Virgin Islands Water & Power Authority and Technical Employees Union, Inc.

• Court: Superior Court of The Virgin Islands
• Decided: March 21, 2022
• Docket: SX-2016-CV-422
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

VIRGIN ISLANDS WATER AND POWER ’ AUTHORITY Case No 8X 2016 CV 00422 Plaintiff

v ACTION TO VACATE ARBITRATION l AWARD VIWAPA PROFESSIONAL AND TECHNICAL EMPLOYEES UNION INC i 2022 VI SUPER 38 Defendant

MEMORANDUM OPINION

1 l THIS MATTER comes before the Count on Defendant 5 Motion to Dismiss filed August 26, 2016 (herein “Defendant 9 First Motion f0t Summary Judgment ) Plaintiff filed its Opposition on September [5, 2016 Defendant did not reply By Order entered December 8 2017 pursuant to V l R Civ P 12(d) the Court converted Defendant’s Motion to Dismiss to a motion for summary judgment and gave Plaintiff 21 days to supplement its Opposition Plaintiff filed its Supplemental Opposition on January 2 2018, which included a Cross motion for Summary Judgment Defendant did not reply to Plaintiff’s Supplemental Opposition and did not respond to the Cross motion for Summary Judgment Without seeking leave of Court Defendant filed a second Motion for Summary Judgment on September 20 2018 (hereinafter Defendant’s Second Motion for Summary Judgment”) Plaintiff filed a Response to this Motion on October 4, 2018

1] 2 After considering the arguments of the parties, and for the reasons stated herein the Court will strike Defendant s Second Motion for Summary Judgment The Court also finds no reason to disturb the Arbitrator's Award and will grant Defendant’s First Motion for Summary Judgment as to all Counts and will deny Plaintiff’s Cross motion for Summary Judgment

BACKGROUND FACTS

1[ 3 A collective bargaining agreement ( CBA ) existed between the parties at all times relevant to this case Arbitration Award at 1 During April 2013 a notice ofjob vacancy was listed for the position of Coordinator Materials and Supplies, in the Electrical Distribution Department in the Transmission and Distribution Division of Virgin Islands Water and Power Authority (“VIWAPA or “Authority’ or “Plaintiff") Id at 5 Both Rolston Jones ( ‘Jones ) and Leonard VIWAPA v VIWAPA Prof I & Technical Emps Union Inc Case No SX 2016 CV 00422 Memorandum Opinion Page 3 of II 2022 VI SUPER 38

til 7 Arbitration was held February 26, 2016 The Arbitrator issued his Decision on June 3, 2016 In the Award the Arbitrator found that any delay in the Union seeking arbitration was due to VIWAPA not issuing a written decision after the Step 3 meeting with the Executive Director, and therefore should not affect the arbitrability of the issue Arbitration Award at 10

‘II 8 As to the merits of grievance the Award states that ‘ [i]n most cases a [CBA] with seniority selection provisions, under which qualifications can also be considered, a promotion decision by the employer under its management right clause will be sustained However, if the selection has been unfairly obtained it can be overturned Id at l l The Award found that the selection process in this case was “inherently discriminate: y because one of the judges on the selection panel had already expressed a preference for a specific candidate and that “Jones’ qualifications appear to have been ignored in this case Id at 12 The Award granted the grievance and found that the appropriate remedy was to award Jones the position of Coordinator Materials and Supplies for the Electrical Department Id Plaintiff filed the present Petition to Vacate Arbitration Award (Complaint) on July 28 2016

LEGAL STANDARDS

Filings

11 9 Per Virgin Islands Rule of Civil Procedure 6 l(c) Only a motion a response in opposition and a reply may be served on other parties and filed with the court, further response or reply may be made Only by leave of court obtained before filing Parties may be sanctioned for violation of this limitation In the past courts have struck filings that have violated this rule See eg Ayala v World Fresh Mk! LLC 2021 V1 SUPER ISU ‘][15 (V1 Super 2021) Gov tofthe U 8 VI v ServzceMasrei Co LLC N0 SX 16 CV 700 2018 WL 4627266 at *8 (V I Stipen- Sept 26 2018) Courts, however, are not obligated to strike nonconforming filings See U 8 VI Econ Dev .4th v Hypolzte 2019 VI SUPER 4U ‘lll3 (V 1 Super 2019) If the patties can continuoust bombatd the tiial cowl with additional aigumcnts submitted without leave or tequcst f0t leave, briefing will nevet come to an end SerwceMaster Co LLC 2018 WL 4627266, at *8

