United Government Security Officers of America, International Union v. CDA Incorporated
OPINION. Signed by Honorable Judge Myron H. Thompson on 11/1/2011. (jg, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
UNITED GOVERNMENT SECURITY
OFFICERS OF AMERICA,
INTERNATIONAL UNION and
UNITED GOVERNMENT SECURITY
OFFICERS OF AMERICA,
CDA INCORPORATED aka
CIVIL ACTION NO.
Plaintiffs United Government Security Officers of
Security Officers of America, Local 401 (together, “the
arbitration award under the Labor-Management Relations
Arbitration Act (“FAA”), 9 U.S.C. § 11(a).
This case is
currently before the court for final disposition of the
For the reasons that follow, the
court will vacate that portion of the arbitration award
requiring the union to pay half of the back pay awarded
to its member, Lori Daniels.
CDA provides security services to businesses and
During the period of time relevant
to this case, it supplied security guards to the United
States Army base at Fort Rucker, Alabama.
was one of those guards.
On October 23, 2008, a visitor
to the base reported seeing Daniels smoking a cigarette
while on duty.
As a result of that complaint, Daniels
was summoned to her supervisor’s office and fired.
The union, believing that Daniels may have been
falsely accused and that the allegations, even if true,
arbitration on Daniels’s behalf.
The union went on to
serve as Daniels’s representative in arbitration.
determined that CDA should not have terminated Daniels
arbitrator also found Daniels “somewhat culpable,” he cut
The parties do not contest that result.
The arbitrator went on to calculate his own fee and
costs, which the collective-bargaining agreement required
the parties to split.
The parties do not challenge
obligation to pay.
Only the final sentence of the arbitration award is
The relevant portion of the award reads:
$ 13,027.20 in back pay ....
In addition, expenses are
Therefore, each party is requested to pay
The central issue before this court is
whether that portion of the award requiring the union to
split the back-pay award with DCA should be vacated or
As an initial matter, CDA argues that the union’s
claim is untimely.
It submits that this court should
apply Alabama’s 30-day limitations period for parties to
appeal arbitration awards, see Ala. R. Civ. P. 71B, and
find that the union’s complaint, filed a little less than
three months after the arbitrator’s October 8, 2009,
decision, is time barred.
This argument is without
1. Because CDA does not argue that the collectivebargaining agreement precludes any judicial review of the
arbitral award, that potential argument is deemed waived.
See Johnson v. Andalusia Police Dep’t, 633 F. Supp. 2d
1289, 1299 (M.D. Ala. 2009) (Thompson, J.) (deeming claim
not mentioned in party’s brief to be waived); cf. Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004) (“[T]he law is by now well settled in this
Circuit that a legal claim or argument that has not been
briefed before the court is deemed abandoned and its
merits will not be addressed.”).
As far back as 1987, the Eleventh Circuit Court of
Appeals made clear that “the time period during which an
arbitration award is vulnerable to attack is a ...
crucial matter of federal labor policy” and that “federal
labor policy ... requires a uniform federal limitations
for suits to vacate arbitration awards under collective
Am. Postal Workers Union, AFL-
CIO v. U.S. Postal Serv., 823 F.2d 466, 475 (11th Cir.
While this alone would be enough to justify
borrowing a limitations period from federal (rather than
nearly the precise question at issue in this case and
concluded that the FAA’s three-month limitations period
“applies to a motion to vacate an arbitration award
arising out of collective bargaining agreements.” United
Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied
Indus. & Serv. Workers Int’l Union, Local 329 v. Wise
Alloys, LLC, 642 F.3d 1344, 1354 (11th Cir. 2011).
result, the FAA’s three-month limitations period, rather
than Alabama’s 30-day limitations period, applies to the
union’s challenge to the arbitration award.
union’s] filing is timely,” Def.’s Br. 8 (Doc. No. 22);
moreover, an independent review of the record shows that
the complaint in this case was filed within the FAA’s
three-month limitations period.
The union’s claim is
The merits of the union’s timely claim are somewhat
bargaining] agreement is very limited.”2
2. Neither the Eleventh Circuit nor the Supreme
Court has determined whether the FAA applies to actions
for the enforcement, modification, or vacation of an
arbitral award made pursuant to a collective-bargaining
agreement. See Aldred v. Avis Rent-A-Car, 247 F. App’x
167, 170 (11th Cir. 2007) (per curiam); Brisentine v.
Stone & Webster Eng’g Corp., 117 F.3d 519, 525 (11th Cir.
