Arbitrator, Not Court, Required To Determine Back Pay Amount

The City of Snoqualmie, Washington is party to a collective bargaining agreement with the Snoqualmie Police Association. The City of Snoqualmie discharged Sergeant Eric Kasel for alleged misconduct on April 17, 2007. The Association challenged the discharge in accordance with the collective bargaining agreement between the parties, and the case went to binding arbitration before a single arbitrator.

The Arbitrator made an award based on his decision that Sergeant Kasel committed misconduct, but that the City did not have just cause to terminate him for it. He concluded that the appropriate discipline was a 60-day suspension, without pay, and that Sergeant Kasel “shall be demoted” from sergeant to police officer, effective upon his “return to duty.” He also ordered the City “to make Sergeant Kasel whole for all wages and benefits lost” minus the 60-day suspension.

Following the Arbitrator’s decision, the City paid Kasel back wages and benefits at the lower police officer’s wage rate, less the 60-day suspension, based on its view that the lower wage rate should apply. This calculation assumed that the 60-day suspension would have commenced on the April 17, 2007 termination date, followed by a return to duty at some time thereafter.

The Association disagreed, and filed a lawsuit against the City. The Association claimed that back pay should have been calculated based on a sergeant’s rate of pay. This argument was based on its view that Sergeant Kasel continued to hold the rank of sergeant after his termination and “was entitled” to be paid at that rate until his “return to duty” following the arbitration proceeding.

The Washington Court of Appeals concluded that the Arbitrator, and not a court, should decide the back pay amount. The Court held that “where an arbitration award is ambiguous on its face, courts generally remand to the arbitrator for clarification. “There is more than one reasonable way to read this award. The City relies primarily on the past tense ‘was’ to justify its use of a police officer’s wage rate to ‘make him whole for wages and benefits.’ This is a reasonable reading that is designed to make the grievant whole for all wages and benefits lost between the time of termination, less the 60-day suspension.

“On the other hand, the Association relies on ‘shall be demoted,’ the future tense of the second emphasized passage above, to justify its reading that no demotion in pay occurs until the grievant’s ‘return to duty,’ whenever that occurs. This, too, is a reasonable reading, given the plain language of award.

“Because there is more than one reasonable way to read this award to accomplish that objective and the award does not specify what wage rate governs to accomplish this purpose, the award is ambiguous. Since the award is ambiguous, the trial court should have remanded the award to the arbitrator for clarification.

Snoqualmie Police Ass’n v. City of Snoqualmie, 2012 WL 164063 (Wash. App. Div. 1 2012).