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Arbitration Procedures

Other topics: Arbitration Punishment Awards – Right of Courts to Interfere and Impasse Arbitration.

     A former postal employee was not required to resolve her claims arising under the Family and Medical Leave Act (FMLA) through arbitration because her union's collective bargaining agreement with the employer did nor clearly and unmistakably require her to do so. The collective bargaining agreement's incorporation of the federal Rehabilitation Act's prohibitions on disability discrimination, however, was sufficiently clear and unmistakable enough to waive her right to sue for claims under that statute in federal court. Because the plaintiff had subsequently retired, she lost her standing to seek injunctive relief, as she could not realistically face a continuing threat of violation of her rights under the FMLA. Gilbert v. Donahoe, #13-40328, 2014 U.S. App. Lexis 8182 (5th Cir.).
     A county employee sued his employer for disability discrimination, harassment, and unlawful retaliation under state law. The county sought to compel arbitration of the claim under the provisions of a collective bargaining agreement. An intermediate California appeals court held that the employee, who had a statutory disability discrimination claim could not be compelled to arbitrate that claim when the bargaining contract did not contain a promise amounting to an unmistakable and clear waiver of the right to pursue the statutory discrimination lawsuit. Volpei v. County of Ventura, #B243954, 2013 Cal. App. Lexis 903.
     A lawsuit was filed over a ute about whether a collective bargaining agreement governed a controversy over the city refusing to hire a member of the FOP Labor Council to operate a snow plow when he was off duty. The contract stated that only grievances concerning an express provision would be subject to submission to arbitration. Accordingly, not every police officer grievance could be arbitrated. The city was not obligated to arbitrate the immediate dispute since there was no contract provision saying that any officer could arbitrate a failure to hire him to run a snowplow while off duty. City of Naperville v. Illinois Fraternal Order of Police, 2013 IL App (2d) 121071, 2013 Ill. App. Lexis 654.
     A police sergeant who served as a union representative was transferred on the basis of the city's expressed concerns about his exercise of supervisory authority. The union tried to enforce a provision of the collective bargaining agreement prohibiting the transfer without voluntary agreement of certain union representatives between stations. A grievance arbitrator ordered the officer's reinstatement to his original position and damages, finding that the contract had been violated. The highest court in Massachusetts ordered that the award be vacated, finding that the arbitrator exceeded his authority in overturning the transfer, since the police commissioner had statutory non-delegable powers to assign and transfer officers within the department.  City of Boston v. Boston Police Superior Officers Fed'n, #SJC-11238, 466 Mass. 210, 2013 Mass. Lexis 688.
     A police officer challenging his termination for misconduct allegedly involving a public act of masturbation claimed that his due process rights were violated when the city council, before voting to reject an arbitrator's advisory award reinstating him, received advice from a lawyer who was a partner in the same firm that had represented the city at the arbitration hearing. An intermediate California appeals court held that this did indeed violate the employee's due process rights, and compromised the fairness of the proceeding. A new proceeding was ordered, prior to which the council was to obtain independent legal advice. Sabey v. City of Pomona, #B239916, 215 Cal. App. 4th 489, 2013 Cal. App. Lexis 291.

     A union representing police officers believed that a retiree health insurance subsidy provision in a collective bargaining agreement locked the subsidy in place as it existed at the time of the officer's retirement. The union sought arbitration of a dispute over the county's attempt to reduce the subsidy. The county argued that it need not arbitrate as the collective bargaining agreement had expired and that the subsidy was subject to change from year to year. An arbitrator agreed, but an intermediate appeals court vacated the award. Reversing, the highest court in Maryland ruled that an arbitration clause can survive the expiration of a collective bargaining agreement as to vested rights obtained during the contract's term, and that the issue of arbitrability had been one for the arbitrator to initially determined rather than the courts. Baltimore County Fraternal Order of Police Lodge v. Baltimore County Court, #3/12, 2012 Md. Lexis 750.
     Federal courts lack jurisdiction to decide a dispute between management and two postal unions, where the bargaining agreement provides for mandatory arbitration. Trenton Metro Area Local v. U.S. Postal Serv., #08-3941, 2011 U.S. App. Lexis 2862 (3rd Cir.).
     Reversing a lower court, a California appellate panel revives an arbitration award. The arbitrator had ordered the reinstatement of a city employee accused of sexual harassment because the collective bargaining agreement required disciplinary action to be implemented within six months of learning of the alleged misconduct, and the city did not act in time. City of Richmond v. SEIU, L-1021, #A127492, 2010 Cal. App. Lexis 1827 (2010).
     Reversing a lower court, a California appellate panel revives an arbitration award. The arbitrator had ordered the reinstatement of a city employee accused of sexual harassment because the collective bargaining agreement required disciplinary action to be implemented within six months from learning of the alleged misconduct, and the city did not act in time. City of Richmond v. SEIU, L-1021, #A127492, 2010 Cal.App. Lexis 1827 (2010).
     Arbitrator may rely on a prior award involving a similar issue. "In the absence of an express agreement or a requirement by statute, an arbitrator is not required to set forth any findings of fact and conclusions of law supporting an award. ... Thus, simply relying on the rationale of a previous arbitration decision is not fatal." Rhode Island Dept. of Corrections v. Bro. of Corr. Officers, #PM-08-4416s, 2010 R.I. Super. Lexis 128.
     Five-judge appellate panel concludes that a no-layoff clause in a bargaining agreement is not subject to any prohibition against arbitration. A New York municipal fire dept. did not violate public policy by voluntarily including a reasonable job security provision in a bargaining agreement that lasted only three years. Johnson City Prof. Firefighters L-921 and Vil. of Johnson City, #507278, 2010 N.Y. App. Div. Lexis 2825 (3rd Dept.).
     In a 5-to-4 holding, the Supreme Court upheld a provision in an employment agreement that provided that an arbitrator, and not a court, should rule on the enforceability of an arbitration agreement between the employer and employees. The plaintiff tried to litigate a discrimination claim in federal court. Rent-A-Center v. Jackson. #09-497, 2010 U.S. Lexis 4981
     The Supreme Court has noted that "when a contract is formed can be as critical as whether it was formed." The ratification date does not "arise under" the agreement and is a decision for a court, not the arbitrator. Granite Rock v. Teamsters, #08-1214, 2010 U.S. Lexis 5255.
     Although "Illinois case law clearly holds that a non-compensatory, punitive damages award, which is not expressly provided for in a collective bargaining agreement, must be vacated," an arbitration award that contains a time-and-one-half monetary remedy is not "punitive" and will be enforced. City of Chicago v. FOP L-7, #1-09-1218, 926 N.E.2d 912, 188 LRRM (BNA) 2496, 2010 Ill. App. Lexis 225 (1st Dist.).
     N.Y. appellate panel concludes that a public employee waives a right to seek binding arbitration by filing a civil action to challenge an alleged violation of the bargaining agreement. Matter of County of Rockland v. Rockland Assn. of Management, #2008-09321, 891 N.Y.S.2d 285, 2010 NY Slip Op 00144, 2010 N.Y. App. Div. Lexis 145 (2nd Dept.).
     In a 5-2 holding, the Pennsylvania Supreme Court overturns an arbitrator's ruling for a terminated police officer because the city was late in complying with a discovery request. A court or tribunal, when determining possible sanctions to a party, should consider (1) the prejudice, if any, endured by the non-offending party and the ability of the opposing party to cure any prejudice; (2) the non-complying party's willfulness or bad faith in failing to provide the requested discovery materials; (3) the importance of the excluded evidence in light of the failure to provide the discovery; and (4) the number of discovery violations by the offending party. City of Phila. v. FOP L-5 (Breary), #38 EAP 2007, 2009 Pa. Lexis 2792. 
    Ninth Circuit finds that a court, not the arbitrator, must decide the threshold question of arbitrability when a party challenges an arbitration agreement as unconscionable. Jackson v. Rent-a-Center, #07-16164, 2009 U.S. App. Lexis 20133 (9th Cir.).
     Boston's sheriff must arbitrate a union grievance over changes to assignments, scheduled days off and vacation schedules. Sheriff of Suffolk County v. AFSCME Council 93, Local 419, #07-P-885, 75 Mass. App. Ct. 340, 914 N.E.2d 124, 2009 Mass. App. Lexis 1176.
     A court “has no power to set aside an arbitration award because another construction could be given to the contract provisions and a different conclusion reached.” Steuben County v. CSEA L-1000, #281 CA 01-02277, 292 A.D.2d 810, 738 N.Y.S.2d 923, 2002 N.Y. App. Div. Lexis 2567 (4th Dept.); leave to appeal denied, 98 N.Y.2d 606.
     Diabetic ex-police officer may proceed with a disability-related constructive discharge claim, even though an arbitrator found that he had voluntarily left his job. The bargaining agreement did not require that claims based on or arising from federal statutes must be arbitrated. Catrino v. Town of Ocean City, #09-505, 2009 U.S. Dist. Lexis 59783 (D. Md.). 