Summary Judgment

‘][ 10 Per Virgin Islands Rule of Civil Procedure 56(a) The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movement is entitled to judgment as a matter of law The Virgin Islands summary judgment rule mirrors the well known summary judgment provision applicable in most American jurisdictions ’ Advisory VIWAPA v VIWAPA Prof'I & Technical Emps Union Inc Case No SX 20l6 CV 00422 Memorandum Opinion Page 2 of 11 2022 VI SUPER 38

Thomas (“Thomas ) among other candidates, were interviewed by a panel for the open position Id In December 2013 Thomas was selected as the most qualified candidate Id at 6

(ll 4 On December 9 2013 Jones filed a grievance under the CBA alleging violations of both the CBA and the Perqonnel Policies and Procedures Manual Id at 7 This grievance alleged that Jones should have been found to be better qualified for the open position than Thomas Id at 7 8 On December 23, 2013 V IWAPA responded to the grievance by denying it Petition at 3 On January 9 2014, the Virgin Isiands Water and Power Authority Professional and Technical Employees Union (‘Union or Defendant ) appealed VIWAPA s denial of grievance to Step 3 under the CBA s grievance process Arbitration Award at 7

‘11 5 Under Step 3 of the CBA grievance process the parties are to meet with the Executive DiiectOi who ‘[w]ithin the ten (10) workdays after this meeting has been held shall advise the President of [the Union] the grievant and the Grievance Committee Chairperson in writing of his Decision CBA Section 6 3 ’ A meeting was held with the Executive Director in January 2014 Petition at 3 The Executive Director did not issue a decision after this meeting Arbitration Award at 7

‘][ 6 Per Section 6 7 0f the CBA if the grievance remains unsettled aftet the Executive Director s decision in Step 3, the Union may within 10 days of the receipt of the Executive Director‘s Decision appeal the matter to either mediation or arbitration Despite the Executive Director failing to issue the decision contemplated in Step 3 of the grievance process, VIWAPA asserts that the matter became appealabie !0 days after the Executive Director should have issued a decision Arbitration Award at 4 The CBA provides If the Authority fails to process its response to a grievance within the time provided the Union shall have the right of automatic appeal to mediation or arbitration ” CBA Section 6 6 Therefore since the Executive Director had 10 days to issue a decision the matter became appealable to arbitration when he failed to meet that deadline The Union, however did not invoke arbitration until March 5 2015 Petition at 4 2

' At one point the Arbitration Award refers to a Step Two meeting [with] the Executive Director ' see Atbitration Award at 8 This mention of Step Two appears to be in error as it is Step Three of the Grievance Process in which the parties meet with the Executive Director CBA Section 6 3, C Later the Award appropriately references Step Three as the step in which the grievant meets with the Executive Director see Arbitration Award at 10 Either way this does not impact the Court 5 decision 2 The Arbitration Award states that ‘The Union asked for arbitration in January 2014 Arbitration Award at 7 This to be in error since the Award states that both parties agree there was a 14 month delay between the meeting with the Executive Director and Defendant seeking arbitration id at 8. and also that the Union did not file its initial grievance until December 9, 2013 Regardless. this does not impact the Court 5 decision VIWAPA v VlWAPA Prof I & Techmcal Emps Unton Inc Case No SX 2016 CV 00422 Memorandum Opinion Page 4 of 11 2022 VI SUPER 38

