Arbitration & Mediation

*** Arbitration - Individual Arbitration Agreements ***

• TX ? Employee must arbitrate non-compete claim.

• KY - Arbitrator exceeded his authority by applying arbitration provision in 2003 agreement to 1997 agreement.

• TX - "Initiate" grievance procedure required full participation in process.

*** Arbitration - Collective Bargaining Agreements ***

• NJ ? Arbitrator?s interpretation of "issue presented" is entitled to the same level of deference generally afforded arbitration awards.

• 7th - Employee failed to establish employer breached CBA in hybrid 301 action.

*** Arbitration - Individual Arbitration Agreements ***

TX ? Employee must arbitrate non-compete claim.

Per Group v. Dava Oncology (Texas Ct App 08/19/2009)
http://tinyurl.com/m3nkf8

The employer appealed the trial court?s order denying a motion to compel arbitration of certain claims in this contractual dispute between the employer, its former employee, and another entity.  The dispute centered on whether the employee violated a non-compete provision in an agreement between the employer and employee.  The court reversed, concluding that 1) the Texas General Arbitration Act applied to the case; 2) the parties? agreement contained an arbitration clause, incorporated by reference from a different document; and 3) the trial court erred in interpreting the scope of the parties? arbitration agreement.

KY - Arbitrator exceeded his authority by applying arbitration provision in 2003 agreement to 1997 agreement.

Jacob v. Dripchak (Kentucky Ct App 08/21/2009)
http://tinyurl.com/n3ola2

The trial court confirmed an arbitration award in favor of the employer and an arbitration award in favor of the employee in a dispute about two contracts. The Kentucky Court of Appeals affirmed in part and reversed in part. The key argument was whether the arbitrator had authority to decide issues raised under the 1997 agreement, which did not contain an arbitration clause. The court affirmed that the arbitrator had authority to determine issues under the 2003 agreement, which contained a mandatory arbitration clause. The court found that there was absolutely no reservation of claims in the 2003 agreement for any dispute or claim that arose between the parties under the 1997 agreement or any subsequent renewals. The court concluded that the arbitrator exceeded his powers in awarding under the 1997 agreement that otherwise was not properly before the arbitrator and that further did not contain a mandatory arbitration clause.

TX - "Initiate" grievance procedure required full participation in process.

Aguilar v. Socorro School (Texas Ct App 07/31/2009)
http://tinyurl.com/nmjuno

Aguilar sued the employer for violation of the Texas Whistle-Blower Act alleging wrongful discharge, constructive discharge, and retaliation. The trial court granted the employer's plea to the jurisdiction. The Texas Court of Appeals affirmed. Aguilar argued that in a whistleblower action, a claimant need only "initiate" a grievance; exhaustion was no longer required. By not complying with the arbitrator's requests for information or presenting information that would allow the arbitrator to reach a decision, Aguilar's action did not serve the purpose of the statute (Tex Gov't Code section 554.006) - to afford the employer "the opportunity to correct its errors by resolving disputes before being subjected to the expense and effort of litigation."

*** Arbitration - Collective Bargaining Agreements ***

NJ ? Arbitrator?s interpretation of "issue presented" is entitled to the same level of deference generally afforded arbitration awards.

Township of Wyckoff v. PBA Local 261 (New Jersey App Div 08/26/2009)
http://www.judiciary.state.nj.us/opinions/a2268-07a2527-07.pdf

The police officers? union appealed the trial court?s decision vacating a grievance arbitration award rendered in the union?s favor.  The court reversed.  The court observed that ?the trial court judge may have used the wrong standard in reviewing the arbitrator?s interpretation of the issue submitted to him.?  The court noted that ?the standard for reviewing an arbitrator?s interpretation of the collective bargaining agreement is a deferential one.?  The court also noted, however, that ?[n]o New Jersey precedent addresses whether the same deferential standard should apply to a court?s review of an arbitrator?s interpretation of the issue submitted.?  Relying upon federal cases interpreting the Federal Arbitration Act (FAA), the court held that the same deferential standard does apply.  Using that standard, the court reversed ? confirming the arbitration award.

7th - Employee failed to establish employer breached CBA in hybrid 301 action.

Nemsky v. ConocoPhillips (7th Cir 08/03/2009)
http://caselaw.lp.findlaw.com/data2/circs/7th/084028p.pdf