Mossman v. City of Oakdale

• Decision Date: 14 January 2009
• Docket Number: No. F054983.,F054983.
• Citation: 170 Cal.App.4th 83,87 Cal. Rptr. 3d 764
• Court: California Court of Appeals Court of Appeals
• Parties: KIMBERLY MOSSMAN, Plaintiff and Respondent, v. CITY OF OAKDALE, Defendant and Appellant.

170 Cal.App.4th 83

87 Cal. Rptr. 3d 764

KIMBERLY MOSSMAN, Plaintiff and Respondent, v. CITY OF OAKDALE, Defendant and Appellant.

No. F054983.

Court of Appeals of California, Fifth District.

January 14, 2009.

Costanzo & Associates and Neal E. Costanzo for Defendant and Appellant.

Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer and Christopher W. Miller for Plaintiff and Respondent.

OPINION

WISEMAN, Acting P. J.

In this twist arising from a contractual arbitration proceeding, we address whether an arbitrator's award that concludes (1) the City of Oakdale violated its own personnel rules, and (2) then directing the employee to be "made whole," without more, is an enforceable award. As sometimes happens, the arbitrator ordered the parties to work out the details of the make-whole remedy, which they did not do. This appeal flows from a judgment denying a motion to vacate the arbitration award pursuant to Code of Civil Procedure section 1286.2 on the ground the arbitrator did not specify an adequate remedy and therefore did not resolve all issues submitted to arbitration. Although we conclude that the arbitrator resolved issues presented in the arbitration, we order the judgment reversed because, in its current form, the judgment is unenforceable. We remand to enable the original arbitrator to determine the appropriate nature of the make-whole remedy.

PROCEDURAL AND FACTUAL SUMMARIES

This is an appeal from a judgment denying a motion to vacate an arbitrator's award pursuant to Code of Civil Procedure section 1286.2¹ brought by appellant City of Oakdale (Oakdale) and confirming the award issued by arbitrator Kathleen Kelly on November 2, 2006, in favor of respondent Kimberly Mossman (Mossman). Mossman filed a petition to confirm the arbitrator's award near or at the time Oakdale filed its petition to vacate the award. The two petitions were consolidated, and the petition to confirm was granted at the same time the petition to vacate was denied.

Mossman was employed by Oakdale in the position of administrative secretary to the police chief. In August 2005, Mossman was notified that her position was being eliminated because of an impending budget cut. Mossman inquired about the bumping rights identified in paragraph 403² of Oakdale's Merit System Rules and Regulations (2004 ed.) (personnel rules). The paragraph provides that, in any reduction caused by lack of work or funds, seniority "shall be observed" and that "[t]he order of lay-off shall be in the reverse order of total cumulative time the employee has served in municipal service." At the time, the individuals holding two comparative positions were more senior to Mossman. However, there were two full-time administrative secretary vacancies open, one in the community development department and one in the public works department. There was also a part-time administrative secretary vacancy in the city manager's office. Mossman met the minimum qualifications for these three open positions. She asked to be allowed to fill one of them in exercise of her bumping rights. She was told, however, that she did not have the right to bump into administrative secretary positions in other departments. She was not considered for the vacant positions and ultimately was terminated.

In response, Mossman filed a grievance pursuant to paragraph 1104 of the personnel rules. At the first two steps of the grievance procedure (review by the department head and by the city administrator), Mossman's grievance was rejected. In place of the third step (an appeal to a convened adjustment board), the parties agreed to submit the dispute to a neutral arbitrator. Arbitrator Kelly was selected.

The arbitration hearing was held on May 8, 2006. At the start of the hearing, the parties stipulated that the issue being submitted for final and binding determination was: "Did [Oakdale] deny bumping rights to [Mossman] in violation of [the personnel rules] and if so what is the appropriate remedy?" In addition, the parties agreed that, in the event the arbitrator's award contained some remedy, the arbitrator would retain jurisdiction over any disputes that might arise concerning interpretation or implementation.

In a written opinion, the arbitrator found in favor of Mossman, noting that paragraph 403 "clearly contemplates some capacity on the part of laid off employees to bump into positions for which they are qualified." The arbitrator found that, in the summer of 2005, Mossman was asking to fill positions that were vacant and "[w]hatever orientation [Mossman] might have required for those work settings [positions in other city departments] cannot be found so great as to preclude the operation of bumping rights under the general language of [paragraph] 403. She should have been offered any vacancy existent for the position of Administrative Secretary." The arbitrator concluded that Oakdale had violated paragraph 403 and ordered that Mossman "be made whole for losses sustained as the result of this violation." The arbitrator ordered that the details of the remedy be remanded to the parties and gave them 30 days from the date of the award to submit any unresolved issue to her for resolution. Neither party acted within this timeframe.