Committee on Rules Comment to V I R Civ P 56 ‘ A movant is entitled to summary judgment if there is no triable issue of material fact ” Baszc Servs Inc v Gov (of the V I 71 V I 652, 658 2019 V121 118 (V I 2019) (citing Rymer v Kmart Corp 68 V I 571 575 (V 1 2018)) Once the moving party has identified the portions of the record that demonstrate no issue of material fact the burden shifts to the non moving party to present affirmative evidence from which ajury might reasonably return a verdict in his favor Rymer, 68 V I at 576 (quoting Chapman v Cornwall 58 V I 431 436 (V I 2013)) ‘Tlte non moving party may not rest upon mere allegations [butt must present actual evidence showing a genuine issue for trial '” Id at 575 (quoting thltams ‘I Umred Corp 50 V I 191 194 (V I 2008)) (brackets in original) A court considering a motion for summary judgment should view evidence in the light most favorable to the non moving party Btmc Servs Inc 71 V I at 659 (citing Machado v Yacht Haven U S V! LLC 61 V1 373 379 (V I 2014))

Review of Arbitration Awards

‘11 l 1 “[Tlriat Comte play ‘only a limited role’ when reviewing an arbitration award, in that tria1 courts are not authorized to reconsider the merits of an award eVen though the parties may allege that the award rests on errors of fact or on misintetpretation of the contract because they ‘do not sit to hear claims of factual or legal error by an arbitrator as an appellate count does in reviewing decisions of lower courts Gov I of the VI Dept of Educ v St Thomas/Sr John Educ Adm :5 Act n Local 10} 67 V l 623 629 30 (V I 2017) (citing Untied Paperworkers In! I Unton v cho Inc 484 U S 29 (1987)) (emphasis added) ‘[I]n order to ensure that parties who bargain for binding arbitration receive the benefit of their bargain. [the Supreme Court of Virgin Islands]conc1ude[d] that the Superior Court may only vacate an arbitrators award if

(I) the arbitrator exceeded his or her authority in rendering the award (which may include ignoring limits in the arbitration agreement itself on issues to be arbitrated or remedies the parties agreed to make available), (2) the award was the product of fraud, partiality or malfeasance on behalf of the parties or the arbitrator or if the award was predicated upon a mistake flowing from such conduct, or (3) the arbitrator manifestly disregards the law Gov (ofthe VI Dept ofEduc 67 V I 623 at 639 40 (formatted for emphasis and clarity) 1

3 As to the applicability ofthe scope ofjudicial review set out in the Federal Arbitration Act the Supreme Court held we elect to follow those jurisdictions that have conducted that section 10 of the FAA does not preempt local law in proceedings instituted in local courts, which does not mean however that the parties may not contract to have the FAA govern any judicia! review of an arbitrator 5 award Cat toftlte VI Dept ofEduc . 67 V I at 632 [n this case. there appears to have been no election to apply FAA standards ofjudicial review and. therefore applicable local law governs Although both parties cite to federal case law to establish the Court 8 jurisdiction over this arbitral matter VlWAPA v VIWAPA Prof l & Technical Emps Union Inc Case No SK 2016 CV-00422 Memorandum Opinion Page 5 of 11 2022 VI SUPER 38

‘1 12 The fact that a party or even a reviewing court merely disagrees with how an arbitrator intetprets a contract is not sufficient grounds to vacate the arbitrator s decision Gov I of the VI Dept of Educ 67 V I at 641 The arbitrator exceeds his authority if his award goes beyond the “ the scope and authority conferred by the contract ”’ Gov t of the V] v Amencan Fed n of Teachels Local I 826 on behalf of Soc Worker; 9 & P5) chologtsts 2020 VI SUPER 96U ?[24 (V I Super 2020) (citing Gov loftlze VI Dept ofEduc 67 VI at 623)‘ see VI Port Auth v United SteelworkerstUSW) Local U1110119489 71 VI 412 424 2019 VISUPER 131 ‘][22 (VI Super 2019) Mustafa v Amore St lolm LLC 58 V I 74 80 (V I Super Mar 4 2013)) As a coun cannot reconsider the arbitrate: s interpretation of the contract an atbilrator does not exceed his authority as long as he d aws “the essence of his decision from that agreement Untied Steelworkus ( USW) Local Umon 9489, 71 V I at 424 (citing Mam) Ledge Umpires Ass n v Am League of P) of 1 Baseball Clubs 357 F 3d 272 279 (3d Cir 2004)) An award draws its essence from [the contract] if its intetpretation can m (my ratzonal way be derived from the agreement, viewed in Iighl of its language its context, and any other indicia of the parties intention Id (citing Brerzmood Med Assam V UMW 396 F 3d 237 241 (3d Cir 2005)) (emphasis in original) (internal quotation marks omitted), see Amerzcan Fed n of Teachers Lora! 1826 on behalf of Soc Workers & Psychologists 2020 VI SUPER 96U 1124 The Virgin Islands Supreme Court has explained ‘manifest d.sregard as follows The error must have been obvious and capable of being readin and instantly perceived by the average person qualified to serve as an arbitrator Moreover the term disregard implies that the arbitrator appreciates the existence of a clearly governing legal principat but decides to ignore or pay no attention to it Judicial inquiry under the ‘manifest disregard’ standard is therefore extremely limited The governing law alleged to have been ignored by the arbitrators must be well defined explicit and clearly applicable We are not at liberty to set aside an arbitration panel 3 award because of an arguable difference regarding the meaning or applicability of laws urged upon it Tempcorp Holdings Inc v Harris 73 VI 638 644 2020 VI 20 ‘1110(VI 2020) (quoting Merrill Lynch Pierce Fenner & Smuh Inc v Bobker 808 F2d 930 (2d Cir 1986)) (other citations omitted) (internal quotation marks omitted) (omission in original) ‘[T]here is universal agreement that manifest disregard of the law must mean something more than erroneous interpretation or misunderstanding of the law Id at 643 (internal citations omitted)

