United States Court of Appeals
For the First Circuit
No. 01-1345
NEW ENGLAND HEALTH CARE EMPLOYEES UNION,
DISTRICT 1199, SEIU, AFL-CIO,
Plaintiff, Appellant,
v.
RHODE ISLAND LEGAL SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.
Mark B. Gursky, with whom Gursky Law Associates was on
brief, for appellant.
Robert P. Brooks, with whom Michael D. Chittick and Adler
Pollock & Sheehan P.C. were on brief, for appellee.
*Of the District of New Hampshire, sitting by designation.
December 10, 2001
COFFIN, Senior Circuit Judge. This case is the antithesis
of our typical decisions addressing the limits of an
arbitrator's discretion. While most parties challenge an
arbitrator's finding that they are required to arbitrate a
claim, appellant here contests, on public policy grounds, a
finding that recourse is available only in administrative and
judicial tribunals. Finding no contrary public policy, we
affirm the district court's grant of summary judgment.
I. Background
The parties have stipulated to the relevant facts.
Appellant New England Health Care Employees Union, District
1199, SEIU, AFL-CIO ("the Union") and appellee Rhode Island
Legal Services ("RILS") are parties to a collective bargaining
agreement ("the CBA"). Among the CBA's many provisions is
Article 20.3(f), which provides that "RILS shall not be required
to arbitrate any dispute which is pending before any
administrative or judicial agency."
On April 5, 1999, RILS terminated a Union member. That same
day, the Union filed a grievance on the employee's behalf,
pursuant to the CBA. Four months later, the employee filed
discrimination complaints with the Rhode Island Commission on
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Human Rights and the Equal Employment Opportunity Commission
alleging that RILS terminated her because she is physically
disabled. The Union's grievance proceeded to arbitration, and
the arbitrator found it was substantively non-arbitrable under
Article 20.3(f) because the employee's administrative complaints
were still pending. After appellant petitioned the district
court to vacate the arbitrator's award, the district court
upheld the award and granted summary judgment in appellee's
favor.
II. Standard of Review
We review the district court's legal determinations de novo,
applying the same well-established standard for evaluating an
arbitrator's decision:
[C]ourts will set aside the arbitrator's interpretation of
what [the CBA] means only in rare instances. Of course, an
arbitrator's award must draw its essence from the contract
and cannot simply reflect the arbitrator's own notions of
industrial justice. But as long as an honest arbitrator is
even arguably construing or applying the contract and
acting within the scope of his authority, the fact that a
court is convinced he committed serious error does not
suffice to overturn his decision.
Eastern Assoc. Coal Corp. v. United Mine Workers of America, 531
U.S. 57, 62 (2000) (internal quotations and citations omitted).
A challenge to an arbitrator's interpretation of an agreement
can be successful only if the losing party shows that the award
is "(1) unfounded in reason and fact; (2) based on reasoning so
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palpably faulty that no judge, or group of judges, ever could
conceivably have made such a ruling; or, (3) mistakenly based on
a crucial assumption that is concededly a non-fact." Teamsters
Local Union No. 42 v. Supervalu, 212 F.3d 59, 66 (1st Cir.
2000). With this exceedingly strict standard of review as a
backdrop, we turn to the substance of the argument.
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III. Discussion
A. Public Policy
Unable to conjure up any sustainable argument that the
arbitrator unfaithfully applied the language of the CBA,
appellant seeks vindication by arguing that the arbitrator's
award applying Article 20.3(f) violates the long-standing public
policy that favors arbitration to resolve contractual employment
disputes. Cf. Paperworkers v. Misco, Inc., 484 U.S. 29, 42
(1987) (allowing a court to refuse to enforce an arbitration
award if the underlying collective bargaining agreement is
contrary to an explicit, well-defined, and dominant public
policy). Paperworkers instructs us that the public policy must
be "ascertained by reference to the laws and legal precedents
and not from general considerations of supposed public
interests." 484 U.S. at 43 (internal quotations marks and
citations omitted). If enforcement of the arbitration award
would violate the overriding public policy, it should not be
enforced. Id.
