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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX VIRGIN ISLANDS WATER & POWER ) AUTHORITY, ) Petitioner, ) oe ) CIVIL NO. SX-06-CV-149 VIRGIN ISLANDS WATER & POWER ACTION TO VACATE ARBITATOR’S AUTHORITY, PROFESSIONA & ) AWARD TECHNICAL EMPLOYEES UNION and ) Arbitrator H.A. CURT OTTO, ) Respondents. ) MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on Respondent Virgin Islands Water & Power Authority, Professional & Technical Employees Union’s (Union) Motion to Dismiss and Memorandum in Support (Motion), filed May 1, 2006; and Petitioner Virgin Islands Water & Power Authority’s (WAPA) Opposition (Opposition) thereto, filed May 12, 2006. | BACKGROUND This matter stems from the June 6, 2005 termination of former WAPA employee Carmelita Muhammad, a member of the Union. Complaint to Vacate Arbitrator’s Award (Complaint) J 6. On June 16, 2005, the Union filed an appeal of Muhammad’s termination, pursuant to the grievance procedure set forth in Section 6.3 of the Collective Bargaining Agreement (CBA). Jd. J 7. On July 19, 2005, the Union filed a grievance and demand for arbitration on Muhammad’s behalf, docketed as Grievance No. JB-0719 05, alleging a violation of Sections 6.13 and 6.14 of the CBA, most notably for loss of pay until final disposition of the grievance “at Step 3.”! Id. § 8, Exhibit A. Section 6.13: Suspension and Discharge Grievances provides: No employee shall be suspended or discharged except for just cause. In the event an employee is suspended or discharged, the Authority shall give such employee and the representative of the Union a written notice setting forth the cause for suspension or discharge. Grievances arising from suspension, demotion or discharge may be appealed within ten (10) workdays of such notice of such action. A suspension of five (5) days or less may be appealed in writing to Step 2. 1 Neither party has herein described and defined the steps of the grievance process set forth in Section 6.03 of the CBA, nor submitted a copy of the CBA, but each has simply referenced and quoted in the Complaint, Motion and Opposition Sections 6.6, 6.13 and 6.14 of the CBA. WAPA v. WAPA PTEU; SX-06-CV-149 Memorandum Opinion and Order A suspension of more than five (5) days, demotion or discharge may be appealed in writing directly to the Executive Director and such grievance shall be heard by the Executive Director or his designee and a written decision shall be submitted to the Union within five (5) workdays. In the event the grievance remains unsettled, the President of the P&T Union may, by written notice to the Executive Director, within ten (10) workdays of receipt of the latter’s decision, appeal the matter as set forth in Section 6.7 of this Article. Section 6.14 Loss of Pay During Grievances provides: All grievances including the grievance arising from dismissal, suspension or demotion, shall be governed by the provisions of this article, provided that a proceeding for dismissal, suspension or demotion shall not result in loss of pay while pending and until final disposition at Step 3. The grievance requested: (1) pay from June 27, 2005 until final disposition at Step 3 of the grievance process; (2) $500 for malicious loss of pay and interest of 12% on all lost wages; and (3) $5,000 for Attorney’s fees to the Union for the continued violation of the CBA. Jd. H.A. Curt Otto, Esq. presided over the arbitration hearing on August 22, 2005. Id. At the hearing, as it does here, WAPA argued that Section 6.6 of the CBA limits the time period within which the grievant would receive pay to no more than 15 days after the filing of an appeal. Id. 7 8. Section 6.6: Time Limits provides: The time limits set forth in this Article shall be binding on the parties unless extended in writing and the processing of a grievance to arbitration shall not waive the rights of the Authority to assert before the Arbitrator that the grievance was untimely unprocessed. If the Union fails to process a grievance within the time limits provided, the grievance shall be considered disposed of on the last answer of the Authority. The Union may withdraw a grievance at any step in this procedure by notifying the Authority in writing. If the Authority fails to process its response to a grievance within the time limits provided, the Union shall have the right of automatic appeal. Petitioner asserts in its Complaint that the arbitrator also failed to resolve the commencement period of the award of the back pay and whether grievant had beeri receiving other sources of pay which would reduce the amount of back pay owed grievant. Id. J 11. Petitioner avers that the WAPA v. WAPA PTEU; SX-06-CV-149 Memorandum Opinion and Order arbitrator’s award must be vacated pursuant to 9 U.S.C. § 10 of the Federal Arbitration Act (FAA)? because it demonstrates “manifest disregard” for the CBA. Jd. J 12 (citing Major League Umpires Ass'n v, Am. League of Prof’! Baseball Clubs, 357 F.3d 272 (3d Cir. 2004).? Petitioner requests that (1) the arbitrator’s award dated January 24, 2006 be set aside; and (2) the Court declare that pursuant to Section 6.14 grievant back pay shall be limited to 15 days from the date the appeal is filed. Complaint, at 5. LEGAL STANDARD It is questionable whether the highly deferential standard of review employed by 9 U.S.C. § 10 applies to the Superior Court in its review of actions to vacate arbitration awards. In Gov’t of the Virgin Islands v. United Indus., Transp., Prof. & Gov’t Workers of N.A.- Seafarers International Union of N.A., 2016 V.I. Supreme LEXIS 2 (V.I. 2016), the Supreme Court noted that the deferential standard of review of 9 U.S.C. § 10 “is directed explicitly to federal courts” (Id. at *22-24, citations omitted), but did not determine the issues because it was clear that the arbitrator did not attempt to apply the CBA negotiated by the parties, but instead “substituted the express terms of the collective bargaining agreement with his individual sense of justice.” 2016 V.I. Supreme LEXIS 2, *32-33. 