DISSENT concluded the recognition clause sufficiently demonstrated that the union's asserted right of store access fell within the "zone of interests" that received protection in the CBA. The dissent also argued that the merits and arbitrability questions were not inextricably intertwined.

MD - Voter-initiated legislation requiring collective bargaining and binding arbitration was unconstitutional.

Wicomico Fraternal Order of Police v. Wicomico Cnty (Maryland Ct App 02/01/2010)
http://case.lawmemo.com/md/wicomico.pdf

The voters in Wicomico County enacted an amendment to the County charter which required the County Council to enact a law providing for collective bargaining with binding arbitration of disputes between the County and the deputies in the Wicomico County Sheriff's Office. The Maryland Court of Special Appeals held the charter amendment to be unconstitutional. The Maryland constitution allows voter-initiated charter amendments only if they are amending the form or structure of government. However, the amendment in this case served as a vehicle for adoption of local legislation, a function which the constitution vests in the County Council.

CA - State correctional supervisors weren't statutorily entitled to pay increases commensurate with those given to subordinates.

Correctional Peace Officers Assoc v. State of California (California Ct App 02/11/2010)
http://case.lawmemo.com/ca/peace1.pdf

An employee association representing state correctional department supervisors sued the state, alleging that it violated California Government Code Section 19849.18 when it refused to grant supervisors the same increases it granted the subordinate correctional officers they supervised.  The state prevailed after a bench trial, and the court affirmed.  The subordinate correctional officers received increases pursuant to an arbitration award, and the supervisors asserted that they were entitled to analogous increases pursuant to Section 19849.18.  The court disagreed, concluding that the state's discretion "allows it to look past each isolated rank-and-file compensation increase and determine the appropriate differential in light of the overall compensation picture...."  The court explained that the state is merely required to maintain "generally equivalent" compensation differentials between supervisory and subordinate correctional officers.

NY - Repeated instances of misconduct and insubordination led to discharge.

Coleman v.Town of Eastchester (New York App Div 02/16/2010)
http://case.lawmemo.com/ny/coleman.htm

The arbitrator found that Coleman committed 18 specifications of misconduct or insubordination which the employer adopted and discharged Coleman. The New York Appellate Division found two of the specifications were improperly granted. The court affirmed the discharge in view of the repeated instances of misconduct and insubordination, and it was not disproportionate to the offense. The union's request for a declaratory judgment for violation of the collective bargaining agreement was remanded to the trial court.

WA - PERC had exclusive jurisdiction over longshore workers' representation dispute.

ILWU v. Port of Tacoma (Washington Ct App 02/02/2010)
http://case.lawmemo.com/wa/ilwu.pdf

The longshore workers' union filed suit, seeking enforcement of an arbitration award relating to a representation dispute.  The trial court dismissed for lack of subject matter jurisdiction.  The court reversed, but concluded that the Public Employment Relations Commission (PERC) had exclusive decision-making authority over which union rightfully performed the disputed work.  The court remanded to the trial court for determination of what other relief the union might be entitled to under the arbitration award.

1st - Employee's LMRA Section 301 complaint against employer for violation of CBA withstood dismissal.

Ramirez-Lebron v. Intl Shipping Agency (1st Cir 01/29/2010)
http://case.lawmemo.com/1/ramirez.pdf

Ramirez-Lebron sued the employer and a group of three employees (G3) pursuant to Section 301 of the Labor Management Relations Act (LMRA) alleging the employer and G3 fraudulently procured an arbitration award granting seniority rights to G3 in breach of the collective bargaining agreement (CBA). The trial court dismissed the complaint for lack of standing and for failure to exhaust contractual remedies under the CBA. The 1st Circuit reversed.

The court stated the issue was not whether Ramirez-Lebron had standing, but rather whether he alleged circumstances sufficient to sustain a cause of action for breach of the CBA against the employer under Section 301. The court agreed that the employer's conduct was suspect because the claim of a sham transaction, in the sense of being both covert and in bad faith, implied a determination to repudiate the relevant provisions of the contract and thereby avoid arbitration. The court held that the factual allegations of Ramirez-Labron's compliant were sufficient to withstand the employer's motion to dismiss.

 *** Arbitration - Individual Arbitration Agreements ***

·         US - Supreme Court will decide whether it is for the court, or an arbitrator, to decide whether agreement to arbitrate is unconscionable.

·         FL - Plaintiff who prevailed in arbitration with former partners is awarded attorney fees and costs pursuant to wage-and-hour fee-shifting statute.

·         NJ - Tort claim barred because of prior arbitration.

*** Arbitration - Collective Bargaining Agreements ***

·         PA - Arbitrator's sanction resulted in denial of due process. (5-2).

·         NJ - Arbitrator's reinstatement of provisional employee upheld.

·         CA - County employer didn't improperly spend public funds for partisan electoral purposes by bargaining for unions' non-support of initiative measure.

·         IL - Civil service board didn't err in declining to give preclusive effect to arbitration award.

·         Dist - Arbitrator erred in rejecting union's grievance, based on union's mistaken citation to irrelevant CBA provision.

·         PA - Arbitrator's award for lost work upheld.

·         MA - Municipal employer was obligated to restore concessions made by employees, after receiving funds enabling it to do so.

·         MT - Political affiliation discrimination claims, asserted under Montana Constitution, were subject to requirements of Montana Human Rights Act.

·         NY - Trial court didn't err in staying arbitration of police officers' union's grievance regarding replacement of healthcare provider.

*** Arbitration - Individual Arbitration Agreements ***

US - Supreme Court will decide whether it is for the court, or an arbitrator, to decide whether agreement to arbitrate is unconscionable.

Rent-A-Center West v. Jackson (Certiorari granted 01/15/2010)
http://www.lawmemo.com/supreme/case/jackson/

Jackson sued under 42 USC Section 1981, claiming race discrimination and retaliation. The trial court granted the employer's motion to dismiss and to compel arbitration. The 9th Circuit (2-1) reversed. The US Supreme Court granted certiorari on January 15 to review the 9th Circuit judgment.

