Opinion
No. CV F 05-1333 AWI DLB, Documents #12, #13, #14.
June 9, 2006
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ORDER DENYING UNION'S PETITION TO VACATE THE ARBITRATION AWARD
This is a civil action to vacate an arbitration award filed by Healthcare Workers' Union Local 250, SEUI, AFL-CIO, CLC ("Union") arising out of Defendant American Medical Response ("AMR")'s termination of Union members Danielle Molloy and Larry Segovia. The matter was referred to a United States Magistrate Judge for scheduling and pretrial matters. After receiving briefing from the parties, on March 31, 2006, the Magistrate Judge issued Findings and Recommendations that recommended the court deny Union's motion to vacate the arbitration award. The Findings and Recommendations were served on the parties and gave notice that the parties could file objections within thirty days. On April 26, 2006, Union filed objections. On May 9, 2006, AMR filed a response to Union's objections.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)C) this court has conducted a de novo review of this case. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Because the facts and legal arguments are well known to the parties and addressed by the Magistrate Judge, they will not be restated here. Having carefully reviewed the entire file, the court finds the Findings and Recommendations to be supported by the record and by proper analysis.
As explained more fully by the Magistrate Judge, the Federal Arbitration Act ("FAA") creates "a body of federal substantive law of arbitrability," enforceable in both state and federal courts. Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24, (1983); Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282, 285 (1988). Federal judicial review of arbitration awards is extremely limited. Todd Shipyards Corp. v. Cunard Line, Ltd., 943 F.2d 1056, 1060 (9th Cir. 1991). At least one Circuit Court has described judicial review of an arbitration award as "among the narrowest known to the law." Litvak Packing Co. v. United Food Commercial Workers, Local Union No. 7, 886 F.2d 275, 276 (10th Cir. 1989).
Title 9 U.S.C. § 10(a)(3) allows the district court to vacate an arbitrator's decision where the arbitrator was guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown; or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. "[A] court's review of the arbitrator's decision to postpone or not postpone a hearing is quite limited." ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1463 (10th Cir. 1995). An arbitrator's refusal to grant a postponement is not grounds to vacate an arbitration award if there is any reasonable basis for the arbitrator's considered decision not to grant a postponement. Scott v. Prudential Sec. Inc., 141 F.3d 1007, 1016 (11th Cir. 1998);DVC-JPW Investors v. Gershman, 5 F.3d 1172, 1174 (8th Cir. 1993); Fairchild Co. Inc. v. Richmond, F. P .R. Co., 516 F.Supp. 1305, 1314-15 (D.D.C. 1981).
Union's primary objection to the Findings and Recommendations concerns the Magistrate Judge's recommendation that the court not vacate the arbitration award because the Arbitrator denied a continuance. The day before the arbitration, on May 25, 2005, Union's counsel asked for a continuance during a telephonic conference because one of Union's witnesses had become unavailable. The Arbitrator denied the continuance because AMR objected, it was made for unidentified medical reasons, and the arbitration hearing date had been set for two months. Later that day, Union's counsel informed the Arbitrator over the phone that the witness, John Van Eyck, had become unavailable due to a hernia operation on May 10, 2005. At 3:55 p.m., the Arbitrator received a fax from Union' counsel, informing her that (1) Mr. Van Eyck was a critical witness and must be present to testify for Union, (2) one of the grievants was also not available, and (3) Union would not appear in the absence of its witness. The Arbitrator informed Union's counsel by letter, faxed that day after 5:00 p.m., that his request for a continuance was denied. In this letter, the Arbitrator stated Mr. Van Eyck would be allowed to testify later if evidence was provided that he had good cause for not being available. No party representing Union appeared at the arbitration, and the arbitration took place without Union.
