State v. Henderson
| Decision Date | 27 February 2009 |
| Docket Number | No. S-07-010.,S-07-010. |
| Citation | 277 Neb. 240,762 N.W.2d 1 |
| Parties | STATE of Nebraska and the Nebraska State Patrol, Appellees, v. Robert HENDERSON and the State Law Enforcement Bargaining Council, Appellants. |
| Court | Nebraska Supreme Court |
Vincent Valentino, Lincoln, for appellants.
Jon Bruning, Attorney General, and Tom Stine, for appellees.
John E. Corrigan, of Dowd, Howard & Corrigan, L.L.C., Omaha, and Lawrence P. Schneider, of Knaggs, Harter, Brake & Schneider, P.C., Lansing, MI, for amicus curiae National Troopers Coalition.
Aaron Nisenson, of International Union of Police Associations, AFL-CIO, Sarasota, FL, and Jane Burke, of Keating, O'Gara, Nedved & Peter, P.C., Lincoln, for amicus curiae International Union of Police Associations, AFL-CIO.
David J. Kramer and Quinn Vandenberg, of Baird, Holm, L.L.P., Omaha, and Clare Pinkert, Steven C. Sheinberg, Steven M. Freeman, and Deborah R. Cohen, of Anti-Defamation League, for amicus curiae Anti-Defamation League.
From its very inception, the State of Nebraska has been founded upon principles of equality and tolerance that the Ku Klux Klan, from its very inception, has used violence and terror to oppose. When Robert Henderson, a veteran trooper of the Nebraska State Patrol, joined the Ku Klux Klan, he voluntarily associated himself with an organization that is expressly opposed to Nebraska's founding principles. To reinstate Henderson as a sworn officer of the Nebraska State Patrol would violate this state's explicit, well-defined, dominant public policy. For that reason, we affirm the district court's decision to vacate an arbitration award in Henderson's favor.
On November 1, 2005, an internal affairs investigator for the Nebraska State Patrol was informed that a member of the State Patrol might be participating in online discussions at a members-only Web site associated with the Ku Klux Klan. An investigation was commenced which revealed that appellant Henderson had joined the Knights Party, a Ku Klux Klan-affiliated organization, and participated in online discussions in a Knights Party online discussion forum. The investigating officer found that Henderson's membership reflected negatively on the State Patrol and brought the State Patrol into disrepute.
Henderson was fired for his activities, and the State Law Enforcement Bargaining Council (SLEBC) filed a grievance on Henderson's behalf, pursuant to the relevant collective bargaining agreement (CBA). When the grievance was not resolved, it was submitted to binding arbitration pursuant to the CBA. The arbitrator determined that the firing violated the CBA, because, according to the arbitrator, the State Patrol had violated Henderson's constitutional rights, and did not have "just cause" for terminating his employment under the CBA. The arbitrator ordered that Henderson be reinstated to his previous duties. The State Patrol, pursuant to Nebraska's Uniform Arbitration Act,1 filed an application in the district court to vacate the award.2 The district court granted the application to vacate the award, finding that the award violated "a well-defined and dominant public policy of this state." Henderson and SLEBC appeal.
Henderson and SLEBC assign, restated and consolidated, that the district court erred in vacating the arbitrator's award and instead should have confirmed the award.
We note the State Patrol's argument that Henderson lacks standing to prosecute this appeal. But while the original notice of appeal in this case was filed by Henderson, an amended notice of appeal was timely filed on behalf of Henderson and SLEBC. The State Patrol concedes that SLEBC has standing to appeal. Therefore, we do not address Henderson's standing, because all the issues raised by him have also been raised by SLEBC.
In reviewing a district court's decision to vacate, modify, or confirm an arbitration award under Nebraska's Uniform Arbitration Act, an appellate court is obligated to reach a conclusion independent of the trial court's ruling as to questions of law. However, the trial court's factual findings will not be set aside on appeal unless clearly erroneous.3
Arbitration is not a judicial proceeding; it is purely a matter of contract.4 In this case, the CBA between the State Patrol and SLEBC provides that if an employee's grievance is not satisfactorily resolved, it may be referred to arbitration. The parties in this case do not dispute that Henderson's grievance was properly submitted to arbitration.