2 9 U.S.C. §10 states: (a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration- (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were 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; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. (b) Ifan award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators. (c) The United States district court for the district wherein an award was made that was issued pursuant to section 580 of title 5 may make an order vacating the award upon the application of a person, other than a party to the arbitration, who is adversely affected or aggrieved by the award, if the use of arbitration or the award is clearly inconsistent with the factors set forth in section 572 of title 5 (emphasis added). 3 Because this Third Circuit decision case was rendered on an appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action Nos. 01-cv-02790, 01-cv-02816), it represents merely persuasive authority. See Najawicz v. People of the V.., 58 V.I. 315, 327-28 (V.I. 2013). WAPA v. WAPA PTEU; SX-06-CV-149 Memorandum Opinion and Order It is not clear that the provisions of the FAA apply at all to this matter as “the FAA is premised on Congress’s power to regulate interstate commerce — and not Congress’s plenary powers under the territorial clause, and thus a contract comes within the purview of the FAA only when an interstate nexus is shown.” /d. at *14 n.3 (citing Allen v. HOVENSA, LLC., 59 VI. 430, 442 n.2; Gov't of the V.I. v. United Indus. Workers, 40 V.I. 489, 495 (3d Cir. 1999)). Whether or not the parties’ CBA affects interstate commerce, the role of the arbitrator is consistent with the “principal purpose” of the FAA in “ensuring that private arbitration agreements are enforced according to their terms.” Jd. at 24 (quoting Volt Info. Sciences v. Board of Trs., 489 U.S. 468, 478). “[T]he task of an arbitrator is to interpret and enforce a contract, not to make public policy.” Id. at * 24-25 (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 671-72 (2010)). As such, we review whether the arbitrator in this matter acted within his power to interpret and enforce the terms of the parties’ CBA. DISCUSSION Here, both parties in their advocacy, and the arbitrator in his Decision and Order focused on the language of the CBA, specifically Sections 6.6, 6.13 and 6.14. Petitioner argues that “in the event that WAPA fails to process a grievance in accordance with the time limits set forth in section 6.13, the provisions of 6.6 come into play.” Opposition, at 4. “Section 6.6 makes it expressly clear that in the event WAPA fails to process its response to a grievance within the time limits provided, the Union shall have the right to automatic appeal and thus limited the time period within which the Grievant could continue to receive pay to no more than fifteen (15) days after the filing of an appeal. Id. (emphasis in original). The Court, like the arbitrator, does not conclude that Section 6.13 invokes Section 6.6. Rather, the plain language of Section 6.13 explicitly invokes only Section 6.7. Section 6.6 sets forth no specific timelines, but rather outlines the consequences of non-adherence to general timelines. Finally, the only section that specifically references loss of pay during grievances is Section 6.14, which unambiguously states “that a proceeding for dismissal, suspension or demotion shall not result in loss of pay while pending and until final disposition at Step 3.” At the time of the arbitrator’s ruling, no “Step 3 Hearing” had been held. Complaint, Exhibit B - Decision and Order, at 1.4 4 As noted, the record before the Court is devoid of any information about the timelines, procedural requisites or other particulars of the grievance process, none of which are essential to the determination of this Motion. WAPA v. WAPA PTEU; SX-06-CV-149 Memorandum Opinion and Order The arbitrator’s decision focuses on the language of Sections 6.6, 6.13 and 6.14, as follows: Without the language of § 6.14, the Authority could, potentially, allow a dismissal to languish forevermore without penalty. Per the language of § 6.14, the Authority must pay the grievant “pending and until final disposition at Step 3.’ The provision is the only protection a discharged or suspended grievant has against potential abuse of the process by the Authority. The Authority, per § 6.14, is obligated to make payment to the Grievant until the matter has been finally disposed of per Step 3. The Grievant’s request for relief is GRANTED, and any back pay owed but not paid must be paid the Grievant. Id. WAPA has presented nothing to suggest that the arbitrator has exceeded his authority, or that he engaged in any manner disregarded the plain text or the express terms of the CBA. Rather, the arbitrator has merely interpreted and enforced the plain and unambiguous terms of the CBA. Because the Court finds that the arbitrator has not exceeded his powers or strayed from interpretation and application of the parties’ agreement, Respondent’s Motion to Dismiss will be granted.° Based on the foregoing, it is hereby ORDERED that Respondent’s Motion to Dismiss is GRANTED. It is further ORDERED that Petitioner’s Complaint to Vacate Arbitrator’s Award is DISMISSED WITH PREJUDICE. DATED: April 7%, 2016. Md yn DOUGLAS A.BRADY / Judge of the Superior Court/ ATTEST: ESTRELLA GEORGE Acting Clerk of the Court a > The Court also finds meritless two issues that WAPA claims that the arbitrator “failed to resolve and/or clarify,” namely “the commencement period for the award of the back pay” and whether Muhammad received unemployment benefits or other compensation “which would serve to reduce the amount of the back pay owed to Grievant.” Complaint J 11. As to the former, the arbitrator quoted the language of Section 6.14 that clearly states that pay is due during the period that the grievance is pending: “a proceeding dismissal... shall not result in loss of pay while pending and until final disposition at Step 3.” As to the latter, WAPA cites no CBA provision that continued pay during a grievance procedure is subject to offsets, or that it offered any evidence to the arbitrator that Muhammad had actually received any other compensation after her dismissal.