Monthly Archives: August 2016

Drugs in the workplace, reinstatement and public policy. Connecticut Supreme court upholds arbitrator’s award

A maintenance employee of the University of Connecticut Health Systems was caught smoking marijuana on the Health Center premises during his scheduled shift. He was found to be in possession of approximately three quarters of an ounce of marijuana. His employment was terminated and the propriety of that action was submitted to arbitration for resolution

In his award, Arbitrator Jeffrey Selchick rejected grievant’s explanations for his actions and found  that he had deliberately taken the marijuana to work so he could smoke it there. He concluded, however, that termination was too severe and not supported by just cause. He noted that the Health Center’s policy permitted, but did not require, termination for drug related offenses. He also found mitigation in grievant’s fifteen years of discipline free employment prior to the incident. Finally, while noting that grievant’s job duties raised some safety and security concerns, he concluded that grievant’s return to the workplace would not create a danger to persons or property. The arbitrator reduced the termination to a six month suspension, ordered that grievant be subject to random drug and alcohol test for a one year period, and imposed a last chance provision on the reinstatement.

The Health Center sought to vacate the award, contending that it was contrary to public policy. The trial court (here) granted the request to vacate, finding the reinstatement order contrary to a strong public policy against drug use in the workplace.

The Connecticut Supreme Court has now reversed that decision, effectively confirming the arbitrator’s award.  State of Connecticut v. Connecticut Employees Union Independent et al.   The Court applied the standards it developed in Burr Road Operating Co. II. v. New England Health Care Employees Union to assess whether an arbitrator’s award reinstating an employee was contrary to public policy. The Burr Road decision, issued after the arbitrator’s award and the trial court’s decision in this case, synthesized four principal factors for use in making that determination:

(1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible.

Applying that test here, the Court determined that neither the Connecticut nor the federal drug free work place policies compelled termination as the only appropriate penalty for drug related misconduct. Regarding the second factor, the Court agreed with the conclusion of the arbitrator that grievant’s misconduct “was not of such a nature that his return to work would endanger persons or property.” The Court found that neither of these two factors supported a conclusion that the award was contrary to public policy.

The Court found the third factor “essentially … neutral” noting that the risks created by grievant’s misconduct jeopardized mostly him rather than the Health Center’s clients or other parties. Finally, the Court accepted the arbitrator’s conclusion that grievant was unlikely to engage in similar conduct in the future, especially given the significant discipline imposed (a six month suspension), the random drug and alcohol testing, and the last chance condition on his reinstatement. Nor would the award encourage other employees to engage in similar conduct.

The Court summarized its holding:

In closing, we emphasize that public policy based, judicial second-guessing of arbitral awards reinstating employees is very uncommon and is reserved for extraordinary circumstances, even when drug or alcohol related violations are at issue. Our general deference to an experienced arbitrator’s determinations regarding just cause and the appropriate remedy is vital to preserve the effectiveness of an important and efficient forum for the resolution of employment disputes. If an employer wishes to preserve the right to discharge employees guilty of misconduct such as that at issue in this case, thereby removing the matter from an arbitrator’s purview, it remains free to negotiate for the inclusion of an appropriate provision in the collective bargaining agreement that would achieve that result.

Justice Espinosa concurred (here) but expressed a concern that rigid application of the Burr Road test may encourage arbitrators to “self insulate” their awards from review by adhering closely to the Burr Road formula and making an explicit finding on the absence of a risk of recidivism. She also cautioned that failing to consider more prominently the effect of an arbitrator’s award on other employees may send an unacceptable message to other employees and the public concerning the conduct in question.

Source: ADR

Speech: Baroness Neville-Rolfe speech at the 2016 UK-China IP Symposium

Good morning ladies and gentlemen. Thank you Commissioner Shen for your kind introduction. I’m really delighted to back in Beijing for this UK-China IP Symposium.

As you said I was last here in 2014. And I have since been re-appointed Minister for Intellectual Property by our new Prime Minister. I was also recently appointed energy minister, and I am enjoying those extra responsibilities, which will also allow further UK-China collaborations.