When he was hired, Jackson signed an agreement to arbitrate all future disputes. That agreement provided, "The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable."

Jackson argued that the arbitration agreement was unconscionable, and that the issue of unconscionability must be decided by a court rather than an arbitrator. The 9th Circuit held that "where, as here, a party challenges an arbitration agreement as unconscionable, and thus asserts that he could not meaningfully assent to the agreement, the threshold question of unconscionability is for the court."

FL - Plaintiff who prevailed in arbitration with former partners is awarded attorney fees and costs pursuant to wage-and-hour fee-shifting statute.

BDO Seidman v. Bee (Florida Ct App 01/06/2010)
http://case.lawmemo.com/fl/bdo.pdf

Bee arbitrated a dispute with his former partners, seeking damages for breach of an agreement (entitled "Understanding Regarding Continued Employment") that was separate from his partnership agreement.  The arbitrator awarded Bee about $4 Million plus interest.  Bee sought confirmation of the award by the trial court, along with attorney fees and costs pursuant to a statute applicable to actions for unpaid wages (Section 448.08, Florida Statutes).  The trial court confirmed the award and granted Bee his fees and costs under the statute.  The court affirmed, reasoning that inclusion of the word "employment" in the agreement supported the characterization of the unpaid compensation as "wages."  The court noted, "if LLPs and other partnership entities operating in Florida intend to avoid statutory fee-shifting in compensation disputes involving a Florida partner or partnership, it may be advisable to put that intention in writing."

NJ - Tort claim barred because of prior arbitration.

Brovich v. Hudson News Group (New Jersey App Div 01/12/2010)
http://case.lawmemo.com/nj/brovich.pdf

Brovich sued the employer, asserting a state law hostile environment sexual harassment claim.  He also sued one of the employer's customers, asserting a claim for tortious interference with contractual relationship.  The trial court dismissed both claims.  The court affirmed, concluding that 1) Brovich's sexual harassment claim was untimely filed; and 2) Brovich's tortious interference claim was barred by the doctrine of collateral estoppel, arising from an arbitrator's prior factual determination.

*** Arbitration - Collective Bargaining Agreements ***

PA - Arbitrator's sanction resulted in denial of due process. (5-2).

City of Philadelphia v. Fraternal Order of Police (Pennsylvania 12/29/2009)
http://case.lawmemo.com/pa/philadelphia1.pdf
Dissent: http://case.lawmemo.com/pa/philadelphia1a.pdf
Dissent: http://case.lawmemo.com/pa/philadelphia1b.pdf

The arbitrator reinstated the police officer. The trial court denied review. The Pennsylvania Commonwealth Court reversed, which the Pennsylvania Supreme Court affirmed.

The issue was whether the Commonwealth Court expanded improperly the limited scope of review applicable to an Act 111 grievance arbitration by holding that an arbitrator violated the employer's procedural due process rights when the arbitrator precluded the employer from presenting any evidence because of its failure to comply with a duly issued subpoena. Because the arbitrator found no willful misconduct or bad faith and relied on evidence not of record in this specific arbitration to support his ruling, the court raised the question of whether the employer was afforded a fair opportunity to be heard. Noting that the arbitrator's sanction excluded the employer's entire case-in-chief, the court concluded that the employer was improperly denied due process.

The DISSENT argued that the arbitrator simply imposed a sanction within his discretionary authority, which constituted a final, non-appealable determination of the arbitrator.

NJ - Arbitrator's reinstatement of provisional employee upheld.

Cnty of Hudson v. AFL-CIO (New Jersey App Div 01/15/2010)
http://case.lawmemo.com/nj/hudson.pdf

The employer appealed an arbitration award ordering employee reinstatement. The trial court vacated the arbitration award. The New Jersey Appellate Division reversed.

The employee obtained a provisional appointment limited to twelve months, failed to pass the test for permanent appointment, and was laid-off after six months and before twelve months. The arbitrator interpreted the collective bargaining agreement (CBA) to provide that a provisional employee who completed six months of such employment could only be discharged in accordance with the lay-off procedures of the CBA, since state law did not mandate discharge prior to twelve months. The arbitrator noted that the lay-off procedures were not followed and that management prerogatives were not impermissibly denied or preempted. The court found the arbitrator's interpretation reasonably debatable.

CA - County employer didn't improperly spend public funds for partisan electoral purposes by bargaining for unions' non-support of initiative measure.

Diquisto v. Cnty of Santa Clara (California Ct App 01/22/2010)
http://case.lawmemo.com/ca/diquisto.pdf

Taxpayers sued the county employer, alleging that the employer improperly spent public funds for partisan electoral purposes by bargaining for unions' non-support of an initiative measure.  The measure would have mandated binding arbitration as a means of resolving labor disputes with the employer.  The employer prevailed after a bench trial.  The court affirmed, rejecting the taxpayers' arguments that the employer impermissibly used public funds for campaigning, both at the bargaining table and through a county board of supervisor's email.  The court concluded that 1) California's Meyers-Milias-Brown Act authorized the employer's discussion of binding interest arbitration at the bargaining table; 2) substantial evidence supported the trial court's determination that there was no quid pro quo arrangement of higher pay in exchange for the unions' political silence; and 3) neither the labor negotiations nor the email ran afoul of Stanson v. Mott (1976) 17 Cal.3d. 206.

IL - Civil service board didn't err in declining to give preclusive effect to arbitration award.

Marzano v. Cook Cnty Sheriffs Merit Bd (Illinois Ct App 01/13/2010)
http://case.lawmemo.com/il/marzano.pdf

Marzano appealed a civil service board's decision discharging her from her job as a county corrections officer.  Marzano's discharge arose from her excessive absenteeism, allegedly due to medical problems.  The trial court affirmed the board's decision.  The court affirmed, concluding that 1) the board's findings of fact provided a sufficient basis for determining the existence of "cause" for Marzano's discharge; 2) the board didn't err in declining to give preclusive effect to an arbitration award rendered in proceedings before the Illinois Labor Relations Board (ILRB); and 3) Marzano's due process rights were not violated.