Since her termination, Mossman has found part-time employment. She does not receive the dental, health, vision, or retirement benefits formerly provided to her as an Oakdale employee.

DISCUSSION

I. Ambiguity of award

(1) The exclusive grounds for vacating an arbitration award are those listed in section 1286.2 of the California Arbitration Act, section 1280 et seq.³ (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 27-28 [10 Cal.Rptr.2d 183, 832 P.2d 899].) Oakdale argues that the arbitrator acted in excess of her jurisdiction by refusing to decide an issue submitted to her for resolution. (2) Section 1283.4 of the arbitration act requires that an arbitrator's award "shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy." (§ 1283.4.) According to Oakdale, although the issue of remedy was submitted to the arbitrator, she did not decide it, instead remanding the issue back to the parties. If Oakdale is correct, failure to decide an issue submitted to an arbitrator provides a valid ground for vacating the award. (See Banks v. Milwaukee Ins. Co. (1966) 247 Cal.App.2d 34, 38-39 [award must be vacated because arbitrator admitted he did not consider issue of general damages, and general damages were part of issues submitted to arbitrator].)

(3) We begin with a brief reminder of the general principles governing contractual arbitration. An arbitrator's power to resolve a dispute extends only to those disputes submitted to the arbitrator by the parties. (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323 [197 Cal.Rptr. 581, 673 P.2d 251] [arbitration is matter of agreement between parties and limited to scope of their agreement]; California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 951 [arbitrator cannot exceed authority granted him or her].) Contractual arbitration is a voluntary process by which parties agree to submit their dispute to an impartial third party. (Herman Feil, Inc. v. Design Center of Los Angeles (1988) 204 Cal.App.3d 1406, 1414 .) It is a highly favored method for resolving disputes between parties because it is speedy and inexpensive. (Luster v. Collins (1993) 15 Cal.App.4th 1338, 1344 ; see also Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 9.) The award of an arbitrator is not self-executing. Unless confirmed or vacated by a court, an arbitration award is but a contract between the parties. (§ 1287.6.) The general practice is for one or more of the parties to an arbitration award to seek by petition to have the award either vacated or confirmed. (Luster v. Collins, supra, 15 Cal.App.4th at p. 1344.) An arbitration award may only be enforced as written and, when confirmed, the award is reduced to a final and enforceable judgment. (Oil, Chemical & Atomic Workers, etc. v. Rohm, etc. (5th Cir. 1982) 677 F.2d 492, 494; Hanford Atomic Metal Trades Council v. General Electric Co. (9th Cir. 1966) 353 F.2d 302, 307-308.)

(4) Further, in the absence of California authority, it is appropriate to rely on federal authorities construing a federal statute similar in purpose. (Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 623 .) The California statutory scheme for enforcement of private arbitration agreements is similar to the federal scheme. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1343 [82 Cal.Rptr.3d 229, 190 P.3d 586].)

(5) When we apply the governing law to the facts in this case, we conclude that the arbitrator did not fail to resolve the issues submitted to her for resolution. The "make-whole" remedy granted Mossman is a common remedy found in labor law cases. Its purpose is to return the aggrieved employee to the economic status quo that would exist had it not been for the employer's conduct. (In re Continental Airlines (3d Cir. 1997) 125 F.3d 120, 135; North Star Steel Co. v. N.L.R.B. (8th Cir. 1992) 974 F.2d 68, 70-71 [make-whole remedy awards employees monetary damages for money lost during period of employer violations]; Standard Fittings Co. v. N.L.R.B. (5th Cir. 1988) 845 F.2d 1311, 1314 [make-whole remedy imposes upon employer obligation to pay each employee difference between what employee would have made had employee received scheduled wage increase on time and what employee actually made]; N.L.R.B. v. Hartman (9th Cir. 1985) 774 F.2d 1376, 1388 [make-whole remedy for loss of pay and other benefits provided under contract traditionally granted and designed to restore status quo and enforce public right].)

The arbitrator ordered that Mossman be made whole for the losses sustained as a result of Oakdale's breach of its personnel rules. The...