This is the 2nd IP Symposium I have had the privilege to attend in China. And I am pleased that a delegation of British government and private sector experts have travelled with me to participate today.

I am especially happy to be here with His Honour Judge Richard Hacon. Judge Hacon is one of our leading IP judges and you will be hearing from him a little later.

Announcements: Patents

Today’s Symposium is important as it celebrates the 20th anniversary of UK IPO-SIPO cooperation on patents and designs.

Since that auspicious start 20 years ago, the IPO-SIPO relationship has gone from strength-to-strength, as Commissioner Shen has outlined. IP cooperation is a central part of the UK-China bilateral relationship.

This underpins our mutual passion for innovation. As Commissioner Shen has said, this Symposium is a follow up to a very successful State Visit by President Xi Jinping to the UK. I was fortunate to have been involved in that visit.

We are shaping the global IP system through our policy leadership on things like Patent Office work-sharing, and, in the case of China, the volume of applications originating for our companies.

So I am pleased to announce today that:

  • The UK-China Patent Prosecution Highway has been extended indefinitely;

  • The UK will become an official user of SIPO’s Cloud Patent Examination System, or CPES, by the end of 2016; and

The UK IPO and SIPO will hold joint workshops on global patent topics such as grace periods and IP valuation during our heads-of-office meeting in China later this year.

This demonstrates the strength of our relationship with SIPO. Long may it continue. I look forward to working on these issues and those that Commissioner Shen outlined.

EU referendum

I would like to discuss my visit to China this week, and touch on some of the key topics of today’s Symposium.

But first I would like to briefly cover the recent referendum on the UK’s membership of the European Union. You will have seen that the British people voted to leave the EU, and that our new Prime Minister is committed to implementing that decision.

The process of negotiation and leaving the EU will of course take time. There will be no immediate changes and I will continue to represent the UK and engage constructively at the EU Competitiveness Council.

Today, the UK remains a member of the EU and applications for IP rights giving protection in the UK will continue as usual.

The UK’s excellent patent and trade mark attorneys continue to represent clients at the UK Intellectual Property Office, the European Patent Office and the European Union Intellectual Property Office. Indeed, British IP attorneys provide excellent value, fighting hard for clients’ interests after years of schooling in the UK legal tradition.

More generally, the UK is – and will remain – open for business. Although there are some questions around the future IP arrangements, several points are clear:

  • First, companies operating in the UK can continue to expect outstanding, professional rights granting services from the UK IPO

  • Secondly, the UK will continue to be a world leader in dispute resolution and in enforcement; and

  • Thirdly, we will continue to lead international IP discussions, including with our counterparts here in China.

Visit deliverables

IP cooperation here in China will continue to be important in the coming years.

In her first statement, our new Prime Minister said:

The UK is a great trading nation, with our science, our arts, our engineering and our creativity respected the world over…across the world people have been watching the choice that Britain has made. [We] would reassure those markets and investors that Britain’s economy is fundamentally strong

This week in China has been busy but rewarding.

Trade marks

Yesterday we held a UK-China workshop on brands, examining the role of trade marks and design in driving economic growth.

There are some famous British brands here in China with me this week. One of these is Whittards of Chelsea. Whittards is an example of how a historical, family brand – developed over centuries – can be a part of our modern, dynamic trade relationship.

We recognise that trade mark systems in the UK and China can be different. And this week we published a new business factsheet on “Bad-faith trade marks in China”, part of a series of materials to help British companies navigate the environment in China and make use of relevant Chinese law.

It is important we work together to ensure investment in brands, and that this investment is protected. This theme will be continued later in this Symposium.


On copyright, today I am delighted to launch a new UK-China Film & TV Toolkit. The Toolkit was developed with the British Film Institute and the Producers Alliance for Cinema and Television. It helps British and Chinese companies confidently share IP as part of the creative process.

I saw an excellent example of a UK-China cultural exchange yesterday evening when Penguin and Chongqing University Press launched a new special edition of Shakespeare’s Midsummer Night’s Dream and the Peony Pavilion by Tang Xianzu. And this is the beautiful scarf that accompanies the new publication.

