Thursday, December 29, 2011
Page 1
Court of Appeal Rules:
Arbitrator May Decide Employment Dispute After Worker Retires
By KENNETH OFGANG, Staff Writer
A public employee’s decision to retire while awaiting an arbitration hearing on the legality of his termination did not deprive the arbitrator of jurisdiction, the Third District Court of Appeal ruled yesterday.
The panel reversed a San Joaquin Superior Court judge’s ruling in favor of San Joaquin County. Judge Elizabeth Humphreys ruled that Robert Riedinger, a craft worker for the county’s Department of Facilities Management, could not invoke the arbitration clause of the labor agreement between the county and his union because the clause did not apply to “former employees.”
Riedinger was fired after he admitted stealing about $250 worth of recyclable material from his workplace, and took four days of unauthorized leave. The union requested arbitration under the disciplinary procedures in its MOU with the county.
Skelly Hearing
Under that process, an employee who receives a disciplinary notice may first obtain a pre-disciplinary hearing under Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194. If, after the Skelly hearing, the county orders that the worker be fired or otherwise disciplined, “the employee...may appeal the order [and] shall designate in writing whether the matter will be heard by the Civil Service Commission or whether the matter will be submitted to binding arbitration.”
Riedinger was fired following a Skelly hearing in February 2009. The union promptly requested arbitration on his behalf.
A month later, Riedinger retired, and, in April 2009, he began receiving benefits.
In May 2010, the county informed David Gaba, an experienced labor arbitrator, that he had been selected by the county counsel and the law firm representing the union as the arbitrator in Riedinger’s case, and that the hearing was set for Aug. 13 of last year in Stockton.
On July 26, however, the county’s lawyer informed the employee’s that the county would not participate in arbitration because Riedinger “is no longer employed with San Joaquin County.”
The arbitrator then e-mailed counsel saying he was unsure of his authority, and suggesting that one of the parties initiate an action to compel arbitration or for declaratory relief in order so the question could be resolved.
The union the brought its petition for arbitration, which Humphreys denied.
Public Policy
But Justice Andrea Hoch, writing yesterday for the Court of Appeal, said the trial judge erred. Riedinger, she said, did not lose his right to arbitration by retiring.
Citing the public policy in favor of arbitration and the plain language of the MOU, Hoch reasoned that if “former” employees were excluded, the county could avoid arbitration by firing the employee. Since the MOU clearly contemplates arbitration by employees appealing termination, the county’s interpretation is untenable.
The justice also noted that under the arbitration statute, an agreement to arbitrate is “irrevocable, save upon such grounds as exist for the revocation of any contract.” Riedinger’s decision to retire was not inconsistent with his election to arbitrate, and did not constitute grounds for the county to avoid arbitration, Hoch said.
Jurisdictional Analysis
The jurist acknowledged a split within the Court of Appeal on the question of whether a local civil service board or commission loses jurisdiction when an employee retires. But that issue is irrelevant to whether an employment dispute remains subject to arbitration, she said.
“A jurisdictional analysis makes sense in assessing whether a court or an adjudicatory commission retains power to decide a matter,” Hoch wrote. “By contrast, an arbitrator does not have ‘jurisdiction’ over a dispute. The arbitrator’s powers are contractual.... The parties in this case agreed to arbitrate Riedinger’s termination from employment, and his receipt of retirement benefits did not negate that agreement.”
The case is Service Employees International Union, Local 1021 v. San Joaquin County, C066861.
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