Under this fact pattern, the court agrees with the Magistrate Judge that the Arbitrator had a reasonable basis to not grant Union's request for a postponement. The Arbitrator was given little information about Mr. Van Eyck's medical condition, Mr. Van Eyck's proposed testimony, and why counsel had waited until the eve of the arbitration to inform AMR and the Arbitrator of the need for a postponement. In other controversies, courts have refused to vacate an arbitration award over postponement denials involving a party's "flimsy" claim of unavailability due to overseas travel, see ARW Exploration Corp. v. Aguirre, 45 F.3d 1455 (10th Cir. 1995), or a purported flare-up in a party's long-term, stress-related illness the evening before a scheduled arbitration hearing, see Hilliard v. J.C. Bradford Co., 229 Ga. App. 336 (1997). Here, Union's counsel gave the Arbitrator little information on which to make an informed decision and the information that was given did not require a postponement. Union's counsel informed the Arbitrator that they would not appear before she even ruled on the second request for a postponement. If Union believed that it could not go forward without Mr. Van Eyck, the appropriate procedure would have been to appear at the hearing and renew the request for a continuance, with proper argument and supporting evidence. Had the Arbitrator conducted the hearing anyway, Union could have asked for Mr. Van Eyck to testify at a later date; a solution actually proposed by the Arbitrator when she denied Union's second motion. Ultimately, had the Arbitrator conducted the hearing without allowing any opportunity for Mr. Van Eyck's testimony or participation, Union's argument that the Arbitrator erred by not postponing the hearing might have been viewed with sympathy by the Magistrate Judge. However, under the facts, the court must agree with the Magistrate Judge that the Arbitrator did not err in denying a postponement to Union, which had offered no explanation for the late request, offered little information about the need for a continuance, and blatantly refused to attend a properly noticed hearing in direct contempt of the Arbitrator's decision.
The court does recognize that in a few cases courts have found the refusal to postpone an arbitration grounds to vacate an arbitration award. One court found that sufficient cause to postpone an arbitration hearing was provided when an out-of-town party was unable to attend. See Tube Steel Corp. of America v. Chicago Carbon Steel Products, 319 F. Supp. 1302 (S.D.N.Y. 1970). Another court vacated an arbitration award when the arbitrator refused to postpone when a union representative and witness became ill during the hearing. See Allendale Nursing Home, Inc. v. Local 1115 Joint Bd., 377 F. Supp. 1208 (S.D.N.Y. 1974). Union contends this case is similar to Allendale because Mr. Van Eyck was Petitioners' union representative and he was unable to attend due to medical reasons. The court disagrees. Mr. Van Eyck did not become ill during the arbitration. Rather, his surgery was 15 days prior to Union even suggesting a continuance was necessary. Union offers no reason for the delay. In addition, because the representative in Allendale was at the hearing, the arbitrator observed the representative become ill and need to leave. In fact, the arbitrator in Allendale, stated on the record that the representative had become "noticeably ill." Id. at 1212. Here, the arbitrator was given little information about Mr. Van Eyck's condition. Finally, the court in Allendale determined that the arbitrator had abused his discretion in failing to continue the hearing. Id. at 1214. Allendale was decided in 1974. Under current standards, the test is not whether the arbitrator abused her discretion in failing to continue the hearing. The standard is whether there was a reasonable basis for the arbitrator's decision not to grant a postponement. Scott, 141 F.3d at 1016;DVC-JPW Investors, 5 F.3d at 1174. In light of Petitioners' actions, the limited information given to the Arbitrator about the need for a continuance, and the timing of Petitioners' request, the court must agree with the Magistrate Judge and find the Arbitrator had an adequate reason to deny the postponement and proceed with the hearing. This is especially true in light of Union's failure to use its best efforts to present its case and Union's conduct in insulting the jurisdiction and authority of the arbitrator by refusing to attend the hearing, questioning of the arbitrator's competence, and threat that any action contrary to Union's position would certainly be reversed by this court. Thus, Union's objections do not provide a basis to not adopt the Findings and Recommendations.
The court notes that in the motion to vacate, Union makes additional contentions on why the arbitrator's decision should be vacated. The court has reviewed these arguments, and agrees with the Magistrate Judge's Findings and Recommendations. The court focused on Union's arguments regarding the failure to grant a postponement in this order because this is the issue addressed in Union's objections.
Therefore, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations filed March 31, 2006, are ADOPTED IN FULL; and
2. Union's petition to vacate the arbitration award is DENIED.
IT IS SO ORDERED.