‘arbilration tn the Virgin Islands is rot governed by statute so the decisions and application of federal tales represents only persuasive authority and are not binding on this Court' Gov I of the V! v American Fed n of Teachers Local 1826 on behalfofSoc Workers & Psyhologasls 2020 VI SUPER 96U ‘19 (V I Super 2020) (citing Gm toflhe VI Dept ofEduc 67 VI at 633) VIWAPA v VIWAPA Prof! & Technical Emps Unton Inc Case No 8X 2016 CV 00422 Memorandum Opinion Page 6 of ll 2022 VI SUPER 38

DISCUSSION

‘1[ 13 Resolving which filings are properly before the Court is a necessary prerequisite to addressing the merits as it affects which arguments have been presented See generally SermceMaster Co 1 LC 2018 WL 4627266 at *2 (The court should consider ancillary motions/issucs first before considering dispositive motions on the merits )

(H 14 In this case Defendant did not request and the Court did not grant Defendant leave to file its Second Motion for Summary Judgment Therefoze that filing was improper under V I R Civ P 6 1(c) Nonetheiess a review of Defendant 3 Second Motion reveals it covers many of the same topicslarguments as the First Motion (1e , freedom to nontract, limited review of arbitration decisions inapplit ability of the doctrine of laches 4 and whether the Arbitrator acted within his authority) As such even if the Court were to considc: the Second Motion it would not impact the Court s analysis in this matter Therefore the Court finds no reason why Defendant without seeking leave to do so should be allowed to bolste: and clarify its arguments more than a year after its original Motion and after motion practice has been completed Had Defendant wished to clarify or supplement its arguments it could have sought leave to refile when its Motion to Dismiss was converted to a motion for summary judgment in 2017 Alternatively Defendant could have filed a reply to either Plaintiff’s original or supplemental opposition which it did not The Court finds it appropriate to sanction Defendant for lack of compliance with the applicable procedural rule by striking its Second Motion for Summary Judgment and will only consider the merits of its arguments as presented in the First Motion for Summary Judgment

1! 15 With the filings clarified the Court addresses on their merits Defendant 5 First Motion for Summary Judgment and Plaintiff’s Cross motion for Summary Judgment 5 considering the arguments in turn as they apply to each Count presented in the Petition to Vacate Arbitration Award (Complaint)

A COUNT ONE Grievance was Not Arbitrable

‘1 16 Count One of Plaintiff’s Complaint alleges that this grievance was not arbitrable because the Union delayed 14 months before seeking arbitration and therefore the Arbitrator lacked

