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Mossman v. City of Oakdale

January 14, 2009


APPEAL from a judgment of the Superior Court of Stanislaus County. David G. Vander Wall, Judge. (Super. Ct. No. 612805).

The opinion of the court was delivered by: Wiseman, Acting P.J.



In this twist arising from a contractual arbitration proceeding, we address whether an arbitrator's award that concludes (1) the City of Oakdale violated its own personnel rules, and (2) then directing the employee to be "made whole," without more, is an enforceable award. As sometimes happens, the arbitrator ordered the parties to work out the details of the make-whole remedy, which they did not do. This appeal flows from a judgment denying a motion to vacate the arbitration award pursuant to Code of Civil Procedure section 1286.2 on the ground the arbitrator did not specify an adequate remedy and therefore did not resolve all issues submitted to arbitration. Although we conclude that the arbitrator resolved issues presented in the arbitration, we order the judgment reversed because, in its current form, the judgment is unenforceable. We remand to enable the original arbitrator to determine the appropriate nature of the make-whole remedy.


This is an appeal from a judgment denying a motion to vacate an arbitrator's award pursuant to Code of Civil Procedure section 1286.2*fn1 brought by appellant City of Oakdale (Oakdale) and confirming the award issued by arbitrator Kathleen Kelly on November 2, 2006, in favor of respondent Kimberly Mossman (Mossman). Mossman filed a petition to confirm the arbitrator's award near or at the time Oakdale filed its petition to vacate the award. The two petitions were consolidated, and the petition to confirm was granted at the same time the petition to vacate was denied.

Mossman was employed by Oakdale in the position of administrative secretary to the police chief. In August 2005, Mossman was notified that her position was being eliminated because of an impending budget cut. Mossman inquired about the bumping rights identified in paragraph 403*fn2 of Oakdale's Merit System Rules and Regulations (2004 ed.) (personnel rules). The paragraph provides that, in any reduction caused by lack of work or funds, seniority "shall be observed" and that "[t]he order of lay-off shall be in the reverse order of total cumulative time the employee has served in municipal service." At the time, the individuals holding two comparative positions were more senior to Mossman. However, there were two full-time administrative secretary vacancies open, one in the community development department and one in the public works department. There was also a part-time administrative secretary vacancy in the city manager's office. Mossman met the minimum qualifications for these three open positions. She asked to be allowed to fill one of them in exercise of her bumping rights. She was told, however, that she did not have the right to bump into administrative secretary positions in other departments. She was not considered for the vacant positions and ultimately was terminated.

In response, Mossman filed a grievance pursuant to paragraph 1104 of the personnel rules. At the first two steps of the grievance procedure (review by the department head and by the city administrator), Mossman's grievance was rejected. In place of the third step (an appeal to a convened adjustment board), the parties agreed to submit the dispute to a neutral arbitrator. Arbitrator Kelly was selected.

The arbitration hearing was held on May 8, 2006. At the start of the hearing, the parties stipulated that the issue being submitted for final and binding determination was: "Did [Oakdale] deny bumping rights to [Mossman] in violation of [the personnel rules] and if so what is the appropriate remedy?" In addition, the parties agreed that, in the event the arbitrator's award contained some remedy, the arbitrator would retain jurisdiction over any disputes that might arise concerning interpretation or implementation.

In a written opinion, the arbitrator found in favor of Mossman, noting that paragraph 403 "clearly contemplates some capacity on the part of laid off employees to bump into positions for which they are qualified." The arbitrator found that, in the summer of 2005, Mossman was asking to fill positions that were vacant and "[w]hatever orientation [Mossman] might have required for those work settings [positions in other city departments] cannot be found so great as to preclude the operation of bumping rights under the general language of [paragraph] 403. She should have been offered any vacancy existent for the position of Administrative Secretary." The arbitrator concluded that Oakdale had violated paragraph 403 and ordered that Mossman "be made whole for losses sustained as the result of this violation." The arbitrator ordered that the details of the remedy be remanded to the parties and gave them 30 days from the date of the award to submit any unresolved issue to her for resolution. Neither party acted within this time frame.

Since her termination, Mossman has found part-time employment. She does not receive dental, health, vision, or retirement benefits formerly provided to her as an Oakdale employee.


I. Ambiguity of Award

The exclusive grounds for vacating an arbitration award are those listed in section 1286.2 of the California Arbitration Act, § 1280 et seq.*fn3 (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 27-28.) Oakdale argues that the arbitrator acted in excess of her jurisdiction by refusing to decide an issue submitted to her for resolution. Section 1283.4 of the Arbitration Act requires that an arbitrator's award "shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy." (ยง 1283.4.) According to Oakdale, although the issue of remedy was submitted to the arbitrator, she did not decide it, instead remanding the issue back to the parties. If Oakdale is correct, failure to decide an issue submitted to an arbitrator provides a valid ground for vacating the award. (See ...

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