Appellant emphasizes that the Supreme Court has celebrated
arbitration, noting that it provides the benefits of speed,
simplicity, and informality in otherwise acrimonious situations.
See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 628 (1985). Congress also has embraced the
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notion, enacting the Federal Arbitration Act to encourage
resolution of various claims by arbitration. See 9 U.S.C. § 1.
Thus, appellant argues, both statutory and case law firmly
establish the public policy in favor of resolving claims through
arbitration, and the arbitrator violated that policy by refusing
to allow the Union to arbitrate its grievance.
Appellant's argument is fatally flawed. Although
arbitration is considered desirable, it is "a matter of contract
and a party cannot be required to submit to arbitration any
dispute which [it] has not agreed so to submit." United
Steelworkers of America v. Warrior & Gulf Navigation Co., 363
U.S. 574, 582 (1960). Therefore, even assuming that public
policy favors arbitration, we may not supplant the parties'
arms-length agreement and require RILS to submit to arbitration
here.1 Finding no explicit, well-defined and dominant public
1 Appellant also contends that Article 20.3(f) is invalid
under Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), in
which the Court held that an employee's right to pursue a Title
VII claim was not waived by his prior submission of his claim to
arbitration. Appellant claims the obverse, that the contractual
right cannot be waived by invocation of the statutory right.
The flaw in this, of course, is that unlike the statutory right
which exists to pursue discrimination claims, the contract (and
Article 20.3(f) in particular) expressly indicate that the
parties never agreed to provide appellant with the contractual
right to arbitrate a claim pending before an administrative
agency.
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policy to require a party to arbitrate claims it has agreed not
to arbitrate, our inquiry comes to an end.2
B. Retaliation
Appellant also argues that the arbitrator's award amounts
to retaliation in violation of the anti-retaliation provisions
of the Americans with Disabilities Act, 42 U.S.C. § 12203(a),
and the Rhode Island Fair Employment Practices Act, R.I. Gen.
Laws § 28-5-7(5), because the filing of the discrimination claim
by the employee, a protected activity, triggered barring the
Union from arbitration.
This argument requires little discussion. We agree with the
district court that appellant's argument "presupposes that [the
2 Appellant also claims that Article 20.3(f) itself
violates public policy and cannot be enforced, contending that
it permits retaliatory actions by RILS to the detriment of
individual employees. Even if RILS's decision to invoke Article
20.3(f) may somehow be deemed retaliatory, the critical point is
that Article 20.3(f) cannot be triggered unless both the
employee and the Union seek redress in different fora. Whatever
public policy there is in preserving an untrammeled right to
arbitration, it is absolutely outweighed by (1) the Union's
express agreement to waive arbitration in these precise
circumstances; (2) the narrow set of circumstances in which this
situation can be presented (i.e., only when both the employee
and the union file separate claims); (3) RILS's logical
preference to minimize resources by not being forced to litigate
in separate fora; and (4) the possibility of otherwise
inconsistent outcomes in the arbitral and administrative realms.
We likewise reject appellant's challenge to Article 20.3(f)
as overly broad and vague. The record does not indicate that
appellant made these arguments before the district court, and
they are therefore waived on appeal. Corrada Betances v.
Sea-Land Serv., Inc., 248 F.3d 40, 44 (1st Cir. 2001).
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employee] had a right to arbitrate her grievance." Furthermore,
applying the familiar McDonnell Douglas burden shifting scheme,
appellant cannot make its prima facie case that the employee
suffered an adverse employment action in retaliation for
engaging in a protected activity because she was terminated
before she filed her discrimination claims. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); White v. New
Hampshire Dep't of Commerce, 221 F.3d 254, 264 (1st Cir. 2000).
Moreover, appellant claims that the arbitrator (as opposed to
the employer) retaliated against the employee. Assuming
arguendo that a third party can be liable for retaliation, it is
undisputed that the arbitrator relied only on the plain language
of the CBA to determine that the Union's grievance was
substantively non-arbitrable. The arbitrator's decision thus
was based on a legitimate non-discriminatory reason that
appellant has not even attempted to show was pretextual.
Accordingly, there is no merit to appellant's retaliation claim.
Affirmed.
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