[Dis-res] WLO-DR (Apr. 7-11, 2003)

[James A Papachristopoulos]

Willamette Law Online - Dispute Resolution
Willamette University, College of Law
Center for Dispute Resolution
April 7 - 11, 2003

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THIS WEEK:

1.  Arbitration: An arbitrator may use sources outside the agreement to
    interpret that agreement if both parties were aware of the sources

2.  Mediation: The mediated agreement did not indicate the amount each
    defendant was responsible, and the court held all the defendants
    jointly liable for payment to plaintiff.

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CASE SUMMARIES:

Arbitration: An arbitrator may use sources outside the agreement to
interpret that agreement if both parties were aware of the sources Local
391, Council 4, ASCME, AFL-CIO v. Dept. of Corrections et al.; 2003 WL
1564192 (Conn. App. 2003)

Local 391, Council 4, American Federation of State County and Municipal
Employees, AFL-CIO, (Local 391) and department of corrections agreed on
several consecutive collective bargaining agreements, dealing with
employment conditions, since 1979. One condition of employment included
Article 43, which required Local 391 to supply a doctor’s certification of
illness when an employee was sick for more than five days. In June of
1994, the collective bargaining agreement expired. The parties agreed to
extend the previous agreement until they brokered a new agreement. The
parties agreed to use final offer arbitration to settle the unresolved
issues. The arbitrator issued a binding award in April of 1997 for the
period of 1994-1999. The state Senate rejected the award. Following the
state’s action, rumors in the media circulated about the possibility of a
strike, sick out, or other conventional methods of work action by the
employees. Based on the rumors the department of corrections instituted a
new illness policy requiring a doctor’s certification for absences by
employees due to sickness, regardless of the amount of days. The
department of corrections subsequently disciplined employees in accordance
with the new policy. The parties jointly submitted to arbitration to
resolve the dispute, which was, “Did the state violate Article 43 of the
collective bargaining agreement?” The arbitrator found the states actions
consistent with the terms of the collective bargaining agreement. The
arbitrator sited other policies that provided the state with flexibility
when confronted with a reasonable cause for requiring a medical
certificate. This term came from the State’s Regulations of State’s
Agencies. Local 391 appealed the award to the district court, and sought
to have the decision vacated. The district court denied the motion. On
appeal, the Connecticut Court of Appeals affirmed the lower court’s
decision. The Court held that even if the arbitrator erred in its
decision, it must be upheld because he or she interpreted the contract, in
accordance with the collective bargaining agreement. The Court held that
the arbitrator did not err by citing the state regulations, because
documents outside of the agreement may be used to interpret the agreement,
so long as both parties are aware of the existing documents. The Court
affirmed the lower court’s decision.  (DH)

Available online at:
http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP76/76ap264.pdf

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Mediation: The mediated agreement did not indicate the amount each
defendant was responsible, and the court held all the defendants jointly
liable for payment to plaintiff. Jackson v. Rubicon, Inc. 2003 WL 1733724
(La. App. 3 Cir April 2, 2003)

Debra and James Jackson filed suit against Rubicon Inc. and three other
defendants for damages arising out of a chemical spill. The parties
settled the matter in mediation.  The defendants agreed to pay $10,000 to
the Jacksons. The trial court issued an order to enforce the settlement
agreement against the defendants jointly, and made the entire obligation
enforceable against all or any one of the defendants.  Subsequently, one
of the defendants declared bankruptcy, and left only three defendants to
pay all $10,000.  Rubicon appeal, and claimed the trial court erred when
it made the defendants jointly liable for the payment.  The Court of
Appeals held that the defendants were jointly liable. As the agreement did
not mention pro-rata portions each defendant was responsible for, the
court
had to look to the intention of the defendants.  In finding the intent was
to be joint liability, the court relied on the fact that all the
defendants acted in concert when they agreed to pay $10,000 to the
Jacksons, and they agreed to pay a lump-sum regardless of the nature of
each defendant’s individual contribution.  (KA)

Full opinion available at:
www.la3circuit.org/opinions%5C0402%5C02-1156opi.pdf

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Editor-in-Chief:  Demetri Papachristopoulos
Writers:          David Hannon, Michael Greene, Kyle Abraham
Faculty Advisor:  Richard Birke