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April 17, 2005
Can non-signatory successor union force arbitration?
At the time employee Shutt was discharged, AFSCME had a collective bargaining agreement with an arbitration clause. The next day, another union - WMEA - got certified as the collective bargaining representative. Later, WMEA grieved Shutt's discharge and took it to arbitration. Although WMEA was certified, it was not signatory to any collective agreement.
Q: Can WMEA compel arbitration?
A (by the arbitrator): No.
A (by the court): Yes.
The arbitrator's reasoning (says the court): "The arbitrator concluded that the grievance was not arbitrable because there was no statutory or contractual basis to arbitrate the grievance. In particular, the arbitrator determined that there was no evidence that the town agreed to be contractually bound to WMEA by the agreement negotiated by AFSCME."
The court then decided that the arbitrator "exceeded his powers."
The court's reasoning: Although there was a change in unions, the collective agreement continued, and so did the employer's duty to arbitrate. But with whom? Once a new union is certified, the old union has no rights, and the new union can enforce the collective agreement. Beyond that, "The arbitrator's interpretation of the agreement was not based on any specific contractual language, nor has any contractual language supporting his interpretation been brought to our attention." "Rather, his interpretation ... appears to be grounded exclusively in a misreading of labor law cases and statutes."
My view: The court has conflated two separate questions. First, is the question of whether the case should be sent to an arbitrator, and the answer is clearly yes. Second, is whether to affirm the arbitrator's decision that the case was non-arbitrable. At that point, the court seems confused, first saying that the arbitrator reasoned that there was no contractual basis to arbitrate, and then dumping on the arbitrator for not citing contractual language to support that conclusion.
But let's assume, as the court says, that the arbitrator exceeded his powers in the manner he concluded that the grievance was non-arbitrable. That should not transfer to the court the power to decide that the grievance was arbitrable. Ultimately, it should be up to an arbitrator to make that decision. The proper thing for the court to do is to remand to the arbitrator to re-decide the question of arbitrability.
Otherwise, the courts are doing arbitrators' work. If you have been following this blog, you know I think that is a bad thing.
Posted by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