     Fourth Circuit enforces an arbitration demand, despite the fact that the grievances were filed after the bargaining agreements had expired. The statute of limitations period does not begin until a party unequivocally refuses to arbitrate. United Steel Workers v. Continental Tire, #08-1778, 568 F.3d 158, 2009 U.S. App. Lexis 12469 (4th Cir.).
     In a suit where security personnel raised discrimination issues, the Supreme Court holds that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims was enforceable as a matter of federal law. 14 Penn Plaza v. Pyett, #07-581, 2009 U.S. Lexis 2497.
     In an action claiming that a city breached its obligations under the Employee Retirement Income Security Act of 1974 to make contributions to the fund, the city could not seek dismissal on the ground that a bargaining agreement called for binding arbitration. The CBA did not empower the city to initiate arbitration. Dugan v. City of W. Chicago v. Int. Union, etc., #08 C 2223, 2009 U.S. Dist. Lexis 22110 (N.D. Ill.).
     In a suit where security personnel raised discrimination issues, the Supreme Court holds that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. 14 Penn Plaza v. Pyett, #07-581, 2009 U.S. Lexis 2497.
     An arbitrator’s award that concludes the City violated its own personnel rules and directing the employee to be made whole, without more, is an enforceable award. “As sometimes happens, the arbitrator ordered the parties to work out the details of the make-whole remedy, which they did not do.” The appropriate action is not to vacate the award but to remand the dispute back to the arbitrator to fashion a more definitive remedy. Mossman v. City of Oakdale, #F054983, 2009 Cal. App. Lexis 40 (5th Dist).
     Third Circuit upholds an arbitration clause written in English, when the employee speaks only Spanish. Absent a showing of fraud, the fact that a person cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement is enforceable. Morales v. Sun Constructers, #05-4753, 2008 U.S. App. Lexis 18513 (3rd Cir.).
     Violations of the Uniformed Services Employment and Reemployment Rights Act are subject to arbitration clauses. Landis v. Pinnacle Eye Care, #07-6204, 537 F.3d 559, 2008 U.S. App. Lexis 17055, 2008 FED App. 0285P, 184 LRRM (BNA) 2904 (6th Cir.).
     Appeals court overturns an arbitration award that ignored the time limit for filing a grievance by characterizing it as a continuing violation. The time limit for filing grievances was plain and unambiguous. City of Fairfield, Ohio v. AFSCME C-8, #CA2007-11-267, 2008 Ohio App. Lexis 3300, 2008 Ohio 3891 (12th Dist.).
     Arbitrator finds that a union was guilty of laches in not raising an overtime issue for three years. City of Oregon, Ohio and Ore. Part-time Fire Fighters Assn., FMCS Case #07/59337, 124 LA (BNA) 1592 (Bell, 2008).
     Pennsylvania appellate court reinstates an arbitration award granting a duty-related pension to a disabled officer. The arbitrator did not exceed his powers by awarding the officer a work-related disability pension. Bor. of Mahanoy City v. M.C. Police Dept., #1172 C.D. 2007, 2008 Pa. Commw. Lexis 194.
     Iowa deputy sheriffs must appeal terminations to the civil service commission. A bargaining agreement clause providing for arbitration contravenes Iowa Code 314A12 Kucera v. Baldazo, #05-2138, 745 N.W.2d 481, 2008 Iowa Sup. Lexis 34.
     In a pay rate dispute, arbitrator rejects a city's request to bifurcate the hearing to allow a ruling on arbitrability followed by a hearing on the merits -- including a possible appeal of the first award; the inefficiency and cost of such procedure would defeat the value of arbitration as an alternative dispute resolution method. "... one of the fundamental objectives of arbitration - speedy resolution of disputes - could be thwarted if parties were able to delay arbitration by litigating procedural formalities before the trial court." City of Northfield and IUOE, L-70, 124 LA (BNA) 1077, BMS Case #07-PA-1041 (Daly, 2008), citing Brothers Jurewicz v. Aheari, 296 N.W.2d 422 at 427 (Minn. 1980) and Bartley v. Jefferson Parish, 302 So.2d 280 (La. 1974).
     "A party that does not object to the arbitrator's jurisdiction during the arbitration may not later do so in court." Howard University v. Metro. Campus Police, 512 F.3d 716, 2008 U.S. App. Lexis 1038, 183 LRRM (BNA) 2526 (D.C. Cir.).
     Oklahoma arbitrator declines to decide whether a terminated firefighter was entitled to workers' compensation benefits, where the bargaining agreement precluded an arbitrator from interpreting or applying external law. City of Tahlequah and IAFF L-4099, FMCS Case #06/512272-7 124 LA (BNA) 1147 (Nicholas, 2007).
     Illinois appellate panel finds that the lower court erroneously vacated an arbitration award in favor of a city because the judge disagreed with the arbitrator's application of a clause in the bargaining agreement. "The scope of judicial review of an arbitration award is nothing like the scope of an appellate court's review of a trial court's decision because the Uniform Arbitration Act provides for limited judicial review of the arbitrator's award." Judicial reviews of arbitration awards are limited to a finding of bad faith, fraud, exceeding the arbitrator's authority, or deliberately refusing to follow the law, none of which occurred. IAFF L-37 v. City of Springfield, #4-07-0439, 2008 Ill. App. Lexis 49 (4th Dist.).
     Federal court concludes that a military reservist was bound by an agreement to arbitrate all employment-related claims, including discrimination or retaliation arising from his military service. The USERRA does not prohibit arbitration and the Congress has repeatedly declined to create bars to arbitration in other statutes. Kitts v. Menards, #3:2006cv00708, 2007 U.S. Dist. Lexis 73052, 182 LRRM (BNA) 3109 (N.D. Ind.).
     "Federal courts are not obligated to accord res judicata or collateral estoppel to an arbitrator's decision." Lohman v. Duryea Borough, #3:05-CV-1423, 2007 U.S. Dist. Lexis 87720 (M.D. Pa.), citing McDonald v. City of West Branch, 466 U.S. 284 at 285-6 (1984). Retiree benefits are not arbitrable if they don't vest prior to expiration of the collective bargaining agreement. Crown Cork & Seal v. Intl. Assn. of Machinists, #06-3639, 2007 U.S. App. Lexis 22207 (8th Cir.).
     Arbitration of a grievance two years after it is filed is contrary to the intent of the bargaining process, but a long delay, by itself, does not necessarily make a grievance inarbitrable. Cook County/Sheriff and SEIU L-73, 123 LA (BNA) 1674 (Wolff, 2007).
     Second Circuit overturns an arbitration award that denied a prevailing age discrimination plaintiff the recovery of $262,000 in attorney fees. Porzig v. Dresdner Kleinwort, #06-1212-cv, 2007 U.S. App. Lexis 18674 (2nd Cir.).
     Appellate court overturns an arbitration award where the city's witnesses were not allowed to testify because a document had not been given to the accused officer. The union should have used other means to enforce the documents subpoena; a preclusion order was too drastic a remedy. City of Philadelphia v. Frat. Order of Police L-5, #44C.D.2007, 2007 Pa. Commw. Lexis 409.
     California appellate court finds that an arbitrator exceeded her authority when she concluded that the bargaining agreement did not comport with the parties' actual understanding. State employee bargaining agreements must be approved by the legislature, and cannot be later modified by an arbitrator, even if there was a mutual misunderstanding. Dept. Pers. Admin. v. Cal. Corr. Peace Officers Assn., #C051636, 2007 Cal. App. Lexis 1100 (3rd Dist.).
     Appellate court concludes that nonparties to an arbitration between another union and the city lack standing, under statute or common law, to set aside the award and the police union's claims of harm were too speculative to give rise to a cognizable interest. P.B.A. v Dist. Council 37 AFSCME, #117494/04, 2007 N.Y. App. Div. Lexis 3870, 2007 NY Slip Op 02620
     Appellate court sustains an arbitrator's finding that the management's new policy to reduce staffing on fire engines violated the bargaining agreement. The appellate panel found that the arbitrator's decision drew its essence from the agreement and the arbitrator did not exceed his authority when he gave "great weight" to the staffing requirement suggested by the NFPA. City of Dayton and IAFF L-136, # 21681, 2007-Ohio-1337, 2007 Ohio App. Lexis 1207 (2nd Dist.).