Dist - Arbitrator erred in rejecting union's grievance, based on union's mistaken citation to irrelevant CBA provision.

PERB v. Fraternal Order of Police (Dist of Columbia 01/28/2010)
http://case.lawmemo.com/dist/perb.pdf

The police officers' union filed a grievance, seeking unpaid overtime compensation and liquidated damages.  An arbitrator declined to reach the merits of the dispute, instead finding that no proper grievance had been filed because the union mistakenly cited to an irrelevant provision in the parties' collective bargaining agreement (CBA).  The Public Employee Relations Board (PERB) affirmed, but the trial court reversed.  The court affirmed the trial court's decision.  The arbitrator had characterized the union's citation error as "substantive" rather than "technical."  The court reasoned that the arbitrator's characterization "elevates form over substance contrary to the public policy favoring arbitration where the parties have agreed to it."  The court further reasoned that "PERB's failure likewise to let this matter proceed to arbitration despite [the employer's] full awareness of the nature of the ... grievance requires us to set aside its decision."

PA - Arbitrator's award for lost work upheld.

Pennsylvania Turnpike Commn v. Teamsters (Pennsylvania Cmwlth Ct 01/28/2010)
http://case.lawmemo.com/pa/turnpike.pdf

The employer petitioned for review of an arbitration award for lost work opportunities. The Pennsylvania Commonwealth Court affirmed.

The dispute related to the use of supplemental workers in violation of the collective bargaining agreement (CBA). The court found (1) the arbitrator's award of back pay was within the arbitrator's discretion, (2) the arbitrator reconciled two provisions of the CBA dealing with use of supplemental workers in a rational way, (3) the arbitrator's decision was based upon clear and unambiguous contract language that did not allow for a different interpretation for one local union, (4) the arbitrator gave the memo and testimony regarding implementation of new contract language their proper consideration and did not thereby modify any provision of the CBA, and (5) the arbitrator correctly refused to modify the CBA to expand its use of supplemental employees beyond the express limits set forth in the CBA.

MA - Municipal employer was obligated to restore concessions made by employees, after receiving funds enabling it to do so.

City of Lynn v. Lynn Police Assoc (Massachusetts 01/06/2010)
http://case.lawmemo.com/ma/lynn1.htm

The municipal employer sought to vacate an arbitration award directing it to restore wages and benefits voluntarily relinquished by the police officers' union.  Those concessions had been made in a memorandum of agreement (MOA) modifying the parties' collective bargaining agreement, which was entered into when the employer was on the verge of bankruptcy.  The trial court granted judgment on the pleadings in the union's favor, and the appellate court below affirmed.  The court affirmed.  The court rejected the argument that compliance with the arbitration award would violate the "Lynn Bailout Act" (St. 1985, c. 8).  The court declined to disturb the arbitrator's finding that, by failing to restore the concessions to the union members after receiving certain grant funds, the employer violated the MOA.

MT - Political affiliation discrimination claims, asserted under Montana Constitution, were subject to requirements of Montana Human Rights Act.

Edwards v. Cascade Cnty Sheriff's Dept (Montana 12/31/2009)
http://case.lawmemo.com/mt/edwards.pdf

Sheriff's Deputies and their superiors sued the employer, asserting (among other things) state law claims for political affiliation discrimination and violation of wage-and-hour laws.  The political affiliation discrimination claims were asserted under both the Montana state constitution and the Montana Human Rights Act (MHRA).  The trial court dismissed the majority of the employees' claims.  The court affirmed in part and reversed in part, concluding that 1) the constitutional political affiliation discrimination claims were barred, since they fell within the scope of the MHRA and the employees failed to exhaust their administrative remedies via the filing of charges with the Montana Human Rights Bureau (HRB); and 2) the collective bargaining agreement (CBA) between the deputies' bargaining unit and the employer did not "clearly and unmistakably" cover the deputies' statutory discrimination and wage claims, and the deputies were thus not required to engage in grievance arbitration of those claims prior to filing suit.

NY - Trial court didn't err in staying arbitration of police officers' union's grievance regarding replacement of healthcare provider.

Correctional Officers Assoc v. Dept of Civil Serv (New York App Div 12/31/2009)
http://case.lawmemo.com/ny/police.htm

The police officers' union appealed the trial court's judgment staying grievance arbitration of a dispute about healthcare providers.  The union argued that the employer could not substitute a new healthcare provider in place of the prior one, without approval of the "Joint Committee on Health and Dental Benefits."  The court rejected that argument, stating "[t]o allow a Joint Committee to make the determinative decision in awarding a state service contract would constitute an impermissible delegation of the state's obligations in letting contracts."  The court concluded that "arbitration of this grievance would violate state statutes and public policy and there is no remedy that would avoid that result if [the union] prevailed in arbitration."

*** Arbitration - Individual Arbitration Agreements ***

·         US - Supreme Court argument on whether imposing class arbitration on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act.

·         WA - Arbitration not compelled; employment agreement was terminated before employee was discharged, and agreement to arbitrate did not continue and cannot be implied.

*** Arbitration - Collective Bargaining Agreements ***

·         US - Pre-arbitration conference is not a jurisdictional prerequisite to National Railway Adjustment Board arbitration.

·         DC - Court upholds arbitrator's "probably erroneous" decision that jurisdictional dispute was arbitrable (2-1).

·         OH - "Manifest disregard of the law" didn't constitute a basis for vacating grievance arbitration award.

·         8th - Dispute as to employer withdrawal from multiemployer pension plan is subject to mandatory arbitration.

·         NY - Trial court erred in granting employer's application to stay grievance arbitration.

·         RI - Firefighter with prostate cancer entitled to injured on-duty benefits.