And continuing the theme of the UK and China working together on IP, I announced yesterday that the UK will be the Country of Honour at a major Copyright Expo in Guangzhou this December. Our work together on copyright is enabling more creative collaborations between our countries.


On enforcement, earlier this week in Shenzhen I witnessed the signing of an agreement between Tencent and UK businesses. The agreement aims to enhance IP protection on the WeChat social network, which you will know is extremely popular, with 800 million active users.

As two highly connected societies, solving IP protection online is a common problem for the UK and China. Our consumers rely on us getting this right.

Chinese companies

All these initiatives show that we are providing support to British business in China, helping IP-intensive trade and investment.

But some of the most memorable parts of my visit have been the meetings I have held with innovative Chinese companies. My delegation and I have visited Tencent as I have mentioned, and also Huawei, Xidian Jietong and Lenovo.

These companies are amongst the largest IP filers in the world, and in Xi’an on Wednesday we launched a new Chinese-language guide to help businesses in China expand overseas.

The guideline updates our advice on obtaining IP protection in the UK and Europe, and also adds new elements including:

  • IP risk analysis and mitigation;

  • Portfolio management; and

  • Best practice in technology commercialisation – or “use of IP” – adapted from the UK for China.

The inclusion of such advanced topics in the guideline I think nicely demonstrates the global nature of Chinese business, supported by policy frameworks such as One Belt One Road.

Moreover, my visit to SOCASAO, Beijing’s creative industries technology showcase with its huge moving screens and virtual reality, showed how Chinese companies are merging creative industries and high-tech sectors. This complements UK excellence in film and TV production. Think James Bond!


Commissioner Shen. Ladies and gentlemen.

It is clear to me that our economies – and our IP systems – are increasingly linked. Chinese companies applied for 5,700 patents at the EPO in 2015, and a total of almost 6,000 trade marks though either the UK national or EUIPO routes.

The UK and China are working together on global IP issues. As trading nations with a global vision, we have a common interest in building efficient global and national IP systems, supporting knowledge, creativity and innovation.

I hope you keep this in mind throughout this Symposium. I look forward to seeing the results of your discussions.

Xie xie!

Source: UK IPO News

The impact of common and civil law on international arbitration

The growth of global trade over the last forty years has been mirrored by the growth of international arbitration as a means for parties to resolve commercial disputes efficiently and cost-effectively. While well-established institutional and ad hoc rules exist to provide the framework for running international disputes (including JAMS), these rules are not sufficient in themselves to cover the varying situations and diverse procedural questions that will arise during the course of the hearing.

The legal representatives of each party quite naturally look to their own substantive legal training under their national system when agreeing how to answer these procedural questions. But in the context of an international dispute these national legal systems can be inappropriate, especially given the diverse backgrounds of parties, lawyers and arbitrators.

International arbitration, therefore, has had to develop its own distinct procedures over the years, influenced heavily by both the common and civil law traditions. It is useful then to examine how common and civil law have helped shape international dispute resolution. And given that arbitrators are likely to come from one or other of the legal traditions, it is also useful for parties and their legal counsel to understand how that is likely to influence the tribunal’s thinking on procedures, evidence and, ultimately, award.  

Source: JAMS ADR

Speech: Baroness Neville-Rolfe’s speech at the IP Forum in Hong Kong

Good morning to you all.

Thank you Ada for the introduction. I am very pleased to be here on a panel with former Justice, Mr Anthony Rogers and Judge Hacon from the UK’s Intellectual Property Enterprise Court.

I agree very much with what Ada has said. IP is one of the most important areas of law for businesses. This morning I have been hearing businesses speak about registering IP rights in Hong Kong.

I am an ex-businesswoman, and as a result I know Hong Kong well. I operated for over 15 years here and in other countries in the Asia-Pacific region. I am delighted to be back and am enjoying the architecture, including a walk around St John’s cathedral last night.

