Appeal order denying arbitration within 30 days
August 14, 2008 by Ross Runkel at LawMemo
Garland Snider sued the employer, asserting claims for breach of contract and violation of state wage and hour laws.
The employer petitioned to compel arbitration, but the petition was denied by the trial court. The matter proceeded to a jury trial, where Snider prevailed. Judgment was entered in Snider's favor, and the employer appealed.
The appeal was timely filed with respect to the final judgment, but not with respect to the order denying the petition to compel arbitration.
The court held - Snider v. Production Chemical (Oregon Ct App 08/13/2008) - that pursuant to ORS 36.730
"an appeal from an order denying a petition to compel arbitration ... must be commenced within 30 days after the order is entered in the trial court register."
Since the employer's appeal was untimely as to the trial court's order denying the petition to compel arbitration, the court concluded it lacked jurisdiction to consider that issue. The court rejected other issues as unpreserved.
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USERRA claims are subject to arbitration
August 13, 2008 by Ross Runkel at LawMemo
The 6th Circuit has decided that claimed violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) are subject to arbitration.
Landis v. Pinnacle Eye Care (6th Cir 08/11/2008)
Timothy Landis sued the employer, asserting (among other things) a claim for violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA).
The trial court granted the employer's motion to stay the case and compel arbitration.
The 6th Circuit affirmed, holding that USERRA claims are subject to arbitration.
The court noted that the 5th Circuit has come to the same conclusion, and cited with approval that circuit's decision in Garrett v. Circuit City Stores, Inc., 449 F3d 672 (5th Cir 2006).
The court reasoned that
1) nothing in USERRA's statutory language or legislative history demonstrates a Congressional intent to preclude arbitration; and2) there is no inherent conflict between arbitration and USERRA's underlying structure and purpose.
My view: Hardly a surprise. The court followed the US Supreme Court's analytical method in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).
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FMCS will change rules
August 13, 2008 by Ross Runkel at LawMemo
FMCS - the Federal Mediation and Conciliation Service - plans to change some of its rules relating to arbitration services, and invites public comment on or before October 6, 2008. [Federal Register Notice]
In a nutshell, here are the changes:
- Increase the listing fee FMCS charges arbitrators - from $100 to $150.
- Change procedure regarding complaints about arbitrators.
- Change procedures for arbitrators on inactive status.
- Change procedure relating to parties requesting arbitration panels. These are the lengthiest changes, and mostly deal with (a) situations where the collective bargaining agreement requires a joint request and (b) situations in which each party advises FMCS of its order of preference by numbering each name on a panel.
My view: These are incremental changes designed to improve the operations of the FMCS, an agency that already is awesomely efficient and effective.
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Late filing divested arbitrator of jurisdiction
August 12, 2008 by Ross Runkel at LawMemo
It has long been an axiom of arbitration law that it is for the arbitrator - not the court - to decide whether a union's grievance was filed on time.
However, the arbitrator's decision on that question is still subject to some limited judicial review to decide whether the arbitrator's decision "draws its essence" from the collective bargaining agreement.
In City of Fairfield v. AFSCME (Ohio Ct Appeals 08/04/2008) the Union filed a grievance claiming that the City had assigned the duties of two bargaining unit positions to non-bargaining unit employees.
The collective bargaining agreement had a three-day limit for filing grievances, and the grievance was filed more than three days after the City's decision was made and came to the Union's attention.
However, the arbitrator granted the grievance. The arbitrator held that this was a "continuing violation" and that each day the City allowed the duties to be performed by non-bargaining unit employees was a new violation. Therefore, the arbitrator decided that the grievance was timely filed.
The Ohio Court of Appeals held that the arbitrator's award departed from the essence of the collective bargaining agreement. The court said the contract was plain and unambiguous, and that the arbitrator did not have "jurisdiction" to decide the case because the grievance was untimely.
My view: Plainly wrong.
Of course, it is easy to say that the arbitrator was "wrong" or misinterpreted the collective bargaining agreement. Let's just assume that is true.
However, the court simply substituted its own interpretation of the contract. To the court, the arbitrator's continuing violation theory "did not comport with" the plain and unambiguous three-day limit. But that is not a proper judicial role. The "essence" test, applied correctly, is that the court must not re-decide the merits of the case provided that the arbitrator was even arguably interpreting the contract.
Here's what the US Supreme Court said in Paperworkers v. Misco, 484 US 29 (1987):
As the Court has said, the arbitrator's award settling a dispute with respect to the interpretation or application of a labor agreement must draw its essence from the contract and cannot simply reflect the arbitrator's own notions of industrial justice. But as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.
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