1997). Because both the FAA and the LMRA compel the same
Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509
Courts must refrain from “weighing the merits of
the grievance[:] ... It is only when the arbitrator
agreement and effectively ‘dispense[s] his own brand of
Id. (quoting United Steelworkers of Am.
v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960)).
The inquiry must therefore focus on “whether an award is
irrational, whether it fails to draw its essence from the
collective bargaining agreement or whether it exceeds the
scope of the arbitrator’s authority.”
Inc. v. Teamsters Local Union 528, 87 F.3d 1261, 1263
(11th Cir. 1996).
Even in the “‘very rare’” occasions where error
requires that the arbitrator’s award be overturned, “‘the
court must not foreclose further proceedings by settling
result and because this court has subject-matter
jurisdiction under either statute, there is no need to
attempt to resolve that issue here.
Garvey, 532 U.S. at 510 (quoting
United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc.,
484 U.S. 29, 40 n.10 (1987)).
Doing so “would improperly
substitute a judicial determination for the arbitrator’s
decision that the parties bargained for.”
U.S. at 40 n.10.
That said, when an error warrants
setting aside an award, a court may “vacate the award,
thus leaving open the possibility of further proceedings
if they are permitted under the terms of the agreement.”
Id. (internal quotation marks omitted).
The parties do not challenge the arbitrator’s factual
It is only the award’s final sentence,
requiring the union and CDA to split Daniels’s back-pay
award, that is in dispute.
That the arbitrator would conclude that CDA wronged
representative in the arbitration to bear half the cost
of that award is certainly anomalous: no party has been
able to identify any other arbitration award reaching a
While anomalous does not always mean
erroneous, the final sentence of this arbitral award so
conflicts with both the collective-bargaining agreement
and the facts put before the arbitrator that it must be
First of all, nothing in the collective-bargaining
agreement makes the union liable for damages caused by
agreement did intend to make the union liable, it did so
provision of the agreement specifically requires that the
“arbitrator’s fees and expenses, including cost of any
Employer and the Union.”
Arbitration Record 82 (Doc. No.
There are no similar provisions authorizing the
arbitrator to hold the union liable for damages caused by
agreement’s provision governing arbitration proceedings
provides for the splitting of only the arbitrator’s fees
It also precludes the arbitrator from
adding to or modifying the terms of that provision.
authority under the collective-bargaining agreement to
order the union to pay half of Daniels’s back-pay award.
This is consistent with the union’s role as the
employee’s representative in the arbitration.
make no more sense to hold that the union, in that role,
is obligated to pay an award in favor of its client than
it would to hold that CDA’s lawyers are obligated to pay
an award issued in favor of their client.
particularly when the representative favorably resolves
the dispute (as the union did here).
It would simply
make no sense to penalize an employee’s representative
for successfully bringing an arbitration proceeding on
the employee’s behalf.
But that is precisely what the
arbitrator appears to have done in this case.
Second, nothing in the arbitration award’s factualfindings or discussion section mentions the possibility
of, let alone justifies, holding the union responsible
for any portion of the back-pay award.
decision, the arbitrator omitted any indication that the
union had committed a wrong that might justify having it
pay half of Daniels’s damages or that there was some law
or provision in the collective-bargaining agreement that
would justify such?.
Indeed, it was Daniels who the
representative, and the arbitrator reduced her award
based on that finding alone.
Arbitration Record 6 (Doc.
It is unsurprising that, in discussing the facts of
the case and the evidence before him, the arbitrator did
not even mention the possibility of wrongdoing by the
The union was not accused of any misconduct; it
had nothing to do with the events underlying Daniels’s
justification for holding it liable for any portion of
its member’s back pay.
To assign the employer blame and
then impose upon the union an obligation to pay half of
the ultimate award makes no more sense than granting
judgment for the plaintiff in a tort suit and then
defendant--to compensate his client for her damages.
That latter result would be unheard of, and there is no
rational basis in the record to justify it in this case.