I was recently re-appointed as minister with responsibility for IP. I am passionate about IP, which may be unusual! IP is the lifeblood of industrial success. I have now also been appointed as minister for energy, and I continue to sit in the House of Lords, not only focusing on IP and energy but also other areas of responsibility for our department.

I would like to speak a little about the importance of IP enforcement, and our efforts in the UK to offer proportionate and effective dispute resolution.

EU referendum

But first I would like to briefly touch on the recent referendum on the UK’s membership of the European Union. You will have seen that the British people voted to leave the EU, and that our new Prime Minister is committed to implementing this decision.

The process of negotiation and leaving the EU will take time. There will be no immediate changes. Today, the UK remains a member of the EU and applications for IP rights giving protection in the UK will continue as usual.

The UK’s excellent patent and trade mark attorneys continue to represent clients at the UK Intellectual Property Office, the European Patent Office and the European Union Intellectual Property Office.

Indeed, British IP attorneys provide excellent value, fighting hard for clients’ interests after years of schooling in the UK legal tradition, close in many aspects to Hong Kong’s. I am pleased to be joined today by representatives of the UK’s patent and trade mark attorney professions. And I know from past experience that we will hear from them during the discussion!

More generally, the UK is – and will remain – open for business. However, it is clear that there are many questions around future IP arrangements, not all of which can be answered today. There will inevitably be some uncertainty as the exit process unfolds.

But several points are clear:

  • First, companies operating in the UK can continue to expect outstanding, professional rights granting services from the UK IPO
  • Secondly, the UK will continue to be a world leader in dispute resolution and enforcement and
  • Thirdly, we will continue to lead international IP discussions, including with our counterparts here in Hong Kong.

I look forward to discussing more about these issues in questions.

UK-Hong Kong IP Cooperation

But whatever happens over the coming months in Europe, Hong Kong will remain an important partner for the UK. Our legal and business communities have strong links. And our deep cooperation on IP reflects that.

Exchanges between the UK IPO and Hong Kong IPD have deepened under Ada’s excellent leadership. These have included:

  • Regular meetings between senior trade mark hearings officers
  • Updates on policy priorities, including the introduction of an Original Grant Patent system and IP trading in Hong Kong and
  • Discussions on copyright policy covering collective licensing, enforcement, and limitations and exceptions. I can assure you these are just as controversial in the UK as I think you are finding them here!

On IP crime, today’s hosts, Hong Kong Customs have become a key partner for UK law enforcement agencies, including for the City of London Police IP Crime Unit – PIPCU – a dedicated police unit funded by the UK IPO, which I think is envied elsewhere, and sits alongside police units tackling money laundering, people trafficking and other areas that can have links to IP crime.

For example, Hong Kong Customs and PIPCU are at the forefront of global efforts to combat illegal set-top-box services. There are many reasons why the UK and Hong Kong should work together to tackle this problem:

  • We both have TV and film industries with a global cultural impact, and which generate investment, employment and economic growth
  • Our law enforcement and legal systems have so many elements in common, including similar criminal offences to prosecute illegal broadcasting and copyright piracy and
  • The problem of set-top-boxes and the offences they facilitate is in fact global in scale. I know industry groups such as CASBAA here in Hong Kong have led analysis of the international crime syndicates behind this problem.

Also with Hong Kong Customs, we are exchanging information on:

  • The UK’s Infringing Website List which helps stop mainstream advertising appearing on pirate websites, cutting off revenue and reducing credibility and
  • Cross-border anti-counterfeiting. We want to understand how the business of international counterfeiting operates, and develop law enforcement responses to stop the fakes which threaten our economy and the safety of consumers. This is a serious problem in East Asia, not just in China and Hong Kong, but also stretching down in to Southeast Asia.

IP dispute resolution

These efforts to tackle IP crime – including the creation and funding of PIPCU – are part of a broader effort by the UK Government to provide a world-leading IP enforcement and dispute resolution framework.

An effective framework should cover both the criminal side and civil disputes, and I believe we should also offer a range of alternative dispute resolution options.