     Illinois Supreme Court concludes that a ban on class actions in an arbitration clause is unconscionable and unenforceable. Kinkel v. Cingular Wireless, #, 2006 Ill. Lexis 1639, 2006 WL 2828664 (Ill. 2006); also see Kristian v. Comcast, #04-2619, 446 F.3d 25 (1st Cir. 2006). [N/R]
     Appellate court overturns an arbitration award that applied a beyond reasonable doubt standard to the trial of a corrections lieutenant that was accused of having sex with an inmate. N.Y. State Law Enforcement Officers Union C-82 v. State of New York, #500783, 2006 N.Y. App. Lexis 14103, 2006 NY Slip Op 08861 (3rd App. Dept. 2006). [N/R]
     California appellate court rejects a management assertion that arbitrators cannot interpret statutes. Calif. Corr. Peace Officers Assn v. State of Calif., #A112311, 2006 Cal. App. Lexis 1386, 180 LRRM (BNA) 2631 (2006). {N/R}
     Federal district court declines to vacate an arbitration award even though the arbitrator refused to grant a continuance when the union's main witness became unavailable due to surgery. Healthcare Workers L-250 v. American Medical Response, #CV-F-05-1333, 2006 U.S. Dist. Lexis 42134, 179 LRRM (BNA) 3159 (E.D. Cal. 2006). {N/R}
     A law permitting binding arbitration of a promotions procedures dispute did not apply to the a fire dept. that had years of intentional and unintentional discrimination against minorities and women, and would interfere with the city's duty to end biased promotional practices. San Fran. Fire Fighters L-798 v. C&C of San Francisco, #S131818, 2006 Cal. Lexis 5932 (Cal. 2006).{N/R}
     Claims brought under Uniformed Services Employment and Reemployment Rights Act are subject to arbitration under the Federal Arbitration Act (FAA). Garrett v. Circuit City Stores, #04-11360, 2006 U.S. App. Lexis 11755 (5th Cir. 2006). {N/R}
     Illinois rules that workers are bound by a mandatory arbitration agreement when they sign an employer's form to that effect. Illinois does not require a "knowing and voluntary" waiver, because that is not a condition that applies to contracts generally. Melena v. Anheuser-Busch, #99421, 2006 Ill. Lexis 329 (2006). {N/R}
     Seventh Circuit upholds an award to a union, assessed against the employer, for filing a lawsuit to overturn an arbitration award. Cuna Mutual Insur. v. Office & Prof. Employees L-39, #05-1021, 2006 U.S. App. Lexis 6390 (7th Cir. 2006). {N/R}
     Arbitrator allows a successful grievant to recover attorney's fees noting that when one party acts arbitrarily, capriciously, or in bad faith, such fees awards have been upheld by the courts. City of Mansfield and IAFF L-266, 121 LA (BNA) 1141, FMCS Case No. 0555999-8 (Szuter, 2005). [2006 FP Feb]
     Federal appeals court upholds mandatory arbitration remedy, where the employee received a copy of the rules and continued to work. Written acceptance of an arbitration agreement was unnecessary. Marino v. Dillard's, #04-30911, 413 F.3d 530, 2005 U.S. App. Lexis 11837 (5th Cir. 2005). {N/R}
     Ohio appellate court upholds a clause in the bargaining agreement requiring employees to arbitrate any wrongful termination claims. Knipp v. Lawrence County, #04CA34, 2005 Ohio 3103, 2005 Ohio App. Lexis 2888 (2005). {N/R}
     Federal appeals court affirms a management practice of classifying termination appeals as "abandoned" if the union has failed to schedule arbitration review within twelve months. Cruz-Martinez v. Dept. of Homeland Security, #04-3271 2005 U.S. App. Lexis 10418, 177 LRRM (BNA) 2534 (Fed Cir. 2005). [2005 FP Aug]
     Retroactivity: Unless the bargaining agreement provides otherwise, a grievance is arbitrable even though the event giving rise to the demand occurred before the parties had agreed to grievance arbitration for the first time in the current contract. Matter of Ramapo v. Ramapo P.B.A., #2003-00584, 2005 N.Y. App. Div. Lexis 3790, 2005 NY Slip Op 02863 (2d Dept. 2005). {N/R}
     An arbitration award, where the arbitrator cited language in his decision that cannot be found in the bargaining agreement, should be upheld if the inclusion does not fatally taint the balance of the arbitrator's decision. Brentwood Med. Assn. v. UMW, # 04-1955, 396 F.3d 237, 176 LRRM (BNA) 2594 (3d Cir. 2005). {N/R}
     An employer's requirement that discrimination complaints be brought to arbitration during a 180-day period "unreasonably favors" an employer and was "unconscionable." Adler v. Manor, #74701-6, 2004 Wash. Lexis 93 (Wash. 2004). {N/R}
     A provision that all arbitration proceedings, including settlements and awards, remain confidential was unenforceable and unreasonable here because it only benefits the employer. Zuver v. Airtouch Comm., #74156-5, 103 P.3d 753, 2004 Wash. Lexis 936 (Wash. 2004). {N/R}
     Arbitrator refuses to discipline a warden for his failure to respond to a disciplinary grievance, and also declines to enter a default award. Grievances should be decided on their merits unless the bargaining agreement provides for default awards. Fed. Bur. of Prisons and Council of Prison Locals AFGE, 119 LA (BNA) 1812, FMCS #03/10025 (Franckiewicz, 2004). [2004 FP Dec]
     Eighth Circuit holds that a fee-splitting clause does not make an arbitration agreement unconscionable and the courts must conduct a case-by-case review to see if the fees are prohibitive. Courts should sever any unreasonable cost-sharing clause and then compel arbitration. Faber v. Menard, #03-3075, 367 F.3d 1048, 2004 U.S. App. Lexis 10054 (8th Cir. 2004). {N/R}
     Arbitration Procedures Arbitrator finds it is desirable to issue an advisory opinion in a disciplinary grievance appeal, even though case is not arbitrable because of time violations. City of Okmulgee and FOP L-96, 119 LA (BNA) 1227 (Robinson, 2004). {N/R}
     Police officer who was fired for a residency violation lacks standing to petition the courts to vacate the arbitrator's award; the grievance was between the employer and union under the bargaining agreement. Leon v. Boardman Twp. Ohio, #2002-1955, 100 Ohio St.3d 335, 2003 Ohio 6466, 800 N.E.2d 12, 2003 Ohio Lexis 3419, 174 LRRM (BNA) 2731 (2003). {N/R}
     Massachusetts appellate court concludes that arbitrators do not need specific authority to modify disciplinary punishment, where the bargaining agreement requires "just cause." Boston Police Patrolmen's Association v. City of Boston, #02-P-883, 60 Mass. App. Ct. 672, 805 N.E.2d 80, 2004 Mass. App. Lexis 298 (2004). [2004 FP Jun]
     California appellate court rejects an arbitration clause in a plaintiff's employment contract because of its cost-sharing provision and it lacked mutuality and fairness. Abramson v. Juniper, #H025840, 2004 Cal. App. Lexis 151 (6th Dist. 2004). {N/R}
     Appeals court holds that arbitrator could clarify a two-year-old award. Neither the Ohio three-month time limitation to modify an award nor the Ohio one-year time limitation to confirm an award applies to a request to clarify an award. The doctrine of functus officio (having fulfilled the function, the arbitrator had no further authority) does not apply where an award is susceptible to more than one interpretation. Sterling China v. Glass Workers Union, #02-3773, 2004 FED App. 0037P, 2004 U.S. App. Lexis 1556 (6th Cir. 2004). Note: The Federal Labor Relations Authority reached the same conclusion in upholding an interpretative award six years after the initial ruling. AFGE L-1156 and U.S. Navy, #0-AR-3294, 2001 FLRA Lexis 141, 57 FLRA No. 116 (FLRA 2001). {N/R}
     Appeals court rejects a second demand for arbitration, after the employer failed to advance the costs for the first arbitration hearing. Sink v. Aden, #02-35323, 2003 U.S. App. Lexis 24773 (9th Cir. 2003). {N/R}
     Although courts should not modify or set aside an arbitration award, absent a defect, the issue of whether a party is in compliance with an arbitration award is properly decided by a court. An appellate panel upholds a trial court ruling that a sheriff's modified staffing of the jail, during the graveyard shift, complied with the award. Ohio Patrolmen's Benev. Assn. v. Cuyahoga Co., #82238, 2003 Ohio 4349, 2003 Ohio App. Lexis 3856, 173 LRRM (BNA) 2179 (Ohio App.8th Dist. 2003). {N/R}
     Whether the use of "administrative search warrants" to conduct locker searches is lawful is a question for an arbitrator under the bargaining agreement, and not the courts, when the issue is raised by a union and not by an officer who claims that his rights were violated. [2004 FP Feb]
     Prior precedent reversed; the Ninth Circuit now approves of compulsory Title VII arbitration. EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 2003 U.S. App. Lexis 20007, 92 FEP Cases (BNA) 1121 (9th Cir. en banc 2003). [2004 FP Jan]
