American Medical Response v. National Emergency Medical Services Ass'n , 529 F. App'x 814 ( 2013 )

NOT FOR PUBLICATION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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