CoreCivic of Tennessee v. International Union, Security, Police and Fire Professionals of America

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 CoreCivic of Tennessee, No. CV-21-00410-PHX-MTL 10 Petitioner, ORDER v. Local 825 International Union, Security, Police and Fire Professionals of America, et al., 14 Respondents.

16 In a previous order, the Court granted in part and denied in part Respondents’ Motion to Dismiss Petitioner’s Petition and Motion to Vacate Arbitrator’s Award. (Doc.

18 22.) The Court dismissed Petitioner’s claims that the arbitrator acted beyond the scope of the issues presented and that the arbitration award violated public policy, but agreed with Petitioner’s contentions that the award did not draw its essence from the Collective Bargaining Agreement (“CBA”). Following its Order, the Court directed the parties to provide a joint status report (Doc. 23) and held a status conference to discuss a remedy (Doc. 26). Thereafter, the parties submitted supplemental briefing on the appropriate remedy. (Doc. 26-29.) This Order addresses the issue and will require that the matter be remanded to a new arbitrator.1 Both parties have submitted legal memoranda and oral argument would not have aided the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b).

1 I.

2 The Court ordered the parties to file supplemental briefs analyzing whether the Court should remand the case to the same arbitrator, remand to a different arbitrator, or do nothing at all after formally vacating the arbitrator’s award. (Doc. 26.) Respondents request that the Court remand this case to the same arbitrator who issued the underlying award.

6 (Doc. 27 at 9.) Petitioners propose that the Court simply vacate the arbitrator’s award and do nothing further or, alternatively, vacate the award and remand the matter to a different arbitrator. (Doc. 28 at 1-2.) For the following reasons, the Court will vacate the award and remand to a new arbitrator.

10 II. 11 A.

12 In the event of a defect in the proceedings on the part of an arbitrator, a “district court should formulate an appropriate remedy to provide for the resolution of the parties’ differences by arbitration, including, if necessary, a procedure whereby a new arbitrator is selected.” Hart v. Overseas Nat. Airways Inc., 541 F.2d 386, 395 (3d Cir. 1976). Unlike judicial officers, “[a]rbitrators are not and never were intended to be amenable to the ‘remand’ of a case for ‘retrial.’” McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, Int’l Typographical Union, 686 F.2d 731, 733 (9th Cir. 1982) (quoting Washington-Baltimore Newspaper Guild, Loc. 35 v. Washington Post Co., 442 F.2d 1234, 1238 (D.C. Cir. 1971)). To this end, the Ninth Circuit has observed that: It is a fundamental common law principle that once an 22 arbitrator has made and published a final award [her] authority is exhausted and [she] is functus officio and can do nothing more in regard to the subject matter of the arbitration. The 24 policy which lies behind this is an unwillingness to permit one who is not a judicial officer and who acts informally and 25 sporadically, to re-examine a final decision which [she] has 26 already rendered, because of the potential evil of outside communication and unilateral influence which might affect a 27 new conclusion. The continuity of judicial office and the 28 tradition which surrounds judicial conduct is lacking in the isolated activity of an arbitrator, although even here the vast 1 increase in the arbitration of labor disputes has created the office of the specialized professional arbitrator.

3 McClatchy, 686 F.2d at 734 (quoting La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 4 569, 572 (3d Cir. 1967)).

