United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the Court on plaintiff's motion for a temporary restraining order or a preliminary injunction, Filing No. 12. Defendants filed a motion to stay or dismiss, contending this case should be submitted to federal mediation. Filing No. 15. Defendants also filed a motion to compel arbitration. Filing No. 23. The plaintiff filed a Complaint under 42 U.S.C. § 1983 against defendants Michael Robinson, Washington County Sheriff, and Washington County, Nebraska. Filing No. 1. Plaintiff contends the defendants violated his First and Fourteenth Amendment rights to the United States Constitution. The Court conducted a hearing on these motions and received evidence from the plaintiff and the defendants. See Filing Nos. 34 and 35.
The Complaint states that the defendants employed the plaintiff as a deputy for the Washington County Sheriff's Office for 13 years, and that defendant Michael Robinson served as the Washington County Sheriff. Filing No. 1, at ¶¶ 4, 5. The Complaint alleges that defendants terminated the plaintiff in retaliation for engaging in protected speech Id. at ¶¶ 11-13, that defendant Robinson made stigmatizing remarks against the plaintiff, and that the defendants have failed to follow proper arbitration procedures and have denied the plaintiff an opportunity to clear his name before an impartial tribunal. Id. at ¶¶ 15-16. The speech involved Donald Morgan's campaign against defendant Michael Robinson who both ran for election for the position of Washington County Sheriff. Robinson won the primary election on May 13, 2014, and on May 18, 2014, defendants terminated Morgan from the Washington County Sheriff's Department. Morgan claims defendants fired him, because of statements he made during the election.
The plaintiff is a participant in the Local Collective Bargaining Agreement (Agreement). Filing No. 14, Ex. A, at Page ID No. 37. There is a binding arbitration clause in the Agreement. However, plaintiff contends it should not be enforced at this time because (1) the Agreement does not contain the required statutory language near the signature block noting that arbitration is required (Neb. Rev. Stat. § 25-2602.02); and (2) the Sheriff is both a supervisor as well as a member of the Local Union, creating a conflict of interest for any arbitration. Plaintiff asks the Court to grant the injunction staying enforcement of the arbitration clause. Plaintiff argues defendants violated his right to due process, as the disciplinary action report made stigmatizing remarks so as to defame his character. He further contends that he made a written demand for arbitration which in accordance with Article 5, Section 7 of the 2012-2016 Labor Contract required arbitration within 10 days to the County and that never occurred. Thus, argues plaintiff, defendants breached the contract. Defendants, the sheriff supervisor and the county, ask the Court to stay this case and order arbitration.
Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute to which he has not agreed to submit. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) ( quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960). However, once parties have agreed to a contract containing an arbitration clause, courts have "long recognized and enforced a liberal federal policy favoring arbitration agreements.'" Id. ( quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)).
"The Federal Arbitration Act, 9 U.S.C. § 4, states that a party aggrieved by the failure of another to arbitrate under a written agreement may petition the district court for an order compelling arbitration." Art Etc. LLC v. Angel Gifts, Inc., 686 F.3d 654, 656 (8th Cir. 2012). "[A]rbitration is simply a matter of contract between the parties; it is a way to resolve those disputes-but only those disputes-that the parties have agreed to submit to arbitration." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995). If a valid arbitration agreement exists and the dispute falls within the scope of that agreement, a dispute must be submitted to arbitration. See Lyster v. Ryan's Family Steak Houses, Inc., 239 F.3d 943, 946 (8th Cir. 2001).
The issue of whether the parties have a valid arbitration agreement at all is a "gateway matter" that requires judicial resolution. Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452 (2003) (plurality opinion); see Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) ("[W]hether the parties have agreed to submit a particular dispute to arbitration is typically an issue for judicial determination.") (internal citation omitted); see also Barker v. Golf U.S.A., Inc., 154 F.3d 788, 791 (8th Cir. 1998) (stating a court must decide whether [an] agreement to arbitrate is valid). The Supreme Court noted the arbitrability determination depends on whether the parties "agree[d] to submit the arbitrability question itself to arbitration." Kaplan, 514 U.S. at 943. "[W]hen courts decide whether a party has agreed that arbitrators should decide arbitrability: Courts should not assume that the parties agreed to arbitrate arbitrability unless there is clea[r] and unmistakabl[e]' evidence that they did so." Kaplan, 514 U.S. at 944 (alterations in original) (citing AT & T Techs., Inc. v. Comm's Workers of Am., 475 U.S. 643, 649 (1986)). "Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator." AT & T Techs., 475 U.S. at 649.
"The Federal Arbitration Act create[s] a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Donaldson Co., Inc. v. Burroughs Diesel, Inc., 581 F.3d 726, 731 (8th Cir. 2009) (internal citation omitted). However "[w]hen deciding whether the parties agreed to arbitrate a certain matter... courts generally... should apply ordinary state-law principles that govern the formation of contracts." Hudson v. ConAgra Poultry Co., 484 F.3d 496, 500 (8th Cir. 2007) (citing Kaplan, 514 U.S. at 944). "Thus, state contract law governs the threshold question of whether an enforceable arbitration agreement exists between litigants; if an enforceable agreement exists, the federal substantive law of arbitrability governs whether the litigants' dispute falls within the scope of the arbitration agreement." Donaldson Co., 581 F.3d at 731.
"To create a contract, there must be both an offer and an acceptance; there must also be a meeting of the minds or a binding mutual understanding between the parties to the contract." Gerhold Concrete Co., Inc. v. St. Paul Fire & Marine Ins. Co., 695 N.W.2d 665, 672 (Neb. 2005); "A fundamental and indispensable basis of any enforceable agreement is that there be a meeting of the minds of the parties as to the essential terms and conditions of the proposed contract." Peters v. Halligan, 152 N.W.2d 103, 106 (Neb. 1967).
If an agreement to arbitrate is present, courts, not arbitrators, determine the question of arbitrability, unless the parties unambiguously provide otherwise in their contract. Howsam, 537 U.S. at 83; International Bhd. of Elec. Workers v. GKN Aerospace N. Am., Inc., 431 F.3d 624, 627 (8th Cir. 2005); John Wiley & Sons v. Livingston, 376 U.S. 543, 547 (1964) ("[t]he duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty"); AT & T Techs., Inc. v. Comm's Workers, 475 U.S. 643, 649 (1986).
The court applies the principles derived from a series of cases known as the Steelworkers Trilogy to determine whether a dispute is arbitrable. See United Steelworkers v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).
Under the Steelworkers Trilogy, (1) arbitration is a matter of contract and may not be ordered unless the parties agreed to submit the dispute to arbitration; (2) unless the parties provide otherwise, courts decide the issue of whether the parties agreed to arbitrate; (3) courts cannot weigh the merits of the grievance in determining whether the claim is subject to arbitration; and (4) when an arbitration clause exists in a contract, there is a presumption of arbitrability unless it is clear that the arbitration clause is not susceptible of an interpretation that ...