     Arbitrator declines to decide a disability discrimination complaint. Arbitrators should not look to outside law to confer jurisdiction, and must "not to add to the terms of the contract." Ohio Dept. of Health and Ohio CSEA-AFSCME, L-11, 118 LA (BNA) 1361 (Murphy, 2003). {N/R}
     Arbitrator declines to stay a grievance hearing because management also is pursuing a remedy with the Federal Labor Relations Authority. Bur. of Customs and NTEU, 118 LA 1371 (Abrams, 2003). {N/R}
     Arbitrator holds that management did not waive its right to object to an untimely request for arbitration, when it participated in the FMCS arbitrator selection process. Bur. of Prisons, Beaumont TX and AFGE L-1010, FMCS #03/06117, 118 LA (BNA) 1086 (Moreland, 2003). {N/R}
     Arbitrator holds that management erred when it refused to pay for half of cost of stenographer used at arbitration hearing. Although AAA rule 21 provides that the requesting party shall pay the cost of making a record, the bargaining agreement provided that the "costs for arbitration" were to be borne equally by parties. Union-Scioto Bd. of Educ. and Uniioto Support Assn., AAA Case #52-390-00463-02, 118 LA (BNA) 710 (Cohen, 2003). {N/R}
     Eighth Circuit holds that if, during the course of tripartite arbitration, a party-appointed arbitrator dies or resigns, the parties do not need to start all over again. The party that the arbitrator represented should name a replacement. National Am. Ins. v. Transamerica Occid. Ins., #02-1992, 328 F.3d 462, 2003 U.S. App. Lexis 9125 (8th Cir. 2003). {N/R}
     Federal appeals court holds that an employer was not required to arbitrate employee terminations because the bargaining agreement between the parties had expired and there was no provision for arbitration of disputes arising after the expiration. Dist. 1 Marine Engrs. v. GFC, #02-12277, 331 F.3d 1287, 172 LRRM (BNA) 2609, 2003 U.S. App. Lexis 10939 (11 Cir. 2003). {N/R}
     A badly split Wisconsin Supreme Court holds that the decision to demote a person during the promotional probationary period is not arbitrable, absent specific language in the contract. City of Madison v. Wis. Empl. Rel. Cmsn., #99-0500, 2003 WI 52, 662 N.W.2d 318, 2003 Wisc. Lexis 419 (2003). [2003 FP Sep]
     Arbitration Procedures Federal court enforces an arbitration award requiring an employer to reinstate, with loss of six months of back pay, a white employee who referred to a superior as a "fucking nigger." Courts must not set aside arbitration awards in the absence of a clearly violated public policy; the superior did not hear the remark and the worker had a twelve-year record of good employment. GITS Mfg. v. Local 281, #4:02cv40243, 2003 U.S. Dist. Lexis 7963, 172 LRRM (BNA) 2463, 91 FEP Cases (BNA) 1286 (S.D.Iowa 2003). {N/R}
     Court refuses to overturn an arbitration award that rejected the punishment of an off-duty corrections officer that illegally possessed TV cable decoders. Disparate penalties shown. Rhode Island Dept. of Corrections v. Bro. of Correctional Officers (Algasso), #02-1793, 2002 R.I. Super. Lexis 156 (Super. Ct. Providence 2002). [2003 FP Jul]
     Arbitrator concludes he has the power, under contractual grievance procedures, to interpret and implement a civil service board remedy. Sheriff of Cook County and AFSCME L-3692, 117 LA (BNA) 1745 (Wolff, 2002). [2003 FP Jun]
     Appellate court in New York affirms an arbitration award that process servers in the sheriff's dept. must be provided with firearms and training. [2003 FP May]
     Arbitrator declines to enforce a clause requiring the parties to submit a list of witnesses seven days before the hearing. Fed. Bur. of Prisons and AFGE L-4051, FMCS Case #02/06738, 117 LA (BNA) 1723 (Oberdank, 2002). [2003 FP May]
     New Jersey Supreme Court holds that when a party fails to attend arbitration and a default award is entered, the absent party still has a right to demand a hearing on the merits if the arbitrator fails to notify him or her of the award. America's Pride Construction v. Farry, A-87, 811 A.2d 906, 2002 N.J. Lexis 1787 (N.J. 2002). {N/R}
     Arbitrator exceeded his authority in reinstating an employee who was fired for insubordination. The bargaining agreement gave management the right to discharge, and the arbitrator had no discretion to fashion remedy different from the parties' agreed-upon discipline. Poland Spring Corp. v. UFCW, AFL-CIO L-1445, #02-1064, 314 F.3d 29, 171 LRRM (BNA) 2641, 2002 U.S. App. Lexis 26553 (1st Cir. 2002). {N/R}
     Supreme Court holds that the question of whether the parties have submitted a particular dispute to arbitration is an issue for the courts to decide. Also, a disagreement about whether an arbitration clause applies to a particular controversy is for the court. But all "procedural questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide." Howsam v. Dean Witter Reynolds, #01-800, 2002 U.S. Lexis 9235 (2002). {N/R} N.Y. holds that the calculation of retirement benefits earned under state law are arbitrable. City of Johnstown and Johnstown PBA; City of Schenectady and Schenectady PBA, #155/6, 2002 N.Y. Lexis 3801 (N.Y. 2002). {N/R}
     Terms of the bargaining agreement evidenced an intent and contractual obligation to arbitrate all disputes, and survive the expiration of the agreement. The Providence Journal Co. v. Providence Newspaper Guild, #01-2430, 308 F.3d 129, 171 LRRM (BNA) 2012, 2002 U.S. App. Lexis 21905 (1st Cir. 2002). {N/R}
     A seven-justice N.Y. Court of Appeals reversed an intermediate appellate decision that had overturned an arbitration award. Although both employees were guilty of safety violations, there was no public policy in New York which required public employers to terminate employees for their conduct. The arbitration awards, imposing a lesser penalty, were reinstated. NYCTA v. Transp. Workers Union, #106, 2002 N.Y. Lexis 2840, 2002 N.Y.Int. 0107 (N.Y., 2002). {N/R}
     Michigan appellate court declines to overturn an arbitration award that reinstated a corrections officer who had an expunged arrest record for misdemeanor possession of marijuana in his home. Office of State Employer v. UAW Local 6000, 2002 WL 31082148 (Unpub. Mich.App. 2002). {N/R}
     The American Arbitration Association's Labor Arbitration Rules and the National Rules for the Resolution of Employment Disputes were amended in 2002. See www.adr.org {N/R}
     Federal court in Philadelphia holds that the arbitrator should decide whether a group of workers may pursue claims of race discrimination in a class action, even if the bargaining agreement is silent on the issue of class remedies. Brennan v. ACE INA Holdings, #00-2730, 2002 U.S. Dist. Lexis 15039 (E.D. Pa. 2002). {N/R}
     Alaska Supreme Court holds that the state's Labor Relations Agency had the power to decide questions of arbitrability. Fairbanks Fire Fighters Assn. L-1324 v. City of Fairbanks, #S-9715, 48 P.3d 1165, 2002 Alas. Lexis 77 (2002). {N/R}
     Texas Supreme Court holds that at-will employees are subject to binding arbitration for all employment disputes by continuing to work after the employer notifies workers of an effective date. The court rejected the argument that unsigned arbitration agreements are not enforceable. Halliburton Co. and Brown & Root Energy Services, #00-1206, 45 Tex. Sup. J. 720, 80 S.W.3d 566, 2002 Tex. Lexis 70, 45 Tex. Sup. J. 720, 18 IER Cases (BNA) 1121 (Tex. 2002). {N/R}
     Arbitrator refuses to allow a union to enlarge the subject of the grievance submitted. "Any attempt by either party to present a new issue, after the filing of the original grievance, is an expansion of scope of the original complaint, and should be rejected in arbitration." City of Bay City and FOP L-103, FMCS Case #01/09422, 117 LA (BNA) 60 (Allen, 2002). {N/R}
     Where the American Arbitration Association deviated from the arbitrator selection process in the employment agreement, and the employee did not timely object, the objection was waived and the award is valid. Brook v. Peak Intern., #01-50339, 2002 U.S. App. Lexis 11627 (5th Cir. 2002). {N/R}      
     A party who objects to arbitration must wait until the arbitrator concludes the dispute with a final opinion, before challenging the arbitration process by judicial actions. Montgomery Co. v. Montgomery Co. Educ. Assn., #1817 CD 2001, 797 A.2d 432, 2002 Pa. Commw. Lexis 275 (Pa. Cmwlth 2002). [N/R]
     Arbitrator rules that a city did not violate the bargaining agreement when it had to replace the dental coverage with a more expensive policy, which required a worker co-payment. The contract was silent on dental plan coverage. Oklahoma City and FOP L-123, FMCS #01/05071, 116 LA (BNA) 1502 (Moreland, 2002). [N/R}
     California appeals court strikes down a law allowing public safety unions to demand binding arbitration of economic issues. County of Riverside v. Superior Court (Riverside Sheriff's Assn.), #E030454, 118 Cal.Rptr.2d 854, 2002 Cal. App. Lexis 4006 (4th Dist. App. 2002). [2002 FP Jul]