5 In other words, policy discourages an arbitrator from redetermining an issue which she has already decided. See La Vale Plaza, 378 F.2d at 573; see also Kyocera Corp. v. Prudential-Bache Trade Sers., Inc., 299 F.3d 769, 780 (9th Cir. 2002), vacated on other grounds, 347 F.3d 978 (9th Cir. 2003) (stating remand is inappropriate for “reexamination of the merits, or a modification of the award”). In the eventuality that the “parties [are] unable to agree to a different arbitrator, [the] District Court is entitled to appoint a neutral [one].” Grand Rapids Die Casting Corp. v. Loc. Union No. 159., United Auto., Aerospace & Agr. Implement Workers of Am., UAW, 684 F.2d 413, 416-17 (6th Cir. 1982) (suggesting remand to a new arbitrator). 14 B. 15 The Court previously found that the arbitrator sidestepped the plain language of the CBA. (Doc. 22 at 14.) As explained in the Court’s previous Order, the arbitration decision’s analysis and conclusion failed to draw its essence from the CBA. (Id.) The arbitrator’s finding that CoreCivic lacked just cause to fire Ramirez simply ignored the CBA’s plain language that a violation of work rules constitutes just cause for punishment up to and including termination. (Id.) The Court further held that the arbitration decision’s lack of an express finding of unreasonableness in reducing Ramirez’s punishment deviated from the plain language of the CBA, which required that such a finding be made. (Id.) 23 Under some circumstances, the district court may remand to the same arbitrator who issued the award. This often occurs where the arbitrator’s decision requires clarification or completion. See La Vale Plaza, 378 F.2d at 573 (explaining that arbitrators are entitled to clarify ambiguities). Unlike those examples, the Court’s decision to vacate the arbitration award here relates to the arbitration award’s manifest failure to follow the plain language of the CBA. This represents a fundamental defect in the award, i.e., that the award fails to draw its essence from the CBA. As such, a remand to the original arbitrator would constitute a remand that requires reevaluating the merits of the award. As noted, reexamination of the merits is an improper rationale for remand to the same arbitrator. See Kyocera, 299 F.3d at 780.

5 The Court finds that the defects in the arbitration award represent “a defect in the proceeding . . . [allowing the Court to] formulate an appropriate remedy to provide for the resolution of the parties’ differences by arbitration, including, if necessary, a procedure whereby a new arbitrator is selected.” Hart, 541 F.2d at 393-94. While the Court should clarify that it does not doubt the arbitrator’s good faith, the award heavily relies on substantial deviation from the CBA’s language such that a remand risks impairing the appearance of impartiality. See Kennametal, Inc. v. United Steelworks of Am., ALF-CIO, 262 F. Supp. 2d 663, 671 (W.D. Va. 2003), aff’d sub nom. Kennametal, Inc. v. United Steelworkers of Am., AFL CIO CLC, 96 F. App’x 851 (4th Cir. 2004); see also Grand Rapids, 684 F.2d at 416-17. 15 C.

16 The parties are directed to follow the procedure set forth in the CBA to select a new arbitrator. That is, the parties shall request a list from the Federal Mediation and Conciliation Service of seven (7) arbitrators from Arizona and the immediate surrounding states. The parties shall select therefrom one (1) arbitrator by alternately deleting names from the list until a last name remains. Within thirty (30) days of this Order, the parties shall file a joint notice of the selection of a new arbitrator that was selected in accordance with the CBA’s procedure. In the event the parties are unable to select a new arbitrator according to this procedure, the parties shall file joint motion requesting that the Court appoint an arbitrator from a list a of three (3) proposed by CoreCivic and three (3) proposed by the Union. Should this latter motion be filed, the motion shall include sufficient information about the proposed arbitrators (i.e., biography, website, etc.) for the Court to make an informed decision.

1 Hl.

2 Accordingly, 3 IT IS ORDERED vacating the arbitrator’s opinion and award.

4 IT IS FURTHER ORDERED that the matter is remanded to a new arbitrator to be || selected by the parties according to the procedure set forth in the Collective Bargaining || Agreement.

7 IT IS FURTHER ORDERED that should the parties be unable to select a new || arbitrator through the procedure set forth in the Collective Bargaining Agreement, the 9|| parties shall file a joint motion, as described above, asking the Court to select a new || arbitrator.

11 IT IS FURTHER ORDERED directing the Clerk to enter final judgment and 12} consistent with this Order.

13 Dated this 21st day of September, 2022.

WMichak T. Shure 16 Michael T. Liburdi 17 United States District Judge _5-