·         OH - Trial court lacked jurisdiction to vacate arbitration award; motion to vacate was untimely.

*** Arbitration - Individual Arbitration Agreements ***

US - Supreme Court argument on whether imposing class arbitration on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act.

Stolt-Nielsen v. AnimalFeeds (US Supreme Ct oral argument 12/09/2009)
Details, briefs: http://www.lawmemo.com/supreme/case/Stolt-Nielsen/
Argument transcript: http://www.lawmemo.com/supreme/case/Stolt-Nielsen/tx.pdf

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 was tasked with deciding whether that silence permitted or precluded class arbitration, and issued an award deciding that the contracts permit class arbitration. A United States District Court vacated the award on the ground that it was made in manifest disregard of the law. The 2nd Circuit reversed, finding 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 to review the 2nd Circuit judgment. The formal issue is: "Whether imposing class arbitration on parties whose arbitration clauses are silent on that issue is consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq."

WA - Arbitration not compelled; employment agreement was terminated before employee was discharged, and agreement to arbitrate did not continue and cannot be implied.

Weiss v. Lonnquist (Washington Ct App 12/14/2009)
http://case.lawmemo.com/wa/weiss.pdf

After Weiss was discharged, she sued her former employer under a number of theories. The employer moved to compel arbitration; the trial court denied the motion; the Washington Court of Appeals affirmed.

Weiss had been employed under a written contract that contained an arbitration clause. The employer terminated the agreement but continued to employ Weiss. Later the employer discharged Weiss.

(1) The court held that Weiss was not obligated to arbitrate under the terms of the written agreement because it had been terminated and her claim arose more than a year later. (2) The court also held that there was no implied agreement to arbitrate. Although it can sometimes be implied that an employee continues to work under the same terms that were contained in an expired agreement, that implication was not proper here. The terms of employment after the agreement expired were significantly different than they had been, so none of the previous terms (including the agreement to arbitrate) continued.

*** Arbitration - Collective Bargaining Agreements ***

US - Pre-arbitration conference is not a jurisdictional prerequisite to National Railway Adjustment Board arbitration.

Union Pacific Railroad v. Brhd of Locomotive Engineers (US Supreme Ct 12/08/2009)
http://case.lawmemo.com/us/union.pdf

Five railway employees' grievances went to arbitration before a National Railway Adjustment Board panel. The panel dismissed the cases for lack of jurisdiction, because there was no proof that the parties had engaged in the statutorily-required pre-arbitration conference. The district court agreed. The 7th Circuit reversed, on the ground that the arbitration panel denied the Union constitutional due process.

The US Supreme Court unanimously affirmed, for different reasons. The Court held that the 7th Circuit erred by resolving the case on constitutional rather than statutory grounds. The Court found that the statutory requirement of a pre-arbitration conference was not jurisdictional. Therefore, the arbitration panel was wrong when it refused to adjudicate the grievances on the false premise that it lacked jurisdiction. The requirement to have a conference is a "claims-processing rule" and does not go to the panel's jurisdiction. As the Court put it, "By refusing to adjudicate cases on the false premise that it lacked power to hear them, the ... panel failed 'to conform, or confine itself' to the jurisdiction Congress gave it."

DC - Court upholds arbitrator's "probably erroneous" decision that jurisdictional dispute was arbitrable (2-1).

National Postal Union v. American Postal Union (DC Cir 12/18/2009)
http://case.lawmemo.com/dc/postal.pdf

Although the Postal Service had assigned certain work to the National Postal Union, the American Postal Union claimed the work and sought arbitration. An agreement between the two unions and the Postal Service provided that such disputes were arbitrable, except that work assignments "as they currently exist" could not be challenged. Because the assignment was pre-existing, the National Union and the Postal Service opposed arbitration. The three parties agreed to present the arbitrability issue to the arbitrator, who decided that the dispute was arbitrable and awarded the work to the American Postal Union. The district court upheld the arbitrator's decision even though it was "probably erroneous."

The DC Circuit affirmed by a 2 to 1 vote. The court said that the highly deferential approach to an arbitrator's decision on the merits of a dispute applies equally to a decision on arbitrability when that issue was submitted to arbitration. The test is whether the arbitrator was "even arguably construing or applying the contract." Although the arbitrator "should have ruled that the grievances ... were not arbitrable," the arbitrator used a continuing violation theory, and this was "arguably construing or applying the contract."

The DISSENT argued that "the arbitrator based his decision entirely on his external legal theories relating to 'continuing violation' without regard to the express terms of the parties' agreement."

OH - "Manifest disregard of the law" didn't constitute a basis for vacating grievance arbitration award.

City of Cleveland v. IBEW (Ohio Ct App 11/25/2009)
http://case.lawmemo.com/oh/cleveland.pdf

The municipal employer appealed from the trial court's refusal to vacate a grievance arbitration award reinstating an employee.  The employee had been discharged for allegedly making threatening statements about two co-workers to a third co-worker with whom she had a personal relationship, but the trial court determined that the third co-worker lacked credibility.  The court affirmed.  The court refused to apply the "manifest disregard of the law" standard, noting that Ohio courts have previously rejected "manifest disregard of the law" as a basis for disturbing an arbitration award.  The court rejected the employer's challenge to the trial court's credibility determination, noting "[t]his is a factual conclusion that is beyond the scope of what the city can challenge in seeking to vacate an arbitration award."

8th - Dispute as to employer withdrawal from multiemployer pension plan is subject to mandatory arbitration.

American Cleaners v. Textile Union (8th Cir 12/16/2009)
http://case.lawmemo.com/8/amer.pdf

The employer sought a declaratory judgment that it was not obligated to make payments to a union-based pension fund. The trial court re-characterized the claim as one for a declaration that the employer was not subject to pension payment liability for withdrawal from the fund, and held that such a dispute is subject to mandatory arbitration under the Multiemployer Pension Plan Amendments Act (MPPAA), 29 USC Section 1401.

