Time To Object To Arbitration Is At Arbitration Hearing

The Metropolitan Campus Police Officer’s Union is the exclusive representative of officers and sergeants employed by Howard University in Washington D.C. The University and the Union signed a collective bargaining agreement which contained an Appendix C, entitled “Wage Compensation Package,” and contained a list of planned salary increases. The contract contained an arbitration clause that any allegations of violations, misapplication, or misinterpretation of the contract would be subject to arbitration.

In May 2004, the Union filed a grievance claiming the University had not increased salaries in accordance with Appendix C. The University, which did not object to resolving the grievance through arbitration, argued before the Arbitrator that the inclusion of Appendix C in the contract was a mutual mistake.

The Arbitrator sided with the Union, concluding that there was no “clear and concrete evidence” to support the University’s contention that Appendix C was included in the contract by mutual mistake. She therefore held that the University was required to abide by the wage terms in Appendix C.

The University’s challenge to the Arbitrator’s opinion wound up before the federal Court of Appeals for the District of Columbia. The Court turned away the University’s challenge.

The University first argued that the Arbitrator had made a “mistake of law” in excluding the testimony of a witness. The Court found that “mistakes of law” are not a sufficient basis to overturn an arbitrator’s opinion. Quoting from a United States Supreme Court opinion, the Court observed that “while courts may review the substance of an arbitration award, only the narrowest circumstances will justify setting the award aside. The Arbitrator cannot, for instance, ignore the contract and dispense his own brand of industrial justice. But if an arbitrator was arguably construing or applying the contract, a court must defer to the arbitrator’s judgment. That the arbitrator may have made a mistake of law does not affect the standard of review: The parties have agreed to be bound by the arbitrator’s interpretation without regard to whether a judge would reach the same result.”

In any case, the Court found that the University had waived the right to challenge the Arbitrator’s award. The Court held that “absent excusable ignorance of a predicate fact, a party that does not object to the arbitrator’s jurisdiction during the arbitration may not do so later in court. Arbitration is a matter of consent; if a party submits to arbitration without objecting to the arbitrator’s jurisdiction, then it may fairly be said to have consented to the arbitration, and the other party, having gone forward with the proceeding, may fairly be said to have relied upon that consent. Also, requiring a party to object to the arbitrator’s jurisdiction during the arbitration conserves resources. If a party objects to the arbitrator’s jurisdiction and the arbitrator sustains the objection, then the parties can go directly to court and, if the court affirms, avoid an unnecessary arbitration proceeding.”

Howard University v. Metropolitan Campus Police Officer’s Union, 2008 WL 160932 (D.C.App. 2008).

This article appears in the March 2008 issue