In sum, the final sentence of the arbitrator’s award
is wholly inconsistent with the collective-bargaining
agreement, the allegations Daniels brought against CDA,
Nevertheless, a careful review of the record provides
some insight into the likely cause of this irrational
award: the award’s final sentence does not reflect the
arbitrator’s intention, but was instead the result of a
mistake made when the arbitrator’s notes were converted
into the final award.3
The arbitrator issued the award in this case at the
very tail end of his career and only few months before
deteriorated and he was forced to delegate the task of
3. The draft opinion from which the final award was
transcribed is not part of the record.
parties have provided approximately 16 pages of the
Nothing in those notes reveals a
justification for holding the union responsible for a
portion of the back-pay award. At one point, however,
there is a stray hand-written calculation, among many
stray hand-written calculations, in which the arbitrator
divided the award amount in half.
fleeting and unreliable notation does not reveal what was
contained in the arbitrator’s actual draft opinion.
Since the union had nothing to do with Daniels’s
termination and it was that termination that required the
back-pay award, there is no reason to think that the
arbitrator ultimately concluded that the union should be
held liable for the salary she would have received had
she not been fired.
typing out the final award to his niece.
There is no
doubt that the arbitrator intended to hold the union
liable for only one half of his fee and expenses, as
provided by the collective-bargaining agreement.
sentence ordering the parties to split the back-pay award
as well was one of several clerical errors resulting from
explanation, and common sense reveals the truth behind
4. Other errors include (1) an overstatement of the
amount of back pay sought by the union, (2) a significant
understatement of the arbitrator’s actual expenses, and
(3) the arbitrator’s direction to the parties that they
should pay both his arbitration expenses and the award
amount itself directly to him.
While neither party
suggests that this court should correct those mistakes,
their existence is wholly consistent with the union’s
assertion that the individual who typed out the award
lacked the attention to detail necessary for such a task.
5. The record includes an uncontradicted affidavit
from a longtime colleague and friend of the arbitrator
stating, in part:
“I have reviewed [the arbitrator’s]
file. ... By the time [the arbitrator]
had finalized the last portion of his
Award in October 2009, his health had
seriously deteriorated. After further
hospitalization, he passed away the
following month. Looking back, it had
taken a heroic effort for him to travel
to Montgomery and conduct the Hearing.
... A review of the Award shows [that
the arbitrator] had written the October
2009 Opinion in a clear and logical
manner. His findings had been made in
accordance with accepted Arbitration
standards and are supported by the
evidence he reviewed. ... The only
apparent errors dealt with billing,
involved computation of his fees and
expenses and a mistake in allocating
payment of the back pay between the
Company and the Union. ... Under the
Labor Agreement and the circumstances
here, the Union did not have any back
pay obligation; that responsibility was
billing instructions were confused and,
in his condition, he had not caught that
error. At that time in his life, he had
closed his office and it was a young
relative who typed what would become his
final Award. ... Obviously there would
be no basis for the Union, as the
prevailing party, to pay any part of the
Back Pay Award.”
For its part, CDA argues that the arbitrator made the
union liable for a portion of Daniels’s back pay because
of the defense it put forth on Daniels’s behalf.
the arbitration, Daniels testified that she had not been
CDA asserts that a “reasonable supposition” is
Daniels[‘s] back pay, also found culpability in the union
for its participation in her perjury.”
Def.’s Br. 4
(Doc. No. 22).
There is a reason that CDA fails to support that
argument with evidence from the otherwise comprehensive
reasoning laid out in the arbitration award: absolutely
Given the arbitrator’s painstaking efforts
to identify the exhibits before him, explain the facts
presented, and detail the various doctrines he employed
in reaching his conclusion, the absence of any reference
to wrongdoing on the union’s part wholly undermines CDA’s
* * *
arbitrator’s findings of fact or application of those
facts to the law.
Unfortunately, the final sentence of
the award failed to carry out the decision that the
arbitrator had so carefully explained.
No doubt this
error would have been caught, and this irrational result
avoided, but for the arbitrator’s ill health and untimely
While this court cannot substitute its own view of
the merits for those of the arbitrator, it can vacate
that portion of an award which the arbitrator himself
clearly did not intend, which the collective bargaining
otherwise render the award irrational.
The court will
decision requiring the union to pay half of the back-pay
The union is still obligated to pay one half of
the arbitrator’s expenses, or $ 749.58, directly to the
Daniels may seek the rest of the
back pay to which she is entitled through the applicable
grievance procedures, if available.
An appropriate judgment will be entered.
DONE, this the 1st day of November, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
6. The actual award misstates the total expenses
incurred by the arbitrator as $ 1,499.16, which does not
include either the arbitrator’s fee or the secretarial
services that he provided.
His actual expenses were
$ 3,704.76, or $ 1,852.38 per side. The parties have not
asked the court to correct that error, nor is it clear
that the court even has the authority to do so.
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