Arbitration in Nebraska is governed by the Federal Arbitration Act if it arises from a contract involving interstate commerce5; otherwise, it is governed by Nebraska's Uniform Arbitration Act.6 In this case, there is no claim that the transaction involved interstate commerce, so Nebraska law applies. We note, however, that because the applicable provisions of the Uniform Arbitration Act and the Federal Arbitration Act are similar, we look to federal case law explaining the scope of judicial review of arbitration awards.
We have explained that judicial review of an arbitrator's award is severely circumscribed.7 Appellate review of an arbitrator's award is necessarily limited because "`to allow full scrutiny of such awards would frustrate the purpose of having arbitration at all—the quick resolution of disputes and the avoidance of the expense and delay associated with litigation.'"8 Strong deference is due an arbitrative tribunal.9
And when parties agree to arbitration, they agree to accept whatever reasonable uncertainties might arise from the process.10 Because the parties to a collective bargaining agreement have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts and the meaning of the contract that they have agreed to accept.11 Courts do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.12 In other words, a court may not overrule an arbitrator's decision simply because the court believes that its own interpretation of the contract, or the facts, would be the better one.13
Therefore, in this case, we do not revisit the arbitrator's factual findings, interpretation of the CBA, or ultimate conclusion that the State Patrol violated the CBA in its termination of Henderson's employment. Nor do we revisit the arbitrator's discussion of constitutional issues, although his conclusions on those issues are highly suspect.14 The State Patrol does not contend, nor is there any basis in the record to conclude, that any of the statutory bases under the Uniform Arbitration Act for vacating an arbitration award are applicable in this case.15 Instead, the issue in this appeal is whether the district court correctly determined that the arbitrator's award can be vacated, as the State Patrol contends, because reinstating Henderson to the State Patrol would be contrary to public policy.
In that regard, we note that the sole matter submitted to the arbitrator for disposition was, The issue submitted for arbitration was consistent with the CBA, which defines a "grievance" subject to arbitration as "a claimed breach, misinterpretation, or misapplication of the terms of this Agreement." The arguments of the parties, and the decision of the arbitrator, touch on constitutional issues. But we view those issues, in light of the scope of the CBA and arbitration agreement, to be subsumed in the question whether the CBA was violated—and thus in the question whether the remedy for that violation violates public policy. In other words, we do not view this case as presenting a civil rights claim and do not address what remedy, if any, might be appropriate for any alleged violation of Henderson's constitutional rights. We note that compensatory damages might be available to a plaintiff injured by a breach of contract even when specific performance of the contract would violate public policy.16 But the only issue before the arbitrator in this case was the application of the CBA, and the only issue before this court is whether the arbitrator's remedy for violation of the CBA is enforceable.
We have not previously addressed whether an arbitration award, under the Uniform Arbitration Act, can be vacated by a court on public policy grounds. The State Patrol argues that we should adopt such a doctrine, using the reasoning of the U.S. Supreme Court in cases such as W.R. Grace & Co.17; Misco, Inc.18; and Eastern Associated Coal Corp. v. Mine Workers.19
In W.R. Grace & Co., an arbitrator found that an employer had unlawfully laid off employees in violation of a collective bargaining agreement, despite the fact that the employer had been attempting to comply with a conciliation agreement with the Equal Employment Opportunity Commission. The employer sought to vacate the arbitrator's award on the ground that it violated public policy. Although the U.S. Supreme Court rejected the claim that the arbitrator's interpretation of the collective bargaining agreement violated public policy, the Court recognized:
[A] court may not enforce a collective-bargaining agreement that is contrary to public policy.... If the contract as interpreted by [the arbitrator] violates some explicit public policy, we are obliged to refrain from enforcing it. ... Such a public policy, however, must be well defined and dominant, and is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests."20
The Court extended that reasoning in...
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Seldin v. Estate of Silverman
...on the ground that it is contrary to public policy. In making this assertion, the Arizona Seldins rely on this court’s prior holding in State v. Henderson .31 In Henderson , a Nebraska State Patrol officer had been terminated based on his membership in a Ku Klux Klan-affiliated organization......
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...agreed to accept the arbitrator's view of the facts and the meaning of the contract rather than that of a court. See State v. Henderson , 277 Neb. 240, 762 N.W.2d 1 (2009), disapproved on other grounds, Seldin v. Estate of Silverman , 305 Neb. 185, 939 N.W.2d 768 (2020) . As we have previo......
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