Although the employer argued that its claims were based on the Labor Management Relations Act rather than the MPPAA, the 8th Circuit affirmed, finding that this was "a quarrel over withdrawal liability" which makes the dispute subject to mandatory arbitration.

NY - Trial court erred in granting employer's application to stay grievance arbitration.

Capital Dist Transp Auth v. Planz (New York App Div 12/24/2009)
http://case.lawmemo.com/ny/capitol.htm

The public employees' union appealed the trial court's order staying grievance arbitration of Planz's discharge.  The court reversed, concluding that the trial court erred in staying arbitration.  The court noted that arbitration of the dispute was permissible under the Taylor Law, that the arbitration clause in the parties' collective bargaining agreement was broad, and that the issue in dispute was not specifically and unambiguously excluded from the scope of the arbitration clause.

RI - Firefighter with prostate cancer entitled to injured on-duty benefits.

City of East Providence v. IAFF (Rhode Island 11/20/2009)
http://case.lawmemo.com/ri/providence.pdf

The employer appealed the decision of the arbitrator restoring the employee's sick leave and granting injured on-duty (IOD) benefits pursuant to the "Cancer Benefits for Fire Fighters" statute (GL 1956 chapter 19.1 of title 45). The trial court confirmed the award. The Rhode Island Supreme Court affirmed.

The only issue on appeal was whether the employee's leave for treatment of prostate cancer should have been deducted from his sick leave reserve or whether that time should have been restored because his leave fell within the IOD statute. The court stated it was evident that the General Assembly intended to ensure that firefighters diagnosed with cancer receive injured on-duty benefits in accordance with the IOD statute. The court found that the statute's use of the phrase "any fire fighter" was all inclusive. The court concluded that the arbitrator did not exceed his authority in finding that the employer was obligated to provide injured on-duty benefits to firefighters who were diagnosed with cancer.

OH - Trial court lacked jurisdiction to vacate arbitration award; motion to vacate was untimely.

City of Cleveland v. Laborers Intnl Union (Ohio Ct App 12/03/2009)
http://case.lawmemo.com/oh/cleveland1.pdf

The arbitrator awarded the union back pay and overtime pay for violation of the collective bargaining agreement (CBA) by the employer's failure to meet with the union before hiring a private contractor. The trial court denied the employer's motion to vacate the arbitration award. The Ohio Court of Appeal affirmed. The court found the trial court did not have jurisdiction because the employer did not serve the motion to vacate within three months as required by R.C. 2711.13.

*** Arbitration - Individual Arbitration Agreements ***

·         9th – Unconscionability was for the trial court to decide, notwithstanding arbitration agreement’s provision to the contrary.

·         5th – Employee’s state law claims relating to rape by co-workers didn’t fall within scope of arbitration agreement.

·         WI - Insurance agent's claim for termination commissions was subject to arbitration; effect of a previous judgment to be decided by the arbitrator.

·         TX - Arbitration agreement with employee was enforceable after operating agreement between management company and employer ended.

·         MA – Massachusetts Wage Act claims are arbitrable.

·         WV - Arbitration agreement was valid contract of adhesion.

·         WA - Arbitration agreement didn't apply to claim arising prior to employee's term of employment.

*** Arbitration - Collective Bargaining Agreements ***

·         US - Supreme Court argument on whether courts can set aside final arbitration awards by National Railroad Adjustment Board for alleged violations of due process.

·         WA - Court adopts "public policy exception" as a basis for vacating grievance arbitration awards.

·         2nd - Successor employer compelled to arbitrate (2-1).

·         CA - Arbitrator, not trial court, to initially determine statutory preemption of union's grievance.

·         2nd - Trial court's decision that jurisdictional dispute was not arbitrable upheld.

·         8th - Employee's judgment against union for portion of arbitrator's award of back pay reversed.

·         8th - Common law claims were preempted and statutory claims were not under section 301 of LMRA.

·         PA - PLRB's interpretation of Section 805 of Public Employe Relations Act was reasonable.

·         NY - Entire interest arbitration award is vacated due to error as to one part which affected the entire award.

·         CA - Amendment to Meyers-Milias-Brown Act may be applied to pending cases.

·         CT - Arbitration award was ambiguous, precluding review on appeal.

·         9th - Seamen's Wage Act claims are subject to arbitration.

·         MA - Union entitled to presumption of arbitrability.

*** Arbitration - Individual Arbitration Agreements ***

9th – Unconscionability was for the trial court to decide, notwithstanding arbitration agreement’s provision to the contrary.

Jackson v. Rent-A-Center (9th Cir 09/09/2009)
http://case.lawmemo.com/9/jackson.pdf

Jackson sued the employer, asserting race discrimination and retaliation claims under 42 USC Section 1981.  The trial court dismissed the claims and compelled arbitration.  The 9th Circuit reversed.

Jackson argued that the parties’ arbitration agreement was unconscionable, and that the trial court should decide the issue in spite of the fact that the agreement assigned that task to the arbitrator.  The trial court found that the issue was one for the arbitrator, but also found (as an alternative ground for dismissal) that the agreement was not unconscionable even if it were to decide the issue of unconscionability.  The court disagreed with both of the trial court’s findings.

The court stated, “we hold that where a party specifically challenges arbitration provisions as unconscionable and hence invalid, whether the arbitration provisions are unconscionable is an issue for the court to determine, applying the relevant state contract law principles.”  The court noted, “[t]his rule applies even where the agreement’s express terms delegate that determination to the arbitrator.”  The court thus concluded that the trial court erred in determining that an arbitrator should consider the issue of unconscionability.  With respect to the trial court’s alternative ground for dismissal, the court concluded that the trial court erred in ignoring some of Jackson’s arguments regarding substantive arbitrability.

5th – Employee’s state law claims relating to rape by co-workers didn’t fall within scope of arbitration agreement.

