Sunday, October 23, 2016

Arbitrator's duty to disclose and evident partiality

The City of Mason, Ohio and the Mason Professional Firefighters Union were parties to a dispute about the termination of a bargaining unit employee. After the arbitrator initially selected disclosed a potential conflict of interest, the parties selected another arbitrator from a list provided by FMCS.  The parties selected arbitrator Howard Tolley. Following a hearing Arbitrator Holly upheld the Union's grievance and ordered the reinstatement of the grievant with back pay. He found that the City failed to conduct a fair, objective investigation and that it lacked substantial evidence of guilt. Together with his award, Arbitrator Tolley submitted an invoice. The signature block on the invoice identified him as the Executive Director of Unitarian Universalist Justice Ohio. The City maintained that this was the first time it became aware of the arbitrator's position with the organization which, according to its mission statement, "organized justice seekers statewide to promote  education, service, and advocacy consistent with Unitarian Universalist liberal religious principles and to witness with and on behalf of marginalized groups and individuals."

The City sought to set aside the award, arguing that the arbitrator had failed to disclose his employment with UUJO, that he was not qualified under the terms of the cba, and that it would not have selected him had it know of his position with the organization. The City claimed that these facts supported a claim of evident partiality, a basis to set aside the award. The magistrate hearing the City's motion denied the request to vacate, and the City's objections to that decision were overruled by the trial court.

On the City's appeal, the Court of Appeals of Ohio reversed.  Relying in part on what it described as the seminal case on the issue of undisclosed background information (Commonwealth Coatings Corp. v. Continental Das. Co.) the  Court held

Based on our review, we find the facts and circumstances in the present case depart from normal procedures of arbitration significantly enough to find evident partiality. The record in this case establishes that Tolley's involvement with UUJO is not indirect or trivial in the sense that he was an arms-length member of an organization supporting some social justice positions.

The record further supports the city's position that they were prejudiced by the nondisclosure of this information. While UUJO aligns itself with many issues and causes, the record before the court does indicate the support of a number of positions that would be unacceptable to a party representing the management side of an arbitration decision. [footnote omitted]

Accordingly the Court vacated the award.

The Court's decision in City of Mason v. Mason Professional Firefighters can be found here.

No comments:

Post a Comment