New England Health Care Employees Union, District 1199 v. Rhode Island Legal Services

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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