International Ass'n of Firefighters, Local 1285 v. City of Las Vegas

• Decision Date: 20 December 1991
• Docket Number: No. 21745,21745
• Citation: 823 P.2d 877,107 Nev. 906
• Parties: INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 1285, a Nevada corporation, Appellant, v. CITY OF LAS VEGAS, Nevada, a municipal corporation of the State of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 877

823 P.2d 877

107 Nev. 906

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 1285, a Nevada corporation, Appellant, v. CITY OF LAS VEGAS, Nevada, a municipal corporation of the State of Nevada, Respondent.

No. 21745.

Supreme Court of Nevada.

Dec. 20, 1991.

Rehearing Denied Feb. 11, 1992.

[107 Nev. 907] Hilbrecht & Associates and Jeffrey E. Fisher, Las Vegas, for appellant.

Richard J. Bortolin, Las Vegas, for respondent.

OPINION

PER CURIAM:

FACTS

Appellant International Association of Firefighters, Local 1285 ("Local 1285"), represents Grant K. Grove ("Grove"). Grove has been a fire investigator with the Fire Services Department of the City of Las Vegas ("the City") since September 8, 1980. As a fire investigator, Grove carried a duty weapon and Las Vegas Fire Department identification badges and held peace officer status. A City memorandum dated December 19, 1985, advised Grove that peace officer status is effective only while on duty and that neither duty weapons nor identification badges are to be carried while off duty.

On September 12, 1988, Grove was off duty and driving his private automobile on Flamingo Road in Las Vegas. Another motor vehicle, operated by Charles Vowell, swerved in front of Grove and then slowed, causing Grove to brake suddenly. Believing Vowell's actions to be illegal, Grove carried out a traffic stop. In executing the stop, Grove displayed his identification badge to Vowell and represented that, as a sworn peace officer, he possessed the authority to conduct a non-job-related traffic stop. According to Vowell, Grove struck him and displayed his duty firearm in a threatening manner. Vowell subsequently filed criminal charges based on these allegations. Grove denied the allegations but admitted to carrying a handgun on the day of the incident.

The City learned of Grove's misconduct and notified him of its intention to take disciplinary action. After a meeting between Grove and the Deputy Director of Fire Services, the City issued a notice of decision making leave and demotion ("the notice") in which the City formally demoted Grove to firefighter and gave him one day of decision making leave. ¹ The notice specified that Grove's misconduct constituted "cause" for discipline pursuant to City of Las Vegas Civil Service Rule 510.2(H). The notice also expressly stated that the City would not discipline Grove for the criminal charges filed by Vowell.

On November 29, 1988, the Las Vegas Justice Court dismissed the charges due to Vowell's inability to identify Grove. The demotion and decision making leave outlined in the notice remain the only disciplinary steps taken by the City against Grove for the September 12th incident.

Assisted by Local 1285, Grove filed a grievance pursuant to the procedures established by the parties' collective bargaining agreement ("the CBA"). According to Grove, the City violated the CBA by citing Civil Service Rule 510.2(H) as the basis for his discipline and by failing to adhere to the disciplinary system outlined in the "Positive Discipline" manual. Specifically, Grove and Local 1285 asserted that the City's use of demotion violated the CBA. The City and Grove agreed to hold this grievance in abeyance pending the outcome of a separate but related grievance between Local 1285 and the City.

In this separate grievance, Local 1285 contended that the CBA required the City to base discipline on violations of fire department rules and regulations or fire department standard operating procedures, rather than on civil service rules. The union further asserted that, in determining what disciplinary steps should be taken, the City must follow the framework set forth in a manual entitled "Positive Discipline."

On April 28, 1989, Arbitrator Richard Calister ruled in favor of Local 1285, holding that the CBA "subsumes and encompasses the procedures and standards for discipline within the [Fire] Department ... through Rules and Regulations, Standard Operating Procedures and Positive Discipline, thus estopping the [City] from relying on the ... Civil Service Rules as a basis for discipline."

In light of Arbitrator Calister's decision, the City reconsidered the disciplinary action taken against Grove. On May 19, 1989, the City issued Grove an amended notice of decision making leave and demotion ("amended notice") which deleted any reference to the civil service rules, but retained demotion and decision making leave as disciplinary measures for his actions. Grove and Local 1285 ultimately requested arbitration.

