Click here to read the first opinion, which set aside the arbitration award.
Court of Chancery of Delaware
New Castle
City of Wilmington
v.
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.