Jones v. Halliburton (5th Cir 09/16/2009)
http://case.lawmemo.com/5/jones.pdf

Jones sued the employer, asserting (among other things) a claim for sexual harassment under Title VII and state law claims for assault and battery, intentional infliction of emotional distress, negligent hiring/retention/supervision, and false imprisonment.  Her claims arose from an alleged gang rape in her bedroom by fellow employees while working for the employer as a contractor in Iraq.  The trial court denied the employer’s motion to compel arbitration of the above-described state law claims, and ordered the remaining claims to arbitration.  The 5th Circuit affirmed, concluding that the state law claims did not fall within the scope of the parties’ arbitration agreement.  The court noted that “[t]he case law is divided on the arbitrability, under similar arbitration clauses, of employees’ claims premised on sexual assault.”  The court agreed with the trial court that “[p]laintiff’s bedroom should [not] be considered the workplace, even though her housing was provided by her employer.”

WI - Insurance agent's claim for termination commissions was subject to arbitration; effect of a previous judgment to be decided by the arbitrator.

Cirilli v. Country Insurance (Wisconsin Ct App 10/28/2009)
http://case.lawmemo.com/wi/cirilli.pdf

Cirilli sued the employer for insurance commissions allegedly unpaid at termination of his employment.  The trial court denied the employer's motion to compel arbitration.  The Wisconsin Court of Appeals reversed.

(1) The court determined that Cirilli's claim fell within the scope of the employer's arbitration agreement.  The court rejected the argument that the employer's release of any claims or defenses to non-payment of commissions, provided in a settlement and release resolving prior litigation, rendered the employer's arbitration agreement inapplicable.  The court reasoned that determination of the issue whether the employer had released any claims or defenses "requires an analysis of the merits of the dispute, resolution of which is to be considered exclusively in arbitration."

(2) Cirilli also asked the court to apply issue preclusion based on a litigation judgment (involving another plaintiff) which incorporated an arbitrator's finding that the releases barred all of the employer's defenses to payment of the termination commissions. The court held that the effect of the prior judgment went to the merits of the dispute, and is an issue to be decided in arbitration rather than by the court.

TX - Arbitration agreement with employee was enforceable after operating agreement between management company and employer ended.

In re Polymerica (Texas 10/23/2009)
http://case.lawmemo.com/tx/polyamericallc.pdf

Employee Soltero sued the employer for wrongful discharge based on national origin and for retaliation for reporting sexual harassment. The trial court denied the employer's motion to compel arbitration. The Texas Court of Appeals granted mandamus relief for the time period a management company handled the employer's human resources department and denied relief otherwise. The Texas Supreme Court granted mandamus without limitations.

Soltero signed a dispute resolution plan (DRP) and an employee handbook which required arbitration of all disputes with the management company and the employer. The employer ended its operating agreement with the management company before Soltero's discharge. The court distinguished In re Neutral Posture, Inc., 135 SW3d 725 (2003), (which the court of appeals relied on to order trial of claims post-dating the operating agreement) as requiring arbitration during a set five-year period, where the claim was filed after the expiration of the five years. The court stated in this case there was no time limitation in the DRP, nor was there a condition that the operating agreement must be in existence to enforce the DRP.

MA – Massachusetts Wage Act claims are arbitrable.

Dixon v. Perry & Slesnick (Massachusetts Ct App 09/28/2009)
http://case.lawmemo.com/ma/dixon.htm

Dixon sued the employer, asserting (among other things) a Massachusetts Wage Act claim for unpaid wages.  The trial court denied the employer’s motion to compel arbitration.  The court reversed.  As a matter of first impression, the court held that Wage Act claims are arbitrable.  The court stated, “[w]e discern nothing in the language of [G.L. c. 149] Section 148 or Section 150 that would lead us to conclude otherwise.”  The court observed, “[w]hile it does not appear that a reported Massachusetts case has ever considered whether an aggrieved party can be compelled to arbitrate a Wage Act claim, other statutory claims have been held to be subject to arbitration.”  Noting that “[the issue] whether a particular claim can be arbitrated is subject to a case-by-case analysis” the court determined ultimately that Dixon’s claim was subject to arbitration.

WV - Arbitration agreement was valid contract of adhesion.

State ex rel Clites v. Clawges (West Virginia 10/13/2009)
http://case.lawmemo.com/wv/clites.pdf

Clites sued the employer for violation of the West Virginia Human Rights Act (WVHRA) alleging sexual harassment and retaliatory discharge. The trial court granted the employer's motion for a stay pending arbitration. The West Virginia Supreme Court of Appeals affirmed, denying Clites' writ of prohibition.

Acknowledging that the Federal Arbitration Act (FAA) preempts state law that would invalidate or undercut the enforceability of arbitration agreements, the court stated that the issue of whether an arbitration agreement was a valid contract was a matter of state contract law and capable of state judicial review. The court agreed with the trial court that the arbitration agreement was a contract of adhesion, finding that the agreement was boiler-plate language not subject to negotiation. Considering the record as a whole, including the employer's stipulation that the arbitration would take place in Clites' city of employment and that it would pay all costs of expenses that would not be incurred by Clites in court, the court did not find the arbitration agreement to be unconscionable.

WA - Arbitration agreement didn't apply to claim arising prior to employee's term of employment.

Davis v. General Dynamics Land Systems (Washington Ct App 10/13/2009)
http://case.lawmemo.com/wa/davis.pdf

Davis sued the employer for race discrimination.  Davis' claim arose from his term as a contract worker with the employer, prior to his date of employment.  The trial court dismissed, based on an arbitration agreement signed by Davis when he was hired as an employee.  The court reversed, concluding that the parties' arbitration agreement by its "plain terms" did not apply to claims arising prior to Davis' term of employment.

*** Arbitration - Collective Bargaining Agreements ***

US - Supreme Court argument on whether courts can set aside final arbitration awards by National Railroad Adjustment Board for alleged violations of due process.