We need to build on previous successes, including working with international partners, like Hong Kong, to tackle global threats.

We recently published a strategy document called “IP Enforcement 2020”. It sets out how the UK intends to remain a world leader in IP enforcement, supporting innovation, protecting creativity, and trying to do that in a joined up way.

Our core strategic ambitions are to ensure that:

  • UK companies – including small businesses, which are very important to our economy and around the world – are more confident in operating internationally as a result of better IP protection
  • Rights-owners need to have access to proportionate and effective mechanisms to resolve disputes and
  • Consumers need to be educated in the benefits of respecting IP rights. Enforcement and education go hand-in-hand. We’ve done a lot on this and we can exchange examples of best-practice. I know that there are lots of good examples here in Asia too.

This emphasis on proportionality and small business is important. Enforcing IP rights can be expensive. A dispute resolution system that prices out small companies (and remember how important they are to economic growth) would mean that large parts of our economy are denied access-to-justice and rule-of-law.

The UK has our share of history and innovation. A 2009 review by another distinguished judge, Lord Justice Jackson, into civil litigation costs led to reforms to our IP dispute resolution system. These changes included boosting the IPO’s mediation service, plugging a gap in the ADR offerings of the private sector with a specialist, SME-friendly mediation service.

But perhaps the most high-profile change to the IP system following the Jackson Review were reforms to the Patents County Court. That is now renamed the Intellectual Property Enterprise Court, or “IPEC”, and I visited it recently.

Judge Hacon will talk about the IPEC shortly so I won’t steal his thunder. But I will note that we are proud of the IPEC in the UK. Its streamlined procedures offer the best of the British legal tradition – evidence disclosure, witness cross-examination, adversarial lawyers – but with cases managed to keep costs in proportion to the size of the dispute.

Of course, in a diverse, globally-connected economy, there are still larger disputes that rightly belong to the Patents Court of the High Court. But the IPEC offers an alternative for businesses and individuals with smaller – but no less important – disputes.

I understand that some of the problems IPEC was reformed to solve may also be present here in Hong Kong. In many ways, our high-quality, common law justice systems can become a victim of their own success, developing expertise and complexity that unfortunately takes justice out of reach of smaller litigants. I believe strongly that we must maintain quality – which is essential – whilst at the same offering access-to-justice for all our stakeholders.

I can assure you that the demand is out there. The IPEC is now one of the busiest IP courts in Europe, meaning Judge Hacon needs to give up part of his summer holiday to make international visits such as this one. There is certainly no time for visits during court time!

But as IPEC demand has soared, we have not seen a corresponding dip in IP case filings at the High Court. This is reassuring to our policy-makers, to our judges and to our rights holders, and I suspect for many of you gathered here today.


So to close:

  • Firstly, post referendum, the UK remains open for business. I see it as an opportunity to do more and to work together. There are some areas of uncertainty over our future IP system, but we working with our stakeholders to make sure the UK IP system remains one of the best in the world
  • Secondly, cooperation with Hong Kong on IP will remain a priority for the UK. IPO-IPD discussions, law enforcement and judicial exchanges are set to continue and
  • Thirdly, the UK’s IP enforcement framework is designed to be proportionate and effective, offering (to reference an iconic British brand) “Rolls-Royce” justice where this is appropriate, but also providing lower-cost options to help smaller businesses.

Thank you for listening. I look forward to listening to the other speakers and to what will no doubt be a lively discussion.

Source: UK IPO News

Discipline upheld for employee’s refusal to participate in meeting without union rep where no reasonable basis to fear discipline

Arbitrator Sharon Gallagher has upheld discipline for an employee who refused to participate in a meeting with her supervisor without the presence of a union representative where the arbitrator concluded that the employee had no reasonable basis to fear discipline could result from the meeting.

Grievant was employed as a social worker by Wabasha County, MN. She had a somewhat difficult history with her supervisors but the primary incident in dispute arose from an email request from grievant’s supervisor requesting that she meet with him. After an exchange of messages about the subject of the meeting grievant responded:

    Because of how the last conversation with you about this topic ended I will bring a union representative as a witness in this meeting.