‘ The Second Motion for Summary Judgment lefers to lashes ’ Wthh is deemed to be a typographical error 5 Defendant s Motion was originally filed as a motion to dismiss such that its presentation of some arguments might include language inconsistent with the post conversion procedural posture The merits analysis is unaffected as the Court 5 review on the substance of Defendant s arguments is not determined by the procedural posture VIWAPA v VIWAPA Prof I & Technical Emps Unton Inc Case No SX 2016 CV 00422 Memorandum Opinion Page 7 of II 2022 VI SUPER 38

authority to impose the award Complaint at 6 7 However Defendant notes that public policy supports arbitration in labor disputes and that any doubts regarding applicability of an arbitration agreement should be resolved in favor of coverage Def First Mot for Summ J at 8 (citing GramIe Rock Co V In! I Bhd of Teamsters 1308 Ct 2847 2850 2866 (2010))

‘11 17 Issues related to time limitations are a matter of procedural arbitrability ” which are clearly for the arbitrate: to decide thus. the Arbitrator did not exceed his authority by deciding th procedural arbitrability issue of the delay before seeking arbitration in favor of permitting the arbitration to proceed See Urmed Steelworkers (USW), Local Union 9489 71 V I at 422 24 Of the two categories of arbitrability procedural arbitrability" and “substantive arbitrability ’ procedural arbitrabilitv includes the satisfaction of prerequisites such as time limits laches estOppel and other conditions precedent to an obligation to arbitration Id at 422 (quoting BG Group PLC v Republu ofArg 572 U S 25 3S (2014)) (internal quotation marks omitted) And ‘[o]nce the parties have agreed to submit a dispute to arbitration, it is the arbitrator who decides matters concerning procedural arbitrability ” Id (citing John Wiley & Sons Inc v lemgsttm 376 U S 543 558 (1964)) Thus, as this issue of timeliness was clearly for the Arbitrator to decide he could not have exceeded his authOtit y by deciding that the matter was arbitrable See Id at 423 24 Further, even if this decision were based upon a misinterpretation of the contract, such a determination is beyond the authority of this Court on this review See Gov I of the VI Dept of Educ 67 VI at 641 As such, the Court will grant Defendant’s First Motion for Summary Judgment as to Count One

B COUNT TWO Grievance is Barred by the Doctrine of Laches

1118 Count Two alleges that the grievance should not have been allowed to proceed to arbitration because it was barred by the doctrine of laches Complaint at 7 8 1n suppon of this argument VIWAPA states that by the time arbitration was sought it had already expended considerable resources in training Thomas for the position thus “the Union 5 failure to act in a timely manner to challenge the selection results in a waste of VIWAPA’s resources and impairs the grievance process by undermining the finality of decisions ’ Complaint at 7 Defendant argues that the doctrine of latches does not apply here and is available only under “extraordinary circumstances ” Def First Mot for Summ J at 9 Additionally, Defendant argues that even if laches were to apply, that would have been a procedural matter for the Arbitrator to decide Id

(ll 19 For the reasons stated in relation to Count One the Court finds that issues related the doctrine of laches are issues of procedural arbitrability and therefore, within the authority of the Arbitrator to decide See United Steelworkers (USW) local Uman 9489 71 V1 at 422 24 VIWAPA v VIWAPA Prof I & Technical Emps Unton Inc Case No 8X 2016 CV 00422 Memorandum Opinion Page 8 of II 2022 VI SUPER 38

Additionally the Arbitrator 3 failure to apply the doctrine of laches cannot be said to constitute manifest disregard of the law since to ‘disregard’ the law the Arbitrator would have had to “appreciate[ ] the existence of a clearly governing legal principal but decide[ ] to ignore or pay no attention to it " Here nothing in the record shows that the issue of laches was ever brought to the Arbitrator s attention or consideration See Tempcorp Holdmgs Inc 73 V I at 644, Gov I of the VI Dept of Educ , 67 V I at 639 40 Therefore the Court will grant the Defendant 5 First Motion f0: Summary Judgment as to Count Two

C COUNT THREE Arbitrator Exceeded his Authority

‘1] 20 In Count Three V IWAPA claims that the Arbitrator exceeded his authority as the CBA did not empower the Arbitrator to make an independent determination regarding which individual was better qualified for the Electrical Distribution position Complaint at 8 Plaintiff additionally takes specific issue with the Arbitrator’s finding that the selection procedure was inherently discriminatory" as this argument was not contained in the grievance, not argued by the Union, is without record support and that ignores the rankings of the VIWAPA panel that evaluated the candidates Pl Supplemental Opp n at 3 n 3 Further Plaintiff a1 gues that the contract provides that VIWAPA was to be the sole judge of the applicants and that the Arbitrator s decisiou “manifested an infidelity to his obligation to draw the essence of his award from the [CBA] ’ Id at 3 4 7 (citing United Steelworkers ofAm v Enter Wheel & Car C0 363 U S 593 597 (1960))