     Arbitrator rejects, as non arbitrable, a grievance from a deputy sheriff who received an offensive letter from the chief deputy. The mere fact that the preamble to the bargaining agreement recites as a purpose the promotion of cooperation and harmonious relations does not make every slight to a unit member the proper subject of an arbitration demand. Clark Co. Sheriff and Frat. Order of Police, FMCS Case #01/10019, 116 LA (BNA) 1266 (Kindig, 2001). [2002 FP Jul]
     A divided Seventh Circuit holds that an employee was not compelled to arbitrate her Title VII claim against the employer pursuant to a written agreement, because it required that each party pay its own attorney fees. Title VII authorizes the award of attorney's fees to the prevailing party. McCaskill v. SCI Mgmt. Corp., #00-2839, 285 F.3d 623, 88 FEP Cases (BNA) 705, 2002 U.S. App. Lexis 6068 (7th Cir. 2002). [N/R]
     Second Circuit enforces an arbitration award even though the union breached the no-strike clause in the bargaining agreement. Mulvaney Mechanical v. Sheet Metal Workers L-38, 2002 U.S. App. Lexis 7720 (2nd Cir. 2002). [N/R]
    U.S. Supreme Court declines to review a Massachusetts Supreme Court decision upholding an arbitration award that reinstated a police officer who used excessive force. Courts may not set aside an arbitrator's award because judges disagree with the reasoning. If the arbitrator found the use of force to be reasonable, then the award is not a violation of public policy. City of Lynn v. Thompson, #SJC-08487, 435 Mass. 54, 754 N.E.2d 54 (Mass. 2001); cert. den., 122 S. Ct. 1071 (2002). [2002 FP Jun]
     An employee who signs an arbitration agreement, but does not approve subsequent modifications, is not bound by the revised provisions. Brennan v. Bally, 153 F.Supp.2d 408, 2001 U.S. Dist Lexis 9882 (S.D.N.Y. 2002). [N/R]
     Arbitration clause in the employment agreement was enforceable under the Federal Arbitration Act even though it was not enforceable under state law because it provided for arbitration elsewhere under the laws of another state. Jensen v. Rice, 809 So. 2d 895, 2002 Fla.App. Lexis 2973 (Fla. App. 2002). [N/R]
     Arbitrator strictly enforces the time requirements to demand arbitration. The fact that a grievance hearing might prejudice a pending criminal case does not excuse compliance with the CBA's time limitations. Union official's failure to file a formal arbitration demand was not waived by his misunderstandings with the chief. City of Margate and Fraternal Order of Police, FMCS #01/09602, 116 LA (BNA) 985 (Hoffman, 2001). [2002 FP May]
     Supreme Court holds that an agreement to arbitrate all employment disputes does not preclude the EEOC from filing a damage suit in behalf of the employee. EEOC v. Waffle House, #99-1823, 122 S.Ct. 754, 2002 U.S. Lexis 489 (2002). [N/R]
     Ninth Circuit rules that if a union fails to bring a lawsuit to compel the arbitration of a grievance, following an employer refusal to process that grievance, the employee can bring a lawsuit directly against the employer. Sidhu v. The Fletco Co., #00-15567, 279 F.3d 896, 2002 U.S. App. Lexis 1720 (9th Cir. 2002). [N/R]
     If a bargaining agreement leaves the determination of the arbitrability of a grievance to an arbitrator, the issue of whether disciplinary action can be overturned by arbitration is not usually a question for the courts, and doubt must be resolved in favor of arbitration. Union Twp. v. Firefighers 1981A, #A.L.R.3D, 142 Ohio App.3d 542, 756 N.E.2d 204 2001 Ohio App. Lexis 1758. {N/R}
     A grievance brought in behalf of a retired firefighter must be denied, as a retiree is no longer covered by the bargaining agreement. City of Watervliet and Watervliet Unif. Firefighters' Assn., N.Y. P.E.R.B. #A-201-075, 116 LA (BNA) 238 (Babiskin, 2001). {N/R}
     Federal appeals court strikes down an employment agreement that required the arbitration of discrimination claims, because it mandated that all costs were to be split between the employer and employee. Perez v. Globe Airport Security, #00-13489, 253 F.3d 1280, 2001 U.S. App. Lexis 12394 86 FEP Cases (BNA) 613 (11th Cir.). [2001 FP 131]
     Arbitrator places the burden of proof on the employer in reimbursement claims for lost or stolen property issued to an employee. Cook County (Adult Probation Dept.) and AFSCME L-3486, 115 LA (BNA) 1025 (Wolff, 2001). [2001 FP 115]
     D.C. Circuit reaffirms the nationwide validity of compulsory arbitration agreements that apply to employment discrimination cases in all jurisdictions except the 9th Circuit. Borg-Warner Prot. Serv. v. EEOC, #00-5094, 245 F.3d 831, 2001 U.S. App. Lexis 6726, 69 L.W. 1672, 85 FEP Cases (BNA) 673 (D.C. Cir. 2001). [2001 FP 99]
     Divided Supreme Court upholds a mandatory arbitration clause in an employment application, requiring workers to waive litigation of state and federal discrimination and other claims. Circuit City Stores v. Adams, #99-1379, 532 U.S. 105, 121 S.Ct. 1302, 2001 U.S. Lexis 2459, 85 FEP Cases (BNA) 266. [2001 FP 51-2]
     10th Circuit holds that the parties to an arbitration agreement cannot contractually expand the standards for judicial review of arbitration awards, which are limited by the Federal Arbitration Act, 9 U.S. Code 11. Bowen v. Amoco Pipel., #00-7039, 254 F.3d 925, 2001 U.S. App. Lexis 13867 (10th Cir. 2001). The 5th and 9th circuit have issued contrary opinions: Gateway Tech. v. MCI, 64 F.3d 993 (5th Cir. 1995); Lapine Tech. v. Kyocera, 130 F.3d 884 (9th Cir. 1997). {N/R}
     An arbitrator may hear a case, even though only the union requested list of arbitrators, then selected the arbitrator, and requested a hearing. Federal Mediation and Conciliation Service rules do not prohibit the selection of an arbitrator at request of only one party. City of Warr Acres and L-2374 IAFF, 115 LA (BNA) 335 (Woolf, 2000). {N/R}
     N.H. Supreme Court upholds a law providing for automatic forfeiture of employment for a felony conviction. The fact the law was passed while the criminal charges were still pending does not provide the defense of ex post facto legislation.   “A valid employment requirement prescribed by state law cannot be negotiated and is not a proper subject for arbitration.” West Warwick v. L-1104 IAFF, #98-453, 745 A.2d 786, 2000 R.I. Lexis 48, 164 LRRM (BNA) 2063. [2000 FP 115-6]
     Employee's signature on materials and his failure to opt out of a mandatory program was an enforceable employment contract. Circuit City v. Ahmed, #98-55896, 195 F.3d 1131, 1999 U.S. App. Lexis 29974, 81 FEP Cases (BNA) 734 (9th Cir. 1999). {N/R}
     Although a bargaining agreement provides that sole remedy is the grievance procedure, where contract specifies that particular issues are not grievable, there is no right to arbitration. Huron Co. and Police Off. Lab. Council, #99-02, 114 LA (BNA) 487 (Sugerman, 2000). {N/R}
     Rhode Island Supreme Court rules that an arbitrator exceeded his authority when he upheld a union grievance on overtime entitlement that disregarded state law. State of Rhode Island v. SEIU Local 580, 165 LRRM (BNA) 2310 (R.I. 2000). {N/R}
     A discharged state employee was not required to arbitrate her FMLA discrimination claim; the union's contractual waiver of an employee's statutory right to federal forum was not clear and unmistakable. Rogers v. New York Univ., 220 F.3d 73, 2000 U.S. App. Lexis 17370, 164 LRRM. 2854, 6 WH Cases2d (BNA) 375 (S.D.N.Y. 2000). {N/R}
     A 75-day deadline for filing grievances in the firefighters' contract did not fall within the "terms and conditions" clause providing for arbitration. IAFF L-1710 v. City of Chicopee, 30 Mass. 417, 721 N.E.2d 378, 1999 Mass. Lexis 688, 164 LRRM (BNA) 2159 (Mass. 1999). {N/R}
     Mere fact a bargaining agreement contains a no discrimination clause and provides for arbitration of grievances, did not preclude an employee from pursuing judicial remedies, absent a clearly-worded waiver of statutory rights. Bratten v. SSI Services, 185 F.3d 625 (6th Cir. 1999). {N/R}
     Illinois appellate court allows officers to seek arbitration of their disciplinary actions, even though a local law requires the Fire & Police Board to hear the charges. IL FOP Labor Council v. Town of Cicero, #1-97-3376 (1st Dist.), 301 Ill.App.3d 323, 703 N.E.2d 559, 1998 Ill.App. Lexis 787, 160 LRRM (BNA) 2558. [1999 FP 19]
     California Supreme Court holds that the representation of a party at an arbitration hearing is "practicing law" and non lawyers can be prosecuted. Birbrower v. Super. Ct. (ESQ Bus. Serv.), 17 Cal.4th 119, 949 P.2d 1, 1998 Cal. Lexis 2, 70 Cal.Rptr. 2d 304. [1998 FP 164]
     Federal Mediation and Conciliation Service issues final rules for arbitration services. 29 C.F.R. Part 1404, 35 (1721) G.E.R.R. (BNA) 880-885 (Eff. 9/97). {N/R}