Thereafter, grievant exchanged email messages with the County’s HR Director, repeating her belief that the meeting could result in discipline and her request for union representation at the meeting. At the HR Director’s request, grievant called her. Grievant summarized that conversation is a later memo:

I placed a phone call to Krissa Bedsted (sic) from the office of Tammy Loretz. I stated that I had Tammy Loretz as my union representative and I was invoking my Weingarten Rights as I believed the conversation could lead to disciplinary action. Krissa stated that it was not appropriate to have a union representative and I was not able to invoke my Weingarten Rights. …  Krissa stated that I would not be written up, that she could guarantee the conversation would not lead to disciplinary action. …

Grievant indicated that “under duress” she agreed to meet with her supervisor without a union representative.

A meeting was scheduled but grievant again declined to meet without her union representative.

Several days later grievant’s supervisor again emailed her, scheduling a new meeting and advising grievant that “this is not a disciplinary meeting, therefore having a union representative is not warranted.” Grievant appeared at the scheduled meeting with a union representative and refused to proceed without her presence. As a result of this (and some previous issues) the County issued a letter of reprimand to grievant.

When the dispute was submitted to arbitration, Arbitrator Gallagher rejected the County’s reliance on the earlier issues but upheld discipline for the refusal to participate in the schedule meeting as directed. Arbitrator Gallagher reduced the letter of reprimand to a verbal warning.

After a review of relevant case law, Arbitrator Gallagher noted that under Weingarten an employee’s belief that discipline may result from a meeting must be “objectively reasonable.” Concluding that this was not the case here, the Arbitrator observed:

It is of prime  importance that [grievant’s] subsequent request for union representation came after … she had received Bedsted’s verbal assurance and Simonett’s written assurance that no discipline would result from a meeting with Simonett. The question arises whether[grievant] could reasonably believe that the April 23rd meeting with Simonett might result in her being disciplined despite Simonett’s e-mail assurance and HR Director Bedsted’s verbal assurance that the meeting would not result in discipline. In my view, [grievant’s] belief that she would be disciplined as a result of the April 23rd meeting with Simonett was unreasonable based on the facts of the record here. 

Finding that grievant’s refusal to participate in the meeting constituted unprotected insubordination the Arbitrator concluded:

As is clear form the cases listed and described above, an employer may discipline an employee for insubordination if the employee unreasonably and repeatedly insists on union representation in a non-disciplinary meeting. Note that the magic words, “I refuse to meet with my supervisor,” are not required for arbitrators and the Board to find discipline for insubordination is warranted. [Grievant’s] showing up with Steward Loretz on April 23rd and handing Simonett the Weingarten  card when she had been told verbally and in writing that no discipline would come out of the meeting and nonunion representative was called for, constituted clear insubordination. [Grievant] had been ordered to attend without representation by both Bedsted and Simonett and she chose to defy those orders.

Arbitrator Gallagher’s award can be found here.

Source: ADR

Research and analysis: Intellectual property awareness survey: Engaged businesses 2015

The aim of the survey is to give an indication of the state of Intellectual Property (IP) awareness in the UK across IP engaged businesses.

Highlights from the report show:

  • 42% of IP engaged respondents check they are not infringing other people’s IP. The most popular IP management activity amongst respondents
  • 28% of firms in the IP engaged community provide staff training on IP. This is 10% for firms responding to the main survey
  • 66% of the IP engaged respondents had protected some sort of IP (either through a single right or a combination). This compares with 52% for respondents in the wider business population

Source: UK IPO News

News story: Enhancements to designs services

New style Journal

Our existing Journal showcases registered designs and is updated every 3 weeks.

Checking the designs journal

Our customers have requested prompt publication of their registered designs and in response to demand we have designed a new style Journal that does exactly that; displays designs that were registered 24 hours previously.

Other changes include being able to select to view registered designs for a specific year and month.

View the designs journal

Please note:

If you have bookmarked any links to the current Journal you will be redirected to the new style Journal from 5 September 2016.