Union Pacific v. Brotherhood of Locomotive Engineers (US Supreme Ct oral argument 10/07/2009)
http://www.lawmemo.com/supreme/case/UnionPacific

Five employees of the Union Pacific Railroad filed claims through their Union (the Brotherhood of Locomotive Engineers and Trainmen) contesting a discharge or discipline imposed by the Railroad. Rather than resolving the dispute over the propriety of the discipline, the National Railroad Adjustment Board concluded that the Union had failed to submit conclusive evidence that the parties had held a conference to attempt to resolve the dispute - a procedural prerequisite to arbitration - and thus 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 the parties must conference, and that they must submit evidence of that fact, it heretofore 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 evidence of conferencing to be presented in the on-property record, a requirement not clearly enunciated in the statutes, regulations, or the collective bargaining agreement of the parties. Consequently, the 7th Circuit reversed.

The US Supreme Court granted certiorari to review the 7th Circuit judgment.

WA - Court adopts "public policy exception" as a basis for vacating grievance arbitration awards.

Kitsap Co Deputy Sheriff's Guild v. Kitsap Co (Washington 10/29/2009)
http://case.lawmemo.com/wa/kitsapco.pdf
Dissent: http://case.lawmemo.com/wa/kitsapcodissent.pdf

The public employer appealed the trial court's decision declining to vacate a grievance arbitration award.  The award reinstated a deputy discharged for alleged misconduct (including untruthfulness).  The appellate court below reversed, based on its determination that the arbitration award violated public policy.  The court reversed.

The court had not yet explicitly adopted the public policy exception as a basis for vacating a grievance arbitration award.  The court took that opportunity here, concluding "[w]e now join the federal and other state courts in adopting the narrow public policy exception to enforcing arbitration decisions."  The court noted that several lower appellate court decisions have followed or made reference to the public policy exception.  Applying that exception to the facts of this case, the court concluded ultimately that the arbitration award reinstating the deputy didn't violate an explicit, well defined, and dominant public policy.  The court noted that "Washington statutes prohibit making false statements to a public officer but there is no statute or other explicit, well defined, and dominant expression of public policy that requires the automatic termination of an officer found to have been untruthful."

Three DISSENTERS argued that the award did violate public policy.

2nd - Successor employer compelled to arbitrate (2-1).

UFCW v. Meridian (2nd Cir 10/02/2009)
http://case.lawmemo.com/2/ufcw.pdf

The union sued the successor employer seeking to compel arbitration under the terms of the collective bargaining agreement (CBA) with respect to contributions to the union's health and welfare fund. The trial court ordered the employer to arbitrate. The 2nd Circuit affirmed.

The court stated the key factor in its analysis was not present in any of the prior jurisprudence on this subject: at all times from the time that the employees represented by the union began to work at the terminal (including when the prior employer was the employer of record), those employees were essentially working for the successor employer, which had the contract to clean the terminal; the successor employer retained the prior employer - a shop that employed union workers pursuant to an existing CBA - to do the successor's work. The court rejected the 3rd Circuit's analysis in AmeriSteel Corp. v International Brotherhood of Teamsters, 267 F3d 264 (2001), (holding AmeriSteel was not bound by the substantive terms of the CBA and no arbitration award could receive judicial sanction), because it eviscerated the protection of employees represented by incumbent unions. The court concluded that the trial court's order of arbitration was appropriate in this case in that it required the commencement of an arbitration that would decide two questions: first, the extent to which the successor employer was bound by the particular provisions of the CBA at issue, and second, if the successor employer was bound, then the nature of the relief available to the union.

The DISSENT argued that the majority confused the circumstances in which a "successor employer" had a duty to recognize and bargain with a labor union, with the much more limited circumstances in which that employer was bound to arbitrate with a union under a CBA to which it had not agreed.

CA - Arbitrator, not trial court, to initially determine statutory preemption of union's grievance.

United Teachers v. Los Angeles School (California Ct App 09/17/2009)
http://case.lawmemo.com/ca/unitedteachers.pdf

The union petitioned to compel arbitration with the employer for violation of the collective bargaining agreement (CBA) concerning charter school approval. The trial court denied the petition finding that the Ed Code section 47611.5, subdivision (e) preempted the CBA. The California Court of Appeal reversed.

Section 47611.5, subdivision (e) provided that the approval of a charter school petition shall not be controlled by a CBA. The court stated, at this stage, its determination and that of the trial court was limited to whether there was a valid agreement to arbitrate. The court found that there was a valid CBA, that the merits of the dispute must be resolved in the first instance by the arbitrator, and that the arbitrator was authorized to resolve statutory claims. The court distinguished Board of Education v. Round Valley Teachers Assn., 13 Cal4th 269 (1996), as only holding that an arbitration award was subject to judicial review on preemption grounds because the arbitrator exceeded his powers, but did not address the issue of nor hold that a statutory defense was not subject, in the first instance, to arbitration. The court concluded that if the arbitrator decided that the employer violated the CBA. it could than challenge the award in the trial court based on its defense that section 47611.5, subdivision (e) preempted the union's grievance rights.

2nd - Trial court's decision that jurisdictional dispute was not arbitrable upheld.

CIEA v. Laborers International Union (2nd Cir 09/11/2009)
http://caselaw.lp.findlaw.com/data2/circs/2nd/084647p.pdf

CIEA sought a stay of arbitration in a dispute arising under collective bargaining agreements (CBA) with two unions. The trial court stayed arbitration. The 2nd Circuit affirmed, finding a classic jurisdictional dispute between two unions seeking to perform the same work for an employer. The court concluded the laborers union had not performed caisson work when a job required the use of steel pipes. The court rejected the laborers union's argument that an arbitrator should decide the issue of arbitrability where the CBA lacked language indicating the parties agreed to settle disputes of arbitrability through arbitration.

8th - Employee's judgment against union for portion of arbitrator's award of back pay reversed.