(ll 21 The Court finds the Arbitrator did not exceed his authority as his decision did draw upon the ‘essencc of the contract See Untted Steelworkers (USW) Local Unton 9489 71 V I at 424 (citing Major Leage Umptres Ass n 357 F 3d at 279) To begin its analysis the Court outlines the relevant provisions of the CBA

‘11 22 Section 6 l of the CBA provides in part [t]he following procedure including arbitration shall be the exclusive and final means of settlement of all grievances arising under this Agreement (emphasis added)

‘1[ 23 Section 2 1 addresses the reserved rights of management and provides that All prior management rights, authority and functions shall remain vested exclusively in the Authority except insofar as specifically surrendered or limited by express provisions of this Agreement [t is recognized that such rights, authority and functions include but are not limited to the direction and control of the working forces including but not limited to being the sole judge of applicants for employment or promotion, their qualification, fitness and hiring or refusal to hire (emphasis added) VIWAPA v VIWAPA Prof'I & Technical Emps Union Inc Case No SK 2016 CV 00422 Memorandum Opinion Page 9 of 11 2022 VI SUPER 38

'1] 24 However, the language of the CBA clearly outlines some procedures related to filling job vacancies and seniority calculations See generally CBA Articles VII (Seniority) and VIII (Promotions and Transfers) Specifically Section 8 3 outlines the procedures regarding qualification for promotion ’ and states in the relevant part In all case cases of promotion wherein the qualifications of the employees are equal, preferenc+ shall be given to the employee with the greatest service seniority In determining an employee 5 qualifications the Authority shall also consider the employee 5 ability, aptitude experience attendance attitude, disciplinary re ords and performance evaluation shall be considered (emphasis added) ‘11 25 Section 6 8 of the CBA outlines the authority of the arbitrator and pr0vides The ArbitratOr shall have jurisdiction and authority only to interpret, apply, or determine compliance with the express provisions of this Agreement and shall not have authcnity to add to detract from, or alter its provisions in any way and shall confine his decision to a determination based upon the evidence presented (emphasis added) t][ 26 Given the plain language of the CBA the parties contiacted for an arbitrator to govern all disputes arising from theii agreement and since aspects of the hiring process die outlined in the CBA disputes related to the hiring process would have substantive arbitrability with the effect that such is an issue is within the scope of an agreement 5 arbitration clause and must be submitted to atbitration See United Steelworkers (USW) Local Union 9489 71 V I at 422 (quoting [m 1 Ass n of Machinist & Aero Workers V AK Steel Corp 615 F 3d 706 709 (6th Cir 2010))

11 27 Plaintiff argues that the Authority was to be the sole judge of an applicant 5 qualifications, see CBA, Section 2 l and that the clause regarding qualifications or promotions does not apply here since the grievant was seeking a lateral move and not a promotion, see CBA Section 8 3 Accordingly, VIWAPA argues the Arbitrator exceeded his authority when he passed judgment on the comparative qualifications of Jones and Thomas However this argument, like the one presented by the plaintiff in Gov (of the VI Dept ofEduc v St Thomas/St John Educ Adm rs Ass n Local 101 ‘ rely[ing] on its subjective interpretation of certain CBA provisions ” 67 V I at 641 Gov t of the VI Dept of Educ , illustrates how easy it is to conflate a non reviewable contract interpretation with an action outside the limits of authority If it may be found under any reasonable interpretation that an arbitrator acted within the essence of the contract, then by virtue of the reviewing court s limited scope, the arbitrator’s award must be upheld The Court finds here that consistent with the essence of the CBA the Arbitrator acted within his authority to interpret and apply the contract considering the qualifications of the applicants to ensure that the promotion process was followed VIWAPA v VIWAPA Prof I & Technical Emps Union Inc Case No SX 2016 CV 00422 Memorandum Opinion Page 10 of ll 2022 VI SUPER 38

