By Jim Cline
Just last month, we wrote about a recent Ninth Circuit decision involving the Oregon Marion County Sheriff’s Office, in which the Ninth Circuit ruled that the enforcement of an arbitration award might be an enforceable “property interest” within the meaning of the due process clause. In that same article, we noted that this might provide labor organization an additional tool for enforcing arbitration awards. We also noted the 2009 Kitsap County Deputy Sheriffs’ Guild Supreme Court decision holding that “final and binding” decisions were, well, “final and binding”:
The Ninth Circuit decision concerning the “final and binding” nature of arbitration decisions was based on Oregon state court interpretations but those same court interpretations have been adopted in Washington State. In another recent case involving our firm and the Kitsap County Deputy Sheriffs’ Guild, the Washington State Supreme Court agreed that the “public policy” exception to the enforceability of arbitration awards related not to the nature of the misconduct involved (in the Kitsap case, untruthfulness) but in whether the reinstatement of the officer was barred by public policy.
We also noted in that same blog article that:
Since the Kitsap decision, the number of employer attacks on arbitration decisions has diminished, but has not ceased. Working to ensure that you can recover your attorney fees, when these unwarranted “appeals” from final and binding arbitration awards are undertaken, may create an additional deterrent to such attacks.
Now the State Supreme Court — in International Union of Operating Engineers v. Port of Seattle— has ruled in another challenge to a labor arbitration decision, that it meant what it said in Kitsap — that a challenge that an arbitration decision should be vacated because it violates “public policy” will be rejected unless it can be demonstrated that public policy bars the reinstatement of the employee, not the underlying conduct that was subject to the original discipline.
The facts of the Port of Seattle case are somewhat unusual and might explain why the lower courts had struggled with the case. It also appears that the lawsuit was filed between the Kitsap Court of Appeals decision, which opened arbitration decisions up to attack and the Supreme Court decision, which hopefully put this issue to rest. The Supreme Court explained the case and its reasoning:
The arbitration award in this case reinstated Port of Seattle (Port) employee Mark Cann with a 20-day unpaid suspension after he was terminated for hanging a noose in the workplace for nonracial reasons. The reviewing trial court found this punishment so lenient that it violated the public policy against racial harassment in the workplace and imposed a six-month unpaid suspension instead.
Although the noose has a hateful, racist, and violent history in this country and we condemn Cann’s ignorant and unacceptable actions, our scope of review is extremely limited. We only review the arbitrator’s award and not the underlying conduct. In this case, the arbitrator found that Cann intended the noose as a joke toward an older white co-worker. The arbitrator determined that Cann’s impression of a noose was “not racial” and that in this situation, Cann was “more clueless than racist.” Clerk’s Papers (CP) at 655, 657. The arbitrator also noted that the white employee targeted by the “joke,” id. at 652, was not offended, and an African-American employee who observed the noose was angry, but did not feel harassed. In light of these facts and Cann’s 12 years at the Port with no performance problems, the arbitrator determined that a 20-day unpaid suspension was the appropriate discipline. Given that Cann’s 20-working-day unpaid suspension amounts to a month without pay, and given that so many working families live month to month, we find that to be a substantial penalty. As we are bound by the arbitrator’s findings of fact, we cannot find that a 20-day suspension was insufficient to deter such conduct in the future.
As is often the case, the “bad facts” on the underlying discipline sometimes makes it tempting for lower courts to reverse arbitrators based on what they believe to be socially unacceptable conduct of the discipline employee. But the Supreme Court here, again says, that it meant what it said in Kitsap — that it is up to the arbitrator and not the courts to determine the appropriate penalty and it will not second-guess the arbitrator’s determination.
In Kitsap and again in Port of Seattle, the court did follow the prevailing federal standard, which calls for setting aside arbitrator’s awards only when the reinstatement of the employee would violate public policy. There have been cases where courts have properly concluded that public policy bars reinstatement. The most common example of cases subject to attack, arises in the context of sexual harassment where courts have found that supervisors who repeatedly harassed subordinates, could not be returned to the workplace because the return to the workplace would violate the public policy prohibiting sexual harassment in the workplace.
In Port of Seattle, the employer argued that this sexual harassment line of cases applied to the racial harassment associated with hanging a noose, which was observed by African-American coworkers. But the court indicated that it, and the lower courts were bound by the arbitrator’s fact determination that the action was not racially motivated, was intended as a joke against white coworkers and that the grievant was “clueless”, but not racist. As the Supreme Court had suggested in Kitsap, once those conclusions were reached by the arbitrator, the court was not empowered to second-guess those decisions.
Had the arbitrator found that the grievant was racially motivated and still put him back to work anyway, the court would have most likely overturned the award. But instead, it explained:
As described above, we are bound by the arbitrator’s findings of fact. As a result, we must accept the arbitrator’s findings regarding Cann’s understanding of the symbolism of the noose, as well as the findings on the effect of the noose on the other employees in the workplace. When we take into account the specific circumstances of this case, we cannot say that a 20-day unpaid suspension would not provide sufficient discipline to cause this, or other employees to understand the serious nature of a noose in the workplace, and thus prevent a similar incident in the future.