Turner v. United Steelworkers (8th Cir 09/11/2009)
http://case.lawmemo.com/8/turner.pdf

Turner sued the union seeking confirmation of an arbitrator's award for a portion of back pay allegedly imposed against the union. The trial court granted Turner's motion for summary judgment and granted judgment in the amount of $21,723.40 plus interest. The 8th Circuit reversed. Because the lengthy delay in moving the proceeding to arbitration was not the fault of the employer, the arbitrator's opinion stated that the employer "shall only be required to pay back pay from September 10, 2005 to the date she is reinstated. The Union shall be responsible for the back pay from January 21, 2005 through and including September 9, 2005." Considering that the collective bargaining agreement (CBA) and the issues submitted to the arbitrator did not contemplate a remedial claim against the union, the court reversed the monetary judgment, noting that a serious conflict of interest might result from imposing a monetary obligation on the union.

8th - Common law claims were preempted and statutory claims were not under section 301 of LMRA.

Williams v. NFL (8th Cir 09/11/2009)
http://case.lawmemo.com/8/williams.pdf

Williams sued the employers' association (National Football League - NFL) alleging violations of Minnesota common law. The players association sued the NFL alleging breach of contract under section 301 of the Labor Management Relations Act (LMRA), asserting violation of Minnesota's Drug and Alcohol Testing in the Workplace Act (DATWA) and Minnesota's Consumable Products Act (CPA), and moving to vacate the arbitration award upholding Williams' suspension. The trial court ruled that (1) Minnesota's common law claims were preempted by section 301, (2) the Minnesota statutory claims were not preempted by section 301, and (3) the arbitration award was confirmed. The 8th Circuit affirmed, stating (1) the common law claims required examination of the collective bargaining agreement (CBA), (2) the DATWA and CPA statutory claims did not require examination of the CBA, and (3) the arguments for vacating the arbitration award were not sufficient to overcome the deference granted such awards.

PA - PLRB's interpretation of Section 805 of Public Employe Relations Act was reasonable.

City of Philadelphia v. Pennsylvania Labor Rel Bd (Pennsylvania Cmwlth Ct 10/20/2009)
http://case.lawmemo.com/pa/philadelphia.pdf

The union representing municipal guards and other correctional employees filed an unfair labor practice charge with the Pennsylvania Labor Relations Board (PLRB). The union alleged that the city committed an unfair labor practice by refusing to engage in interest arbitration pursuant to Section 805 of the Public Employe Relations Act (PERA).  The PLRB issued an order directing the city to engage in interest arbitration.  The court affirmed, on the basis that Section 805 is ambiguous and the PLRB "interpreted section 805 in a manner that fulfills its objective and ... is reasonable."

NY - Entire interest arbitration award is vacated due to error as to one part which affected the entire award.

Buffalo Firefighters v. Masiello (New York 10/15/2009)
http://case.lawmemo.com/ny/buffalo.htm

Following an interest arbitration between the firefighters union and the city, the Appellate Division concluded that the issue of health insurance was not an issue before the arbitration panel, because the parties had agreed that the City would withdraw its sole health insurance proposal from the panel's consideration. Thus, the Appellate Division appropriately vacated that part of the award.

The New York Court of Appeals held that the entire arbitration award should be vacated, including the portion dealing with wages. This was because the arbitration panel did not consider the issue of wages in isolation, and the separate portions of the award were so interdependent that no part of it could be vacated without affecting the merits of the remainder.

CA - Amendment to Meyers-Milias-Brown Act may be applied to pending cases.

City of San Jose v. IAFF (California Ct App 10/14/2009)
http://case.lawmemo.com/ca/sanjose.pdf

California Senate Bill 1296 amended Government Code Section 3509 of the Meyers-Milias-Brown Act, such that "superior courts shall have exclusive jurisdiction over actions involving interest arbitration...when the action involves an employee organization that represents firefighters, as defined in Section 3251."  The court held that this amendment is "properly characterized as procedural" and may be applied to pending cases.  The court also concluded that application of the amendment to pending cases is appropriate because it acts as a repeal of a statutory grant of jurisdiction to the Public Employment Relations Board (PERB).

CT - Arbitration award was ambiguous, precluding review on appeal.

State v. SEIU (Connecticut Ct App 10/20/2009)
http://case.lawmemo.com/ct/seiu.pdf

The public employer appealed from the trial court's confirmation of a grievance arbitration award rendered in the union's favor.  The court reversed, concluding that the award's ambiguity precluded its evaluation on appeal.  The court remanded, with instructions "to remand the matter to the arbitrator to answer the first question in the parties' submission in the affirmative or the negative."

9th - Seamen's Wage Act claims are subject to arbitration.

Balen v. Holland America Line (9th Cir 10/02/2009)
http://case.lawmemo.com/9/balen.pdf

Balen, a Filipino beverage attendant on a ship, sued his former employer claiming a violation of the Seamen's Wage Act. The trial court ordered the claim to be arbitrated; the 9th Circuit affirmed.

Balen argued that Seamen's Wage Act claims are not subject to arbitration, and that they are exempt as "contracts of employment of seamen" under the Federal Arbitration Act. However, the court held that such claims are subject to arbitration pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Balen was subject to an arbitration provision in a collective bargaining agreement between his union and employer, and this agreement was enforceable under the UN Convention.

MA - Union entitled to presumption of arbitrability.

Sheriff of Suffolk County v. AFSCME (Massachusetts Ct App 10/01/2009)
http://case.lawmemo.com/ma/sheriff.htm

The employer sought a permanent stay of arbitration of a grievance by a union alleging that the collective bargaining agreement (CBA) precluded arbitration of shift changes and scheduled days off. The trial court granted the employer's motion for summary judgment. The Massachusetts Appeals Court reversed. The issue on appeal was whether the employer overcame the presumption of arbitrability. The court answered no. Considering the entire CBA, which provided that (1) the union's allegation was sufficient to trigger the grievance procedure of article VII, (2) the discipline and discharge article VI and the drug testing article XXII limited the employer's managerial powers, and (3) the probation and promotion article XXI excluded the employer's decisions from arbitration; the court concluded the union was entitled to the presumption of arbitrability.