*3
TRAXLER,
Before WILLIAMS and
HOWARD,
Judges,
Circuit
United
States
Judge
District
for the Eastern
Carolina,
District North
sitting by
designation.'
by published
Reversed and remanded
opinion. Judge
wrote
TRAXLER
majority
opinion,
Judge
joined. Judge
WILLIAMS
HOWARD
dissenting
wrote a
and concurring opinion.
be deter-
shall
complaint process],
OPINION
through final and
adjudicated
mined and
TRAXLER,
Judge.
Circuit
single, arbitrator
A
arbitration.
binding
brought
(“Murray”)
Daniel C.
strike
by the alternate
be chosen
shall
the Unit-
employer,
against his
action
provid-
arbitrators
a list
method
Union,
Workers
Food & Commercial
ed
President’s
[Local WO]
ed
office.
400”),
Cash
(“Local
and Donald
Local 400
au-
have the
shall not
Such arbitrator
al-
employee,
(“Cash”),
managerial
a union
alterfj change or diminish
thority
him
against
they discriminated
leging that
authority granted to
or
right
any power,
of Title
race in
violation
the basis of
on
Lo-
President of
Acting
President
see
Act
Rights
of the Civil
VII
*4
and conditions
the terms
cal 400 under
(West
&1994
§§ 2000e-2000e-17
U.S.C.A.
of Local 400.
Bylaws
of
(West
§ 1981
42 U.S.C.A.
Supp.2001), and
added).
(emphasis
J.A.
his
him from
1994),
they terminated
when
alleged
pen-
a
Murray also
employment.
29, 1998,
and Donald
Local 400
On June
against
claim for
law
defamation
dent state
employ-
his
Murray that
informed
Cash
director,
organizing
400 and
Local
terminated
400 would be
Local
ment with
(“Sauter”), arising from
Sauter
Christian
11,
Murray returned
1998.
July
effective
made
defamatory statements
alleged
and, on July
at Giant Food
position
his
to
The dis-
Murray
fired.
after
was
Sauter
Lo-
1998,
against
action
10,
instituted
to
motion
defendants’
granted
court
trict
Title VII and
and Cash under
cal.
Mur-
of
compel arbitration
and to
dismiss
white
42-year-old
a
Murray,
§ 1981.
claim,
de-
granted
and
ray’s discrimination
Cash,
400 and
male,
Local
alleged that
Murray’s defa-
dismiss
motion to
fendants’
American,
“his
terminated
is African
who
Rule of
to Federal
mation claim pursuant
his race even
of
on account
employment
12(b)(6)
to state
for failure
Procedure
Civil
employ-
qualified
he is
though
granted.
relief could be
upon
a claim
which
plan to retain
ment,
... defendants
and
remand.
reverse and
We
American em-
African
similarly situated
race.”
J.A. 8.
their
of
ployees because
I.
relief, Murray sought rein-
Among other
& Com-
the United Food
Local 400 of
orga-
a union
position
to his
statement
union
is
labor
Union
a
mercial Workers
damages.
monetary
nizer and
40,000 mem-
approximately
representing
1998, Murray amended
September
bers,
retail
employed
are
many of whom
Sauter, Lo-
to add Christian
complaint
his
1997, Murray
February
food stores.
Director, as a defen-
Organizing
cal 400’s
position
absence from his
took a leave of
defamation
a state law
and
dant
asserted
Inc.,
Food,
and
at Giant
produce
clerk
Mur-
Sauter.
Local 400 and
against
claim
orga-
a union
full-time as
began working
him after
defamed
alleged
Sauter
ray
of
400. As
condition
nizer for Local
position as a
from his
was terminated
he
400, Murray was
employment with
by telling
with Local
organizer
union
containing
sign
required
employees that
Giant Food
one or more
clause:
following
J.A.
good organizer.”
“was
employed
are
under
Representatives
All
Bylaws of Local
the terms of
to dismiss
a motion
and
filed
Defendants
...
of
discrimination
Any claims
Murray’s discrimi-
compel
properly remedied
...
not been
ha[ve]
claim,
to dismiss
ás well as motion
nation
400’s
discrimina-
through
internal
[Local
Murray’s defamation claim for failure to tration agreements upon the same footing
”
Maryland
contracts,’
state a
for relief under
claim
as other
Green Tree Fin.
granted
law. The district court
Corp.-Alabama
both mo-
v. Randolph,
531 U.S.
tions,
(1)
holding
the discrimination
(2000)
II.
ply to employment agreements to arbitrate
begin
We
with
contention that
brought
claims
pursuant
discrimination
the district court
in granting
erred
statutes,
federal
including Title VII of the
motion to dismiss and
compel
arbitra-
Stores,
Rights
Civil
Act.
