Click here to read the first opinion, which set aside the arbitration award.


Court of Chancery of Delaware

New Castle


City of Wilmington


American Federation of State, County and Municipal Employees,

Council 81, Local 1102, and

Raymond J. Donahue


 C.A. No. 19561-NC


2003 Del. Ch. Lexis 74


June 13, 2003, Submitted 

July 18, 2003, Decided


John W. Noble, Vice Chancellor.


This matter involves an application by the City to vacate an arbitration award. The Court’s Memorandum Opinion of March 21, 2003 (the “Memorandum Opinion”), concluded that one aspect of that proceeding – the effect of the September 30 letter – required additional consideration in the arbitration forum. n1 Since issuance of the Memorandum Opinion, a disagreement has arisen as to whether the subsequent arbitration proceedings should be reconvened before the arbitrator who considered this matter initially, as advocated by the Union, or before a different arbitrator, as advocated by the City. n2


   n1 City of Wilmington v. AFSCME, Council 81, Local 1102, 2003 Del. Ch. Lexis 26, 2003 WL 1530503 (Del. Ch. Mar. 21, 2003). The background to the current dispute may be gleaned from the Memorandum Opinion. For convenience, the defined terms in the Memorandum Opinion will be employed here.


   n2 Although the City as a practical matter seeks a different arbitrator, its literal position is that the arbitrator for the additional proceedings should be selected by requesting the American Arbitration Association to propose a list of arbitrator candidates with the parties then striking a number of the candidates.


One supposes that the City would strike the initial arbitrator in this matter if his name were to appear on any list proposed by the American Arbitration Association.


   The parties agree that resolution of this question is not governed by statute, case law, the CBA, or the rules of the American Arbitration Association. n3 Without guidance from the sources upon which courts typically rely, efficiency becomes the next logical consideration. The parties, at least in a general sense, concur that efficiency should factor into any decision. They differ, not surprisingly, on the import and weight that should be accorded to the initial arbitrator’s experience and familiarity with the underlying facts and merits of this dispute. The Union argues that the initial arbitrator’s intimacy with the case will facilitate resolution of the relatively narrow issue that requires additional consideration. On the other hand, the City argues that the arbitrator’s previous service will hinder the proceedings because there was no transcript of the arbitration hearing and a clouded recollection, likely because of the passage of time, may prove difficult to correct.


   n3 The City advises that the American Arbitration Association would not directly reassign this matter for further proceedings to the initial arbitrator absent Court order.


   I am persuaded that, because of the efficiencies to be gained from continuing with the same arbitrator, the initial arbitrator should conduct the subsequent proceedings in the arbitration forum. There is no reason to believe that he will not recall the facts and issues and, to the extent that he does not, his arbitrator’s opinion provides a comprehensive set of factual findings. The narrow issue submitted for his decision is the import of the September 30 letter and the consequences that it carries as the result of Donahue’s actions in the February 12 incident. Thus, a hearing before the same arbitrator will not necessitate the development of a comprehensive factual record. Accordingly, I am unwilling to accept the City’s contention that educating a different arbitrator would not require additional time and effort. n4


   n4 The City has not squarely challenged the independence or bias of the initial arbitrator. Yet, in its June 10, 2003, letter, it asserted that a different arbitrator would “minimize [] the potential influence of bias.” Letter from Kathleen Furey McDonough, Esq. (June 10, 2003) at 2. Significantly, the City proffers no objective basis for its purported concerns about potential bias on the part of the initial arbitrator. Instead, it suggests that the principal reason why the Union has argued for designation of the initial arbitrator is that the Union believes that the initial arbitrator “may be predisposed to reach a conclusion consistent with his prior decision.” Id. at 3. While that may be the Union’s hope, there is nothing in the record from which I can draw any reason to question the impartiality and objectivity of the initial arbitrator.


   Thus, I conclude that the further proceedings directed in the Memorandum Opinion should be before the initial arbitrator if that arbitrator is willing to hear the matter and if his schedule allows for the hearing to be held within a reasonable period of time.


   I ask that counsel confer and submit a form of order to implement this decision. I anticipate that the form of order will meet the needs of the American Arbitration Association. Counsel may also consider whether the “reasonable period of time” for conducting the hearing in the arbitration forum should be specified in the order.



Click here to read the first opinion, which set aside the arbitration award.