Arbitrator, Not Courts, Should Decide Whether MOU Settled Grievance

Dale England was a deputy sheriff in Chelan County, Washington and a member of the Chelan County Deputy Sheriff’s Association. England made a prank call to what he thought was a friend. Unfortunately for him, he misdialed his friend’s number and left a threatening message on a stranger’s answering machine. The recipient called police, who reported the call to the Department. Sheriff Mike Harum ultimately fired England.

The Association filed a grievance and demanded arbitration pursuant to its collective bargaining agreement with the County. The Association and the County agreed to mediation, and that mediation resulted in a signed, handwritten memorandum of understanding. In the MOU, England agreed to waive all claims against the County in exchange for a statement that the reason for his discharge was not sustained, for reinstatement of his employment with pay for six months, and for a promise to end any further investigations of him.

Days later, the Sheriff was interviewed on a local radio show, and stated that while there was a tentative settlement that had to be ratified, he had a duty “to not employ deputies…that exhibit this type of behavior, so what this settlement does is it basically disallows Dale England from being an employee of the Chelan County Sheriff’s Office.”

The Association refused to sign a final settlement agreement, and the County sued to enforce the terms of the MOU. The Association responded by arguing that the MOU was not a binding agreement and demanding arbitration of England’s original grievance.

The Washington Court of Appeals took neither approach, and instead sent to arbitration the issue of whether the MOU was a binding agreement with which the Association was required to comply. The Court reasoned: “We presume, strongly presume, that a controversy between parties is covered by their arbitration agreement. That presumption is rebutted only by evidence that shows expressly or by clear implication that the controversy is not covered.

“The arbitration provisions of this contract apply to ‘any grievance.’ And a ‘grievance’ is ‘a dispute involving the interpretation, application or alleged violation of any provision of this Agreement.’ All agree that the Association’s objection to England’s discharge is a ‘grievance’ subject to arbitration. The County maintains, nonetheless, that the question of whether the parties settled England’s grievance is not a ‘grievance.’

“We find no provision in the CBA that excludes this settlement issue from arbitration. So the presumption that would seem to attach is that the dispute over the effect of this memorandum of understanding is subject to arbitration. Ultimately the County’s action seeks to enforce a settlement agreement that the Association says does not exist. Thus, the issue of whether a settlement agreement exists involves the application and the alleged violation of a provision of the contract.”

Chelan County v. Chelan County Deputy Sheriff’s Ass’n, 252 P.3d 421 (Wash. App. 2011).

This article appears in the September 2011 issue