City
See Circuit
tion of his race discrimination claim
Adams,
105, 109,
Inc. v.
532 U.S.
121 S.Ct.
brought under
§
Title VII and
1981 1302,
(2001);
A. ‘[b]y forceable because agreeing to arbi The Federal claim, Arbitration Act trate a statutory a party does (West (“FAA”), 1999) §§ 9 U.S.C.A. 1-16 forgo the rights by substantive afforded represents “a policy statute; liberal federal favor only submits to their resolu ing agreements,” arbitral, H. in Moses judicial, rather than ” Cone Hosp. Hooters, Mem’l v. Mercury Constr. forum.’ 173 F.3d at (quot 937 1, 24, Corp., Gilmer, 460 103 ing S.Ct. 500 U.S. at “ (1983), L.Ed.2d 765 in order reverse If litigant ‘to “the prospective may effectively judicial the longstanding hostility arbi vindicate statutory his or her cause of agreements ... place forum,” and to arbi- action arbitral is claim B. subjected to arbitration appropriately at litigation. Green lieu mind, we principles With these (internal marks quotation a valid and question of whether to the turn omitted). alteration and agreement existed enforceable com Local 400 which Murray and
between
well-estab
strength of this
his race discrimi
Murray to submit
pelled
favoring the enforcement
policy
lished
as
arbitration.
claim to
nation
however,
agreements,
clause,
drafted
valid
that the arbitration
serts
Rather, courts
inquiry.
required
not end our
which he was
does
400 and to
by Local
employment,
whether
of his
upon to determine
as a condition
are called
to accede
it is
one to be
because
at
is
and enforceable
dispute
not valid
issue
is
particular
so,
Local 400.
in favor of
doing
structurally
biased
through arbitration.
resolved
Murray points
specifically,
review to ensure More
in a limited
engage
“we
(1)
sin
“[a]
that
i.e.,
requirement
dispute
arbitrable —
alter
chosen
shall be
gle
be
to arbitrate exists
valid
of arbitra
from list
strike method
nate
the specific
tween
office”;
the President’s
provided by
tors
scope
the substantive
dispute falls within
(2) that,
event,
arbitra
any
“[s]uch
Hooters,
173 F.3d
agreement.”
[,]
authority to alter
have the
shall not
tor
omitted).
(internal quotation marks
right or
any power,
change or diminish
circumscribed,”
“ju
Although “highly
... of
to the President
authority granted
solely on
...
focused
inquiry
is not
dicial
terms and conditions
400 under the
formation
for contractual
an examination
J.A. 79.
Local 400.”
Bylaws of
of mutual assent
as lack
defects such
*6
claims,
these
together,
Construed
Rather,
the
Id.
of consideration.”
want
grossly un
agreement
render the
clauses
parties
that
contemplates
specifically
FAA
choice of
by placing
the
fair and one-sided
an
revocation of
arbitration
may also seek
in
of Local
exclusively the hands
arbitrator
as exist
grounds
“under ‘such
agreement
event,
that,
any
in
Local
and providing
400
fraud, du
including
equity,’
at law or in
result
disregard
can
400
Sydnor v.
ress,
unconscionability.”
alter the
the
cannot
arbitrator
because
F.3d
Servicing Corp., 252
Fin.
Conseco
Local
authority, under the
400
President’s
Cir.2001)
(4th
302,
9 U.S.C.A.
(quoting
305
employment
Bylaws, to “terminate
course,
arbi
And,
agreements
§
assign
an
at the end
any [personnel]
claims,
statutory
such
trate federal
of the Local
in the
interest
or
best
ment
VII, may be
under Title
pursued
those
J.A.126.
Union.”
litigant
prospective
if
demon
revoked
“effectively ... vindi
principles
that
cannot
with the
strates
In accordance
in
statutory
above,
recog
cause of action
previously
have
cate his
her
outlined
we
531
invalidation
equity may require
forum.” Green
the arbitral
nized that
(internal
89,
quotation
is uncon
agreement
513
at
of an arbitration
305;
omitted);
at
scionable,
252 F.3d
Sydnor,
Brad
see
and alteration
marks
cf.
Inc.,
Hooters,
well as an
Sys.,
at
Semiconductor
F.3d
v. Rockwell
ford
Cir.2001) (“[T]he
an
em
agreement
allows
F.3d
result, see
ignore the arbitration
particu
ployer
...
is whether
inquiry
crucial
Stores, 148
City
F.3d
Johnson
Circuit
has an
accessi
adequate
lar claimant
O’Neil,
(4th Cir.1998);
115 F.8d
his
to resolve
forum
ble substitute
Hooters, we
”).
Indeed, in
revoked
274-75.
statutory rights....
agreement plagued by
an arbitration
rules
from punishing arbitrators who rule
procedures
which were “so one-sided
against
company by
them
removing
only possible purpose
that their
[was]
from the list. Given the unrestricted
neutrality
proceed-
of the
undermine
control
employer]
[the
has over the
Hooters,
ing.”
