American Medical Response v. National Emergency Medical Services Ass'n

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 19 2013

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

AMERICAN MEDICAL RESPONSE OF No. 11-56505
SOUTHERN CALIFORNIA,
D.C. No. 2:10-cv-09672-JHN-
Plaintiff - Appellant, MAN

v.
MEMORANDUM*
NATIONAL EMERGENCY MEDICAL
SERVICES ASSOCIATION,

Defendant - Appellee.

Appeal from the United States District Court
for the Central District of California
Jacqueline H. NGUYEN, District Judge, Presiding

Argued and Submitted June 5, 2013
Pasadena, California

Before: TROTT and W. FLETCHER, Circuit Judges, and STEIN, District Judge.**

American Medical Response of Southern California (AMR) appeals the

district court’s confirmation of an arbitration award in favor of the National

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
Emergency Medical Services Association (NEMSA), a union representing a

bargaining unit composed of AMR’s former North Hollywood employees. We

have jurisdiction pursuant to 28 U.S.C. § 1291.

An arbitrator’s decision is entitled to a “nearly unparalleled degree of

deference.” Stead Motors of Walnut Creek v. Auto. Machinists Lodge No. 1173,

886 F.2d 1200, 1205 (9th Cir. 1989) (en banc). “If an ‘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.’” S. Cal. Gas Co. v. Utility Workers Union of Am., Local

132, 265 F.3d 787, 792 (9th Cir. 2001) (emphasis added) (quoting E. Assoc. Coal

Corp. v. United Mine Workers of Am., 531 U.S. 57, 62 (2000)). With this

principle in mind, we affirm.

1. The arbitrator’s decision was based on “a plausible interpretation” of

the collective bargaining agreement and therefore “draws its essence from the

contract.” See Sheet Metal Workers’ Int’l Ass’n Local Union No. 359 v. Madison

Indus., Inc., 84 F.3d 1186, 1190 (9th Cir. 1996) (internal quotation marks omitted).

The arbitrator permissibly went beyond the literal terms of the contract and

determined that Section 4.03 of the contract did not allow AMR complete

discretion in the scheduling of special events shifts. See id. (“[T]he arbitrator is

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not bound by precedent or by the record before him; rather, ‘the industrial common

law -- the practices of the industry and the shop -- is equally a part of the collective

bargaining agreement although not expressed in it.’”) (quoting United

Steelworkers of Am. v. Warrior & Gulf Navig. Co., 363 U.S. 574, 581-82 (1960)).

Testimony in the record supports the arbitrator’s conclusion that the terms of the

collective bargaining agreement did not include “an undisclosed and non-

negotiated erosion of special event shift assignments historically performed by

NEMSA Unit members, in contrast to the fully negotiated and substantially

discussed loss of seniority as the basis for special event assignments.”

2. The arbitrator acted within the scope of his authority by framing the

issues for decision after it became clear that the parties could not agree on a

formulation. An arbitrator’s definition of the scope of the issues submitted to him

is entitled to “the same deference accorded his interpretation of the collective

bargaining agreement.” Pack Concrete, Inc. v. Cunningham, 866 F.2d 283, 285

(9th Cir. 1989).

Contrary to AMR’s contention at oral argument, Section 18.02 of the

contract does not withdraw all authority from the arbitrator simply because AMR

and NEMSA did not agree on the scope of the issues. That Section states that the

arbitrator’s authority is limited to the “resolution of the particular issue(s)

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submitted to the arbitrator by the Union and the Employer and the authority

conferred by this Agreement.” NEMSA and AMR each submitted their own

interpretation of the issues before the arbitrator, and the arbitrator plausibly

determined that NEMSA’s grievance was properly before him.

AMR claims that it agreed to arbitrate only the unfair labor practice charge

instituted by the National Labor Relations Board (NLRB), not NEMSA’s

grievance that AMR violated the collective bargaining agreement. But the record

contains sufficient evidence that AMR did agree to arbitrate the substance of the

grievance -- that it was handing over bargaining unit work to non-unit employees.

When asked by an NLRB representative if AMR would “waive any time limits for

filing and processing a grievance containing the allegations in [the] amended

charge,” AMR agreed. The NLRB’s deferral letter stated that AMR was “willing

to process a grievance . . . [and] to waive any time limitations in order to ensure

that the arbitrator addresses the merits of the dispute.” (emphasis added). The

letter described the amended charge as “unlawfully subcontract[ing] out bargaining

unit work to non-bargaining unit employees,” which is very similar to how the

Union framed the issue in its grievance. AMR did not dispute that the NLRB’s

deferral letter was accurate until the arbitration proceeding itself. Having taken

advantage of the NLRB’s decision to defer the unfair labor practice charge against

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AMR pending the arbitration of NEMSA’s grievance, AMR cannot now complain

that it did not agree to that arbitration.

3. Finally, NEMSA has the right to enforce the arbitration award. The

record does not support AMR’s contention at oral argument that a new union is

now representing the North Hollywood employees. The NLRB proceeding

currently underway has blocked the pending decertification petitions. Thus, it

appears that NEMSA is still certified as the exclusive bargaining representative of

the North Hollywood employees. Cf. Sheet Metal Workers’ Int’l Ass’n, Local 206

v. W. Coast Sheet Metal Co., 954 F.2d 1506, 1509 (9th Cir. 1992) (stating that

provisions of a contract between an employer and a union “have no legal effect

when the Union is no longer the certified representative” of the employees).

AFFIRMED.

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