Labor & Employment Law

Opaque "Make whole" award unenforceable, court remands to arbitrator for resolution

Due to budget cuts at the City of Oakdale, Kimberly Mossman lost her job. She claimed she had bumping rights under the City's personnel rules, and the parties agreed to arbitrate the dispute.

An arbitrator decided that the City violated its own personnel rules. Then the arbitrator provided this award:

?The remedy in this case requires adaptation to present circumstances. The hearing in this case occurred almost one year after the relevant vacancies were filled. By that time, the new occupants had cultivated some degree of expertise. While this factor must not block Mossman from receiving appropriate relief, there is merit in allowing the parties time to assess present circumstances in the context of the findings set forth above, so that their mutual interests may be best served.?

What did that mean?

The City tried to get the award vacated on the ground that the arbitrator acted outside her jurisdiction by failing to decide the issue that was presented to her.

The California Court of Appeal refused to vacate the award on that ground. At the same time, the court didn't see how it could enforce the award the way it was written. Therefore, the court remanded the dispute to the arbitrator for a more specific calculation of the award. Mossman v. City of Oakdale (California Ct App 01/14/2009).

Why didn't the parties themselves go back to the arbitrator?

Perhaps because she was slow in rendering the original award. The parties had to write to her to urge that the award be issued.

Perhaps because the arbitrator reserved jurisdiction for only 30 days. But the court did not consider itself bound by the arbitrator's 30 day limit. The court noted that the parties did not place a limit on the arbitrator's post-award jurisdiction, and assumed that the 30 days was a mere "calendar-managing tool for the arbitrator."

My view: Too bad the parties ate up so much time, money, and energy litigating a case that they previously had decided to arbitrate. For some reason they decided not to go back to the arbitrator for clarification or for help in resolving their new dispute about the details of the remedy. In the end, the court made them do that anyhow.

Full post as published by Arbitration Blog on January 18, 2009 (boomark / email).