1[ 28 Therefore the Court will grant Defendant’s First Motion for Summary Judgment as to Count Three

D COUNT FOUR Award is Arbitrary and Capricious

‘11 29 In Count Four VIWAPA alleges that the Award should be vacated because it is arbitrary am capricious and bears no rational connection to the tecord evidence Complaint at 8 9 Defendant responds that [t]he Contract was clear and the Award was made within the limits of said CBA Ken Def First Mot for Summ J at 7 Plaintiff argues that the Arbitrator dispens[ed] his own sense of individual justice Pl Supplemental Opp n at l 2

31 30 Again the ( ourt is constrained by its limited sc0pe of review and cannot consider factual determinations or contract interpretations made by the Arbitrator for the purpose of assuring that the parties get the benefit of their bargain See Gov tof the V 1 Dept of Educ 67 V I at 639 40 Looking to the essence of the patties contract processes are included for calculating seniority and for awarding promotions by giving preference to an applicant with seniority in the case of applicants with similar qualifications See generally CBA Articles VII (Seniority) and VIII (Promotions and Transfers) Given the highly deferential view with which the Com must view arbitration awards the Court finds that the Arbitrator’s Awaid of the position in diSpute to Jones cannot be deemed arbitrary and capricious but rather is reasonably seen to have been the product of the Arbitrator s interpretation and application of the essence of the parties contract See 1d CBA Section 6 8 Therefore, the Court will grant the Defendant s First Motion for Summary Judgment as to Count Four

E COUNT FIVE Award Manifestly Disregarded the Provisions of the CBA

‘1! 3| In Count Five VIWAPA alleges that the Arbitrator disregarded the express provisions of the contract which give VIWAPA sole discretion in making determinations related to promotion and transfer ’ and the award 'does not draw its essence from the clear provisions of the CBA Complaint at 9 10 Each party argues that the other is seeking to re argue the merits presented at the underlying arbitration proceeding that resulted in the Arbitrator 8 Award See Def First Mot for Summ J at? 8 Def FirstOppos atl

‘11 32 The Court reiterates that it is beyond the scope of its authority in this action to review the Arbitrator s interpretation of the language of CBA even if the Court disagrees with the interpretation and may have interpreted the language differently See Gov I of the V1 Dept of Educ 67 V I at 639 40 The Court is required to uphold an arbitration award if it can m any VIWAPA v VIWAPA Prof I & Techmcal Emps Uman Inc Case No SX 20l6 CV 00422 Memorandum Opinion Page II of II 2022 VI SUPER 38

I‘GIIOIUII way be derived from the agreement ” See Unwed Steelworkers (USW) Local Umon 9489, 71 V I at 424 (citing Major Leage UmpiresAss n 357 F 3d at 279)

‘R 33 Here, Court finds that the CBA can be rationally interpreted in the manner set out in the Arbitration Award particularly when considering the Arbitrator’s duty to interpret and apply the CBA that contains provisions for the manner in which qualifications and seniority are to be considered regarding an employee’s application for promotion The parties disagree as to whether the position in issue was properly considered a promotion for Jones (and therefore whether CBA Article VIII applied) Yet the Conn cannot find that the Arbitrator acted irrationally and not within the essence of the CBA Accordingly the Court finds that the Arbitrator acted within his authority in interpreting the CBA Therefore the Count will grant the Defendant’s First Motion for Summary Judgment as to Count Five

([1 34 Lastly, the C0urt considers Defendant 3 request for attorney 5 fees set out within its First Motion for Summary Judgment The Court does not find that this matter was filed in bad faith particularly given that the seminal case goxerning the scope of the Superior Conn 5 review of arbitration awards was not issued until after Plaintiff’s Complaint was filed Therefore, the Court declines to exercise its discretion to award attorney 5 fees Sec V I Civ P 54(d)(2); 5 V [C § 54]

11 35 A Judgment Order reflecting the foregoing is issued herewith

DATED March 2] 2022 DOUGLAS A BRADY J DOB

ATTEST TAMARA CHARLES Clerk of t rt / By ” Court Clerk Wises