Arbitrator George E. Marshall, Jr., heard the dispute on November 1, 1989. On December 6, 1989, he issued a decision denying Grove's grievance and upholding the City's disciplinary action for the following reasons: (1) Despite Arbitrator Calister's decision to the contrary, the City could properly rely on its civil service rules as the basis for disciplinary action against Fire Department employees; (2) The City followed the steps contained in the positive discipline manual in disciplining Grove; and (3) Although the City utilized Vowell's criminal allegations in determining the seriousness of Grove's actions and deciding upon the appropriate disciplinary response, the subsequent dismissal of these charges does not render the disciplinary action inappropriate or unwarranted, as there was ample evidence to establish cause for discipline.

On March 6, 1990, Local 1285 filed a motion requesting that the district court vacate Arbitrator Marshall's award. The court denied the union's motion, concluding that Arbitrator Marshall acted within his authority in sustaining Grove's demotion under the parties' CBA.

DISCUSSION

Local 1285 contends that Arbitrator Marshall exceeded the scope of his authority in sustaining Grove's demotion.

In Int'l Assoc. Firefighters v. City of Las Vegas, 104 Nev. 615, 764 P.2d 478 (1988), we held that disciplinary disputes between Local 1285 and the City are arbitrable pursuant to the arbitration provisions contained in the parties' collective bargaining agreement. Any judicial review of a resulting arbitration decision must be done according to Chapter 38 of the Nevada Revised Statutes, the Uniform Arbitration Act. City of Boulder v. General Sales Drivers, 101 Nev. 117, 119, 694 P.2d 498, 499 (1985). The Uniform Arbitration Act, however, prescribes a limited standard of judicial review for arbitration awards. NRS 38.145 enumerates several grounds for vacating an award.

In the case before us, Local 1285 relies solely upon NRS 38.145(1)(c), which requires the reviewing court to vacate an award if the arbitrator exceeded his powers. An arbitrator's award "must be based on the collective bargaining agreement, and must be enforced by the courts even if the arbitrator's interpretation of the contract is ambiguous or would differ from the court's interpretation." IBEW Local 396 v. Central Tel. Co., 94 Nev. 491, 493, 581 P.2d 865, 867 (1978); see also United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960) (arbitral award is legitimate only so long as it "draws its essence from the collective bargaining agreement").

Courts have allowed arbitrators wide latitude in interpreting labor contracts. See, e.g., Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 581-582, 80 S.Ct. 1347, 1352-1353, 4 L.Ed.2d 1409 (1960). This court has been equally deferential, stressing that "[w]hen an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem." Reynolds Elec. v. United Bhd., 81 Nev. 199, 208, 401 P.2d 60, 65 (1965) (quoting Enterprise Wheel & Car Corp., 363 U.S. at 597, 80 S.Ct. at 1361).

The deference accorded an arbitrator, however, is not limitless; he is not free to contradict the express language of the contract. See, e.g., Leed Architectural Products v. Local 6674, 916 F.2d 63, 65 (2nd Cir.1990). This limitation on arbitral authority holds for disciplinary disputes as well. Where a labor contract expressly prescribes particular discipline for specified offenses, an arbitration award overturning or modifying that discipline does not "draw its essence" from the contract and is in excess of the arbitrator's authority. Intern. Broth. of Firemen v. Nestle Co., Inc., 630 F.2d 474 (6th Cir.1980).

Arbitrator Calister's award prohibited the City from relying upon Civil Service Rules as a basis for disciplinary actions against firefighters. ² Arbitrator Marshall expressly declined to follow Calister's award and concluded that the City properly relied upon the civil service rules in disciplining Grove.

Local 1285 asserts that the doctrine of collateral estoppel should apply in the arbitration context and that Arbitrator Calister's decision thus was binding upon the parties in the subsequent dispute. Local 1285 further argues that Arbitrator Marshall exceeded his authority by expressly contradicting Arbitrator Calister's controlling interpretation of the CBA. The City responds that although Calister's award had persuasive value, Arbitrator Marshall was not bound by the previous contract interpretation.

The applicability of collateral estoppel to arbitration awards is an issue of first impression for this court. Those courts that have considered the issue have held the doctrine to be applicable, especially in the context of labor arbitration. E.g., Todd Shipyards Corp. v. Industrial U. of Marine & Ship. Wkrs., 242 F.Supp. 606, 611 (D.N.J.1965) (arbitrator acting within the scope of his authority has the effect of a judgment and is conclusive as to all matters submitted for decision); Cleveland v. Ass'n of Cleveland Fire Fighters, 485 N.E.2d 792 (Ohio App.1984) (arbitration award has the same preclusive effect as a court judgment). In these jurisdictions, the party seeking to avoid issue preclusion has the burden of showing that the arbitrators did...