     National Academy of Arbitrators opposes mandatory arbitration of statutory rights in employment cases, but also issues guidelines for arbitrators hearing those disputes. Statement and guidelines on arbitration of statutory claims, I/Net site: www/naarb.org/ [1997 FP 147]
     Agreement in job application was unenforceable for lack of valid consideration. Employer gave nothing in return. Brooks v. Circuit City, 1996 U.S. Dist. Lexis 9869, 71 FEP Cases 102 (D.Md. 1997). {N/R}
     Clause in collective bargaining agmt. expressly applying to federal statutory discrimination claims which could be invoked by union an employee was enforceable against the employee. Martin v. Dana Corp., 114 F.3d 421 (3rd Cir. 1997). {N/R}
     The 9th Circuit federal appeals court rejects employer's claim that a mandatory arbitration provision in an employee's handbook can waive a worker's statutory rights. Nelson v. Cyprus, 1997 U.S.App. Lexis 17066, 119 F.3d 756 (9th Cir.). [1997 FP 137-8]
     The 8th Circuit enforces a mandatory arbitration provision because the employee signed an arbitration clause on the last page of the handbook. Patterson v. Tenet, 113 F.3d 832 (8th Cir. 1997). [1997 FP 137-8]
     Agreement to arbitrate FMLA claims is valid and enforceable. O'Neil v. Hilton Head Hosp., 12 IER Cases (4th Cir. 1997). {N/R}
     Ninth Circuit holds that 11th Amendment immunity of states does not bar the enforcement of an employment-related arbitration award against a state agency. Premo v. Martin, 119 F.3d 764, 1997 U.S.App. Lexis 17359 (9th Cir.). {N/R}
     Federal court upholds employment application forms, when signed by minors, agreeing to arbitrate any employment rights disputes. Sheller v. Frank's Nursery, 957 F.Supp. 150 (N.D.Ill. 1997). [1997 FP 99-100]
     Federal court upholds handwritten, contractually deficient grievance. Employer had sufficient notice of the claim, and "high standards of draftsmanship" are not required of employees. McKesson v. IBT L-730, 199 U.S. Dist. Lexis 2663, 957 F.Supp. 1 (D.D.C.). [1997 FP 83]
     Federal appeals court allows employee to sue his employer for breach of contract, following an unfavorable arbitration award. Bargaining agreement failed to state that grievance arbitrations are "final, binding or exclusive." Orlando v. Interstate Container Corp., 100 F.3d 296, 1996 U.S.App. Lexis 29001, 153 LRRM (BNA) 2737 (3rd Cir.). [1997 FP 19]
     Illinois Supreme Court refuses to enforce an arbitration award that ordered the reinstatement of a case investigator who had filed a false incident report. Reinstatement would be contrary to public policy. AFSCME v. Dept. Central Mgmt. Serv., 173 Ill.2d 299, 1996 Ill. Lexis 91, 671 N.E.2d 668. [1997 FP 19-20]
     Pennsylvania county commissioners could not consent to a disciplinary arbitration clause in the contract with the correctional officers' union, because a state statute vested power to hire and fire officers in the county's prison board. Fayette Co. v. AFSCME C-84, 1996 Pa.Commw. Lexis 331, 153 LRRM (BNA) 2370. [1997 FP 20]
     Badly divided appellate court affirms an arbitration decision; new evidence cannot be used to judicially attack an award. Arbitration between Obot and Dept. of Corr. Serv., 637 N.Y.S.2d 544 (A.D. 1996). [1996 FP 147]
     Federal appellate court enforces arbitration clause in employment agreement for her sexual harassment claim under Title VII. Rojas v. TK Communications, 71 FEP Cases (BNA) 664 (5th Cir. 1996). {N/R}
     American Arbitration Association adopts revised procedural rules for mediation and arbitration of employment disputes to enlarge due process rights of employees. See 103 LA (BNA) 21-19 (Nondecisional material) or download rules at: www.adr.org/ [1996 FP 115]
     1986 contract clause requiring arbitration of "any claim or controversy" did not waive the rights of employees to sue for federal handicap discrimination or FML violations. Hoffman v. Aaron Kamhi Inc., 927 F.Supp. 640, 1996 U.S. Dist. Lexis 3600, 5 AD Cases (BNA) 707, 3 WH Cases2d (BNA) 445 (S.D.N.Y.). [1996 FP 115]
     Divided federal appeals court bars an employee from bringing a discrimination suit against her employer for ADA and Title VII violations. Arbitration clause in the CBA prevails. Austin v. Owens-Brockway, 78 F.3d 875, 1996 U.S. App. Lexis 4370, 70 FEP Cases (BNA) 272 (4th Cir. 1996); cert. den. 519 U.S. 980, 117 S. Ct. 432, 1996 U.S. Lexis 6861. [1996 FP 99-100]
     Pennsylvania appeals court upholds an arbitrator's decision to increase the penalty to termination. Penna. St. Trprs. Assn. v. Penna. St. Police, 667 A.2d 38 (Pa.Cmwlth. 1995). [1996 FP 67]
     Federal court allows employee to sue employer for damages in a civil rights suit, even though the bargaining agreement provides for arbitration of disciplinary actions. Tang v. Rhode Island, 904 F.Supp. 69, 69 FEP Cases (BNA) 577 (D.R.I. 1995). [1996 FP 51]
     Pennsylvania federal court holds that an employee's damage suit against his employer was preempted by a national labor relations law. Furillo v. Dana Corp., 866 F.Supp. 842 (E.D.Pa. 1994). [1996 FP 51]
     Wisconsin Supreme Court concludes that sheriffs are bound by arbitration awards and civil service decrees; they must redeputize and fully reinstate terminated deputies if so ordered. Brown Co. Sheriff's Dept. v. BCSD Employees’ Assn., 533 N.W.2d 766 (Wis. 1995). [1996 FP 35]
     State supreme court upholds a county personnel commission order to reinstate a deputy sheriff. The “unbridled power” to appoint deputies “threatens the quality of law enforcement” and “will discourage qualified candidates from seeking the position of deputy sheriff.” Heitkemper v. Wirsing, 533 N.W.2d 770 (Wis. 1995). [1996 FP 35]
     Alaska rejects all damage suits by an employee against arbitrator; full judicial immunity extended to arbitration proceedings. Feichtinger v. Conant, 893 P.2d 1266 (Alaska 1995). [1996 FP 19]
     Colo. supreme court voided a mandatory arbitration clause the employer raised to defend a suit for compensation allegedly owed a sales rep. A statute allowed employees to sue for wages and earnings; a statutory remedy may not be supplanted by arbitration clauses in employment agreements, including the Uniform Arbitration Act. Lambin v. Dist. Ct. 18th Dist., 2 WH Cases (BNA) 1647, 64 LW 2352. {N/R}
     “An arbitration award will not be vacated when the arbitrator explains his decision in terms that offer even a barely colorable justification for the outcome reached, even if the arbitrator's interpretation of the contract is clearly erroneous.” Great Atlantic v. Local 338, 1996 U.S. Dist. Lexis 7207/*3 (S.D.N.Y.), quoting Meyers v. Parex, 689 F.2d 17/18 (2d Cir. 1982). {N/R}
     Appeals court upholds termination of employee who was denied legal representation at the disciplinary hearing before an arbitrator. Panel concludes that a terminated employee is not entitled to have his own attorney present at the grievance arbitration hearing. No evidence absence of counsel would have made a difference. Garcia v. Zenith Electronics, 58 F.3d 1171 (7th Cir. 1995). [1995 FP 174]
     Federal agency had a duty to bargain with the union before abandoning a practice of allowing its police officers to wear their firearms when commuting to and from work. G.S.A. Federal Protective Service Div. and AFGE L-1733, 50 FLRA No. 90, 33 (1629) G.E.R.R. (BNA) 1102 (1995). [1995 FP 169]
     Arbitrator was not bound by the technical rules of evidence and a court will not set aside an award because inmates were allowed to testify the accused corrections officer had engaged in similar conduct dating earlier than the 12-month period of limitations for charging employee misconduct, even though such testimony would be inadmissible in court. St. Lawrence Co. Dep. Sheriffs L-2390 and Co. of St. Lawrence, 213 A.D.2d 875; 623 N.Y.S.2d 661, 1995 N.Y.App.Div. Lexis 2837 {N/R}
     Officer could not seek arbitration of his termination because the bargaining agreement did not unequivocally create that right. Stilling v. Franklin Twp., 97 Ohio App.3d 504, 646 N.E.2d 1884 (1994). [1995 FP 147]
     Federal appeals court vacates $1000 penalty imposed on employer by arbitrator. Island Creek C.C. v. Dist. 29 U.M.W., 29 F.3d 126 (4th Cir. 1994). [1995 FP 147]
     Eighth Circuit reinstates a $31,800 punitive award because the Fed. Arbitration Act (9 U.S. Code §9) prevents courts from vacating awards in the absence of corruption, fraud, undue means or partiality. Also, rule 43 of the American Arbitration Assn. specifically allows arbitrators to award "any remedy or relief that the arbitrator deems just and equitable" including punitive damages. Many bargaining agreements provide that the rules and procedures adopted by the AAA will apply. Lee v. Chica, 983 F.2d 883 (8th Cir. 1993), cert.den. 114 S.Ct. 287. {N/R}
     Arbitrator declines to interpret OSHA regulations; grievance denied. Dyno Nobel and O.C.&A.W. Local 5-713, 104 LA (BNA) 376 (Hilgert, 1995). {N/R}
     Pa. Supreme Court limits the scope of courts that review arbitration awards, based on a state statute. Interpretation makes it difficult for fire and police chiefs to bring unbecoming conduct charges. Pa. St. Police v. Pa. St. Troopers (Betancourt), 656 A.2d 83, 1995 Pa. Lexis 199 (reversing 633 A.2d 1278 (Pa.Cmwlth. 1993). [1995 FP 115-6]
     Federal appeals court strikes down a collective bargaining provision that awarded attorneys' fees to the prevailing party. Moore v. L-569 IBEW, 53 F.3d 1002 (9th Cir. 1995). [1995 FP 116-7]
     In reviewing a reinstatement agreement allowing discharge without recourse, an arbitrator would still have jurisdiction to verify that the employee had, in fact, violated work rules, but could not reduce the punishment. Gencorp Auto. and United R.C.L.&P. Workers L-626, 104 LA (BNA) 113 (Malin, 1995). [1995 FP 100-1]
     U.S. Supreme Court decides that courts must determine whether a dispute is arbitrable, unless that in the arbitration agreement the parties have agreed to submit that question to arbitration. Courts should apply ordinary principles of law. First Options v. MK Investments, 115 S.Ct. 1920 (1995). {N/R}
     Federal appeals court finds it was improper for an employer to offer reinstatement to a terminated employee on condition he waive his rights to contest future disciplinary action. Retlaw v. N.L.R.B., 53 F.3d 1002 (9th Cir. 1995). [1995 FP 100]
     Supreme Court allows arbitrators to award punitive damages, even if state law provides only courts may do so. Mastrobuono v. Shearson L-H Inc., 115 S.Ct. 1212 (1995). [1995 FP 84-5]
     NY rules that state and federal courts lack power to compel expedited arbitration. Salvano v. Merrill Lynch, 647 N.E.2d 1298, 10 IER Cases (BNA) 524 (N.Y. 1995). {N/R}
     Arbitrator ordered the reinstatement of an errant officer because he was not provided a pretermination hearing. The arbitrator then ruled the department cannot cure the procedural defect by holding a hearing and discharging the officer a second time. Benton Harbor (City of) and FOP Lts. & Sgts. Assn., 103 LA (BNA) 816 (Allen, 1994). [1995 FP 67]
     Federal appeals court concludes that an arbitration clause survives beyond the contract expiration date, absent conduct or contract language to the contrary. Luden's v. Local 6, 28 F.3d 347 (3rd Cir. 1994); reh. en banc denied. [1995 FP 68]
     Divided Pennsylvania appellate court holds that arbitrators have no power to reduce disciplinary punishment unless so empowered in the bargaining agreement. Penn. St. Police v. F.O.P., 634 A.2d 270 (Pa.Cmwlth. 1993). [1995 FP 20]
     Federal court concludes that an ADA claim is barred because plaintiff failed to submit to the arbitration procedures required under the coll. brg. agmt., Austin v. Owens-Brockway Glass Cont. Inc., 844 F.Supp. 1103 (W.D.Va. 1994). Result questioned by another federal court in Block v. Art Iron Inc., 3 AD Cases (BNA) 1361 (N.D.Ind. 1994), in Schmidt v. Safeway, 3 AD Cases (BNA) 1141 (D.Ore. 1994) and Bruton v. SEPTA, 3 AD Cases 1170 (W.D. Pa. 1994). {N/R}
     Appellate court overturns arbitration award that set aside officer's termination because the city waited for more than a year before initiating disciplinary charges. Philadelphia (City of) v. F.O.P. Lodge 5, 633 A.2d 1321 (Pa. Cmwlth. 1993). [1994 FP 163]
     Article discussing arbitration of EEO and employment law claims: See 10 (4) The Labor Lawyer (ABA) 667 at 675 (Fall 1994).
     Discharged police officer could contest his termination through arbitration even though the contract had expired and a competing union was later certified. Mangonia, Town of and Palm Beach P.B.A., 102 LA (BNA) 37 (1993). [1994 FP 131]
     Montana Supreme Court rules an employee may pursue a civil rights suit for wrongful discharge even if an arbitrator has upheld his termination. Miller v. Co. of Glacier, 851 P.2d 401 (Mont. 1993). [1994 FP 84]
     Appellate court in Wisconsin holds that a requirement in the bargaining agreement that an employee complete the arbitration process before obtaining judicial review is lawful and does not violate due process. Wallace v. Daguanno, 499 N.W. 264 (Wis.App. 1993). [1994 FP 84]
     N.M. Supreme Court upholds arbitration award which reinstated a police officer who repeatedly had sex with a 17-year old. Silver City (Town of) v. Garcia, 857 P.2d 28 (N.M. 1993). [1994 FP 19]
     Appellate court upholds clause in bargaining agreement that allows termination without appeal for being AWOL. Guilford v. City of Buffalo, 577 N.Y.S.2d 1017 (A.D. 1991). [1993 FP 3]
     Article: "Directing the flood: the arbitration of employment claims," 10 (2) The Labor Lawyer (ABA) 217-238 (Winter 1994).
     U.S. Supreme court upholds arbitrability of statutory employment discrimination claims (under the A.D.E.A.); employee waives right to sue in court. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647 (1991). {N/R} Note: H.R. 4981 and S. 2405, introduced in 1994 as the Civil Rights Protection Act would have reversed the Gilmer decision in ADEA, Title VII, Rehab. Act, ADA and F&MLA cases; it was not enacted.
     Alaska Supreme Court upholds the constitutionality of binding interest arbitration. Anchorage v. Anchorage Police Empl. Assn., 839 P.2d 1080 (Alaska 1992). [1993 FP 83]
     "The arbitrator is a creature of contract selected by the parties to interpret and apply the terms and provisions that they have negotiated and agreed to. It is not within the authority of the arbitrator to substitute his own concepts of fairness or justice for those that the parties have established." Univ. of Mich. and Mich. Assn. of Police, 103 LA (BNA) 401, 403. (Daniel, 1994). {N/R}
     Florida appeals court rules that public employees may not contest disciplinary action via grievance and arbitration, absent a specific provision in the contract allowing such resolution. City of Opa-Locka v. Dade Co. P.B.A., 610 So.2d 518 (Fla.App. 1992). [1993 FP 115]
     Arbitrator properly imposed a two-year term on a disputed contract although neither party sought it. Board of Supervisors v. Butler Twp. Police, 621 A.2d 1061 (Pa.Cmwlth. 1993). [1993 FP 163]
     A grievance may not be submitted to arbitration where the contract specifically provides an alternative remedy. Council Bluffs Firefighters v. City of Council Bluffs, 497 N.W.2d 175 (Iowa 1992). [1993 FP 163]
     Appellate court upholds clause in bargaining agreement that allows termination without appeal for being AWOL. Guilford v. City of Buffalo, 577 N.Y.S.2d 1017 (A.D. 1991). [1993 FP 3]
     "Public policy considerations and the prevailing trend in other jurisdictions persuade [the Nevada Supreme Court] to apply the doctrine of collateral estoppel to arbitration." The second arbitrator "was bound by the prior contract interpretation" by the first arbitrator. IAFF L-1285 v. Las Vegas, 107 Nev. 906, 823 P.2d 877, 1991 Nev. Lexis 194. {N/R}
     Arbitrator could lawfully order reinstatement under the CBA power to modify any punishment imposed, but could not order prospective relief, requiring the employer to accommodate his religious beliefs by allowing him to take leave on Fridays. N.Y. Dept. of Corr. Svc. v. C-82 AFSCME, 575 N.Y.S.2d 175, 1991 N.Y.App.Div. Lexis 13060. {N/R}
     Contract clause prohibiting mandatory overtime for correctional officers was unlawful and adversely impacted public safety. Vose v. R.I. Bro. of Corr. Ofcrs., 587 A.2d 913 (R.I. 1991). [1992 FP 35]
     Arbitrator, not court, should decide whether a dispute is arbitrable where the scope of arbitration was reasonably debatable. Duluth Police Local v. City of Duluth, 466 N.W.2d 36 (Minn.App. 1991). [1992 FP 35]
     Arbitrator could not reinstate an officer because of due process violations, absent authority to do so in the employment contract. Philadelphia v. F.O.P. Lodge 5, 592 A.2d 779 (Pa. Cmwlth. 1991). [1992 FP 115]
     Pennsylvania holds that civil service code is not the exclusive method of processing disciplinary hearings; discharged employees can use grievance mechanism leading to binding arbitration. Henshey v. Twp. of Lower Merion, 588 A.2d 83 (Pa.Cmwlth. 1991). See however, Milwaukee Police Assn. v. City of Milwaukee, 335 N.W.2d 417 (Wis.App. 1983). [1992 FP 67]
     Police Dept. may not force an employee to have disciplinary trial heard by the civil service commission when the collectively bargained agreement allows arbitration of disciplinary grievances. Bindell v. City of Harvey, 571 N.E.2d 1017 (Ill.App. 1991). [1992 FP 147]
     A party to an arbitration hearing waives the right to a verbatim record if no objection is raised to the absence of a tape recorder. Polk Co. Deputy Sheriffs Ass'n v Polk Co., 104 Or. App. 738, 802 P.2d 1301 (1990).
     City required to arbitrate a grievance which arose when the bargaining contract was in effect, even though the contract has expired. Bor. of Philipsburg v. Bloom, 554 A.2d 166 (Pa. Cmwlth. 1989).
     Absent a contract provision to the contrary, an employer may combine two different offenses committed by the same employee to obtain a second level of punishment in the progressive discipline schedule. Wilbur Chocolate Co. v. BC&TWU L-464, 1988 U.S.Dist. Lexis 2896 (E.D.Pa.). {N/R}
     City could not require firefighter to waive a right to a hearing and drop his back pay claim if he is reinstated. Intern. Assn. of Fire Fighters, Local 1285 v. City of Las Vegas, 764 P.2d 478 (Nev. 1988).
     Acquittal of a police officer in a criminal prosecution did not bar his termination for conduct unbecoming. Res Judicata and Collateral Estoppel doctrines do not apply. However, "... a determination of innocence in the criminal forum does increase the employer's burden of persuasion that discharge is warranted." Muskegon Heights Police Dept. and Teamsters L-214, 88 LA (BNA) 675 (Girolamo, 1987). {N/R}
     Individual employee has standing to compel arbitration of his demotion unless contract withholds that right. Paranko v. St. of Conn., 200 Conn. 51, 509 A.2d 508 (1986).
     Supreme Court warns that “by agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute.” Rather, the agreement only submits the dispute to an arbitral, rather than a judicial, forum. Mitsubishi Motors v. Soler, 473 U.S. 614 /at 628 (1985). {N/R}
     Arbitrator could reduce termination punishment to suspension; could not order department to restore law enforcement powers. Monroe Co. Sheriff v. FOP L-113, 357 N.W.2d 744 (Mich. App. 1984).
     City may not avoid arbitration by alleging union breached agreement and arbitration clause was voided. Fraternal Order of Police L-108 v. Village of Washington Park, 462 N.E.2d 855 (Ill.App. 1984).
     Firefighter arbitration initiative violated state law; home rule provision not applicable. West Palm Beach F/F L-727 v. Board of Cmsnrs., 448 So.2d 1212 (Fla. App. 1984).
     Employees who lose a grievance arbitration may still file a civil rights suit for damages and lost pay. McDonald v. City of West Branch, Mich. 104 S.Ct. 1799 (1984).
     Arbitration of grievance clauses cannot deprive civil service authority of jurisdiction in termination cases. Milwaukee Police Ass'n v. City of Milwaukee, 335 N.W.2d 417 (Wis. App. 1983).
     Missouri appeals court upholds legality of mandatory grievance arbitration; firefighter entitled to challenge promotional scheme. Roberts v. City of St. Joseph, 637 S.W.2d 98 (Mo.App. 1982).
     City could not avoid state arbitration law with local home rule ordinance relating to firefighter bargaining. City of Roseburg v. Roseburg City Firefighters L-1489, 622 P.2d 755 (Ore. App. 1981).
     Kentucky rules arbitration is unlawful unless expressly authorized by statute; ordinance unenforceable. City of Covington v. Covington Lodge FOP, 622 S.W.2d 221 (Ky. 1981).
     Firefighters must elect to pursue remedies under either civil service or arbitration; Illinois rejects double-barreling. Sefren v. Board of Trustees, Addison Fire Prot. Dist., 377 N.E.2d 341 (Ill.App. 1978).
     Texas arbitration act struck down; unconstitutional delegation of discretionary powers to judicial branch. Intern. Assn. of Firefighters Local 2390 v. City of Kingsville, 568 S.W.2d 391 (Tex. Civ. App. 1978).
     Court can remove partial arbitrator. Freeport Construction Co. v. Star Forge, Inc., 378 N.E.2d 558 (Ill.App. 1978).
     Utah Supreme Court invalidates mandatory and binding arbitration; unlawful delegation of legislative powers cited. Salt Lake City v. IAFF, 563 P.2d 786 (Utah 1977).
     Pension changes upheld. City of East Providence v. Local 850, Intern. Assn. of Fire Fighters, 366 A.2d 1151 (R.I. 1976).
     Existence of grievance arbitration mechanism should not delay hearing of unfair labor practice charge; deferral improper. Detroit Fire Fighters Assn. L-344 IAFF v. City of Detroit, 293 N.W.2d 278 (Mich. 1980).
     Arbitration clause providing for final determination of grievances is enforceable; rights of parties to sue is cut off. Voss v. City of Okla. City, 618 P.2d 925 (Okla. 1980).
     Minnesota Supreme Court upholds public employment arbitration law. City of Richfield v. Local 1215, Int. Assn. of Fire Fighters, 276 N.W.2d 42 (Minn. 1979).
     Police and fire arbitration laws upheld in Michigan and Oregon; not a violation of home rule provision. Medford Firefighters’ Assn. v. City of Medford, 595 P.2d 1268 (Ore. App. 1979); City of Detroit v. Detroit Police Officers’ Assn., 1979-80 PBC ¶ 36,959, 294 N.W.2d 68 (Mich. 1980). FP #3427C.
     Collectively bargained agreement on binding arbitration of disputes involving suspensions or promotions held unenforceable. Taylor v. Crane, 140 Cal.Rptr. 468 (App. 1977).
     The role of a reviewing court is limited in arbitration disputes. Lansing Fire Fighters Assn. L-21 v. City of Lansing, 282 N.W.2d 346 (Mich. App. 1977).
     A dispute about a police officer's eligibility for disability benefits under a pension plan was not arbitrable under the contract, where the plans were not a part of the agreement and were not incorporated by reference. Policemen's & Firemen's Retir. Bd. of New Haven v. Sullivan, 68 LA (BNA) 771 (Conn. 1977). {N/R}
     Effect of absence of "past practices" clause. Milwaukee Professional Firefighters Local 215 IAFF v. City of Milwaukee, 253 N.W.2d 481 (Wisc. 1977).
     Constitutionality of grievance arbitration upheld in Pennsylvania. Appeal of City of Bethlehem v. L-735, IAFF, 367 A.2d 409 (Pa. Cmwlth. 1976).
     Two Michigan Supreme Court justices uphold arbitration law, two vote to strike it down; three justices absent. Dearborn Fire Fighters Union L-412, IAFF v. City of Dearborn, 231 N.W.2d 226 (Mich. 1975).
     South Dakota supreme court strikes down firefighters arbitration law as unconstitutional delegation of legislative powers. City of Sioux Falls v. Sioux Falls Fire Fighters, 234 N.W.2d 35 (S.D. 1975).
     New York high court reverses lower opinion; upholds constitutionality of mandatory arbitration. City of Amsterdam v. Helsby and City of Buffalo v. New York State Employment Relations Board, 37 N.Y.S.2d 19, 371 N.Y.S.2d 404, 332 N.E.2d 290 (1975) (reversing 362 N.Y.S.2d 968 and affirming 363 N.Y.S.2d 896).
     Pension plan formula determined grievable and arbitrable. Controversy was properly before the public employee relations commission. Mt. Clemens Firefighters Local 838 v. Mt. Clemens, 228 N.W. 2 500 (Mich. App. 1975).
     Constitutionality of arbitration discussed. City of Spokane v. Spokane Guild Local 29, #222442, Sup'r Ct. (Spokane Co. Wash. 1975); Antinore v. St. of N.Y., 371 N.Y.S.2d 213 (A.D. 1975).
     Scope of Judicial Review. Albany Perm. Prof. Firefighters Assn. v. Corning, 376 N.Y.S.2d 796 (Misc. 1975).
     Collusion; conflict of interest. Union L-1296, IAFF v. City of Kennewick, 542 P.2d 1252 (Wash. Dec. 1975).
     Corruption vitiates award. Teamsters L-11 v. Abad, 343 A.2d 804 (N.J. Sup'r 1975).
     Arbitrability of Pensions. City of Lansing and Lansing Firefighters Assn., L-421 IAFF, (Bodwin, 1975); Mt. Clemens Firefighters Union, L-838 IAFF v. City of Mt. Clemens, 58 Mich. App. 635 (1975).
     An employee's right to litigate Title VII discrimination claims cannot be waived in a collective bargaining agreement. Alexander v. Gardner-Denver Co, 415 U.S. 36, 94 S.Ct. 1011 (1974).
     A state Employment Commission finding that an employee was discharged for cause (and should be deprived of four weeks of unemployment benefits) was not binding on an arbitrator who would determine the merits of the employee's discharge. Fawn Engineering Corp. and Automobile Workers L-270, 63 LA (BNA) 1307 (Fitch, 1974). {N/R}
     Contract interpretation: An "arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice." While an arbitrator may “look for guidance from many sources... his award is legitimate only so long as it draws its essence from the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel, 363 U.S. 593/at 597, 80 S.Ct. 1358/at 1361 (1960). {N/R}

     See also: Alternative Dispute Resolution and Access to Courts, Arbitration Punishment Awards – Right of Courts to Interfere, Collective Bargaining, Disciplinary Procedures and Impasse Arbitration.


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