In this we are presented with a quite choosing similar method for the deci- ' Although an will sionmaker. As a condition of employ- his not be invalidated for failure to “replicate ment, Murray required to enter into judicial forum,” id. at we again his drafted refuse to enforce an “utterly so prospective employer placed control lacking in the rudiments of even-handed- over the single selection ness,” By id. at 935. agreeing to arbitra- disputes employment the hands of tion in litigation, lieu of parties agree employer. ostensibly en- *7 procedures to “trade opportunity ‘the and in gage an alternate strike method to se- for review the courtroom of for the sim- lect single from a list of plicity, informality, expedition of arbi- arbitrators, prospective they but exercise ” Gilmer, tration.’ Id. at 936 (quoting these “from alternate strikes a list of arbi- at U.S. They do not provided by” trators Local 400 with abso- agree to forego right their to their have lutely specified no constraints. J.A. dispute fairly resolved an impartial respect, the selection method is party. that, third See id. at 941 (noting virtually indistinguishable from the one we although objections the fairness of an disapproved of Hooters: proceeding general arbitral be must employer] [The is free to devise lists of submitted to the arbitrator in the first partial existing arbitrators who have re- instance, may arbitration proceeding familial, lationships, financial or with be so party’s one favor skewed as to employer] management. [the and its fact, deny the other any “arbitration in prohibit rules do not even [the word”). employer] meaningful placing from its of the In such a managers sense ease, Further, themselves on the list. nothing is unconscionable in the rules restricts employer] [the one under the prospective litigant argues that Local 400 Additionally, statutory at 17. effectively vindicate cannot construe the not we should action. See Green cause of selected arbitrator denying the provision 89, 121 “alter[,] change or dimin- any authority C. authority granted right or any power, ish 400 under ... of Local to the President we 400 asserts that part, Local For its Bylaws of of conditions the terms and beyond language look should 400,” allowing to disre- Local J.A. clause, accept that arbitration because, the decision the arbitrator’s gard conducted before agreement was under the termi- discriminatory goes, a argument arbitrator, and trust fair and unbiased a as an action be construed nation could not way, the other gone decision that had the of’ Local “in the best interest taken right have not asserted Local 400 would J.A. 126. agree- Murray under to terminate de-We Bylaws. to its ment’s deference argument, in Local The flaw 400’s to do cline so. course, no reference to that there is is of court, 400 as- Before the district for the Resolution AAA National Rules list it did not maintain serted that any or to other disputes, Employment President’s office and that the arbitrators of an arbitra the selection governing rules a list of neu- have to obtain would instead of the arbi tor, language in the anywhere Arbi- the American tral arbitrators engendering no doubt agreement, tration Arbitration Labor Association’s in this case. and confusion uncertainty and Con- Federal Mediation Rules or the merely not Furthermore, is collective it does ciliation Service method; the se the selection silent as to employers. bargaining agreements with alternate by the is to be lection method proce- that this Murray pointed out When a list arbitrators method from strike in the col- selecting an arbitrator dure for by Local arbitrarily or created selected apply not context would bargaining lective employee. provided to and then cases, Local 400 employment in individual therefore, is little argument, Local 400’s request instead that it would argued then Local 400 than a claim that because more the American under a list of arbitrators arbitra says provide it will list of neutral Rules National Arbitration Association’s by the ultimate tors and abide Employment Dis- for the Resolution decision, procedure is the selection em- apply could individual putes, which not uncon one-sided and district court After the ployment cases. Local 400 decline to allow We scionable. compel arbi- motion to granted Local 400’s because it salvage simply tration, a list was obtained such harangu after may provided, have much *8 using from it was selected single arbitrator in this impartial arbitrators ing, a list of method. the strike alternate fairly in case, it to act promises or because agreement future cases. of the this construction arbi- upon Based Local 400 as written and is unenforceable provision, selection tration clause and may is not rewrite 400 asserts that the Local aon case- to standards be adhere unwritten it “must valid and enforceable because it an that is in order to claim by-case basis [of President requiring construed the Airport Perez acceptable one. Globe a neutral list of provide to 400] Cf. Inc., 1285-86 253 F.3d can Sec. Servs. parties from which the arbitrators Cir.2001) (11th re- (rejecting attempt to Appellees choose an Brief arbitrator.” unenforceable clause in compelling write arbitration and remand the it). salvage order to for litigation judicial claims in the forum. Nor it appropriate is for us to now III. adjudicate Local 400’s claim that the arbi ultimately this case was conduct We now turn to claim that the ed in a fair impartial manner before an district court in ruling erred that Murray arbitrator, a fact appears