New style search by design number

We have made significant changes to the existing search page following customer feedback.

We have removed the option to search via a proprietor or Locarno and users choosing to search via these options will be directed to the EUIPO search service DesignView. In addition to doing an advanced search of UK registrations, DesignView allows customers to search EU and worldwide offices.

Our new style search service allows you to search using a design number only.

Find a registered design

Once you enter a design number a new ‘case details’ page will be displayed.

Registered design

Please note:

If you have bookmarked any of the existing search pages you will be redirected to the following:

  • search by number – new style search page
  • search by proprietor – DesignView
  • search by Locarno – DesignView

Source: UK IPO News

News story: GB patents available on Patent Scope

The Intellectual Property Office has for some time been exploring ways of extending the availability of our collection of patent specifications.

We are pleased to announce that in cooperation with the World Intellectual Property Organisation in Geneva, the descriptions and claims of all post 1900 GB published patent applications and granted patents are now available on Patent Scope in a searchable text format.

Additionally, the European Patent Office have been gradually adding batches of historical GB granted specifications on to Espacenet. It is anticipated that the final batch of GB granted specifications will be uploaded on to the database by the end of August 2016.

Source: UK IPO News

Eighth Circuit on the law of the shop and the scope of the issue to be decided

The Eight Circuit recently issued its decision on the NFL’s appeal of the District Court’s decision vacating the Adrian Peterson arbitration award. The earlier proceedings are discussed at Adrian Peterson, arbitration and the law of the shop. As noted there, the District Court vacated the award of the arbitrator upholding the six game suspension of Peterson. The court found that the award ignored the “law of the shop” because the arbitrator allegedly ignored an earlier award involving Ray Rice which it believed limited the allowable suspension to two games. The court also found that the arbitrator had exceeded his authority because he “strayed beyond the issues submitted by the NFLPA.”

The Circuit overturned both conclusions

Initially it rejected the claim that the arbitrator exceeded his authority when he allegedly  retroactively applied a “new” disciplinary policy,contrary to the “law of the shop.” The Court observed:

An arbitrator acts within his authority as long as he is arguably construing or applying the contract, even if a court disagrees with the arbitrator’s construction or application. Misco, 484 U.S. at 38. The same holds true for the law of the shop: as long as the arbitrator is arguably construing or applying arbitral precedents, a court’s disagreement with the arbitrator’s application of precedent is not sufficient grounds to vacate an arbitration decision.

The Circuit Court found that the arbitrator analyzed the Union’s claims and the prior awards the Union maintained supported its position. While he disagreed with the Union’s position, he was acting within his authority in reaching his conclusion.

On the second point the Court noted:

…the Players Association contends that the arbitrator exceeded his authority by altering the issues presented for decision. It argues that the arbitrator was limited to adjudicating “`the pure legal issue’ of whether the New Policy could be applied retroactively. The district court agreed, concluding that the arbitrator “strayed beyond the issues submitted by the NLFPA.”

…[i]t is true that “[w]hen two parties submit an issue to arbitration, it confers authority upon the arbitrator to decide that issue.” Local 238 Int’l Bhd. of Teamsters v. Cargill, Inc., 66 F.3d 988, 990-91 (8th Cir. 1995) (per curiam) (first emphasis added). But the parties here did not stipulate to the issues for arbitration. The scope of the arbitrator’s authority, therefore, was itself a question delegated to the arbitrator. W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 765 (1983). “It is appropriate for the arbitrator to decide just what the issue was that was submitted to it and argued by the parties.” 

The Court determined that “it is not the exclusive prerogative of the party seeking arbitration to define the issue for arbitration.” It found that the NFL was free to challenge the premise contained within the Union’s proposed issue, i.e. that the policy was a new one authorizing discipline previously unavailable. 

Finally, the Court addressed two claims that the District Court found unnecessary to consider. It rejected the claim the Arbitrator Henderson was “evidently partial,” and that the arbitration was “fundamentally unfair.”

Source: ADR