Union waived challenge to arbitrability
In AFSCME Council 93 v. School Department of Burlington, the Massachusetts Supreme Judicial Court reversed a lower court decision setting aside an arbitrator's award. The arbitrator issued an award in favor of the School Department. The union challenged the award but the superior court confirmed the award. On the Union’s appeal the appellate court reversed and found that the arbitrator had exceeded her authority in finding that the grievant was a civil service employee and therefore not subject to the grievance and arbitration clause of the cba. The Department appealed and the SJC reversed, finding that the issue of arbitrability had been raised before the arbitrator and the union had not challenged the arbitrator’s authority to make a determination of that issue until its appeal to the superior court. Accordingly the court concluded that “Where there was no objection, we think the arbitrator did nothing wrong by deciding the issue”.
Arbitrators could not be compelled to appear for depositions
In Administrative District Council 1 of Illinois Union of Bricklayers v. Masonry Co., Administrative District Council 1 of Illinois Union of Bricklayers v. Masonry Co., the U.S. District Court for the Northern District of Illinois quashed subpoenas for deposition issued to two arbitrators. After a decision in favor of the union on a wage dispute the union sought to compel compliance with the award and Masonry Company sought to vacate the decision. Masonry asserted that two members of the Joint Arbitration Board were not impartial and sought to require them to sit for depositions on that issue. In quashing the subpoenas the court noted that while there was not a blanket prohibition against deposing arbitrators where they posses directly relevant and probative evidence concerning the issue on which the challenge is based, such discovery is inappropriate where the testimony to be elicited goes to the correctness of the decision. In order for a losing party to compel an arbitrator to submit to discovery concerning his partiality, the losing party must offer “factual allegations” as to that claimed partially. “The mere fact that that there are circumstances that suggest the possibility that an arbitrator might have been partial to the prevailing party, or that there is an allegation of an appearance of such partiality, is not sufficient to meet the threshold burden”. Finding no such specific factual allegations in this case, the court quashed the subpoenas.
Arbitrator denied losing party due process by deciding on a basis neither party had raised
In Township of Montclair v. Montclair PBA Local No. 53, the NJ Appellate Division remanded a dispute to the arbitrator with instructions to confer with the parties about the need to present additional evidence and allow the parties to present evidence on the issue identified by the arbitrator in his award.
The underlying grievance involved a claim that the police department had violated the parties’ agreement by changing a claimed practice of calling in officers on overtime when minimum staffing levels were not reached. Instead, the department began assigning supervisors to patrol duties. The union relied on contract language which sought to preserve existing practices, while the department relied on a management rights clause authorizing it to make rules of procedure and to “promote, transfer, assign and reassign employees” and to establish and change work schedules. In his decision the arbitrator addressed neither of these issues but determined that the threshold question was whether the supervisors were covered by the recognition clause. Finding that they were not, he concluded that because supervisors were not part of the bargaining unit “assignment of bargaining unit work to supervisors violates the [agreement].”
The Appellate Division concluded “By predicating his ruling upon an issue that neither party raised nor had notice of, the arbitrator effectively denied the parties the right to marshal evidence and be heard on the pivotal issue identified by the arbitrator.” The court did not otherwise address the merits of the arbitrator’s decision, but remanded for further action to remedy what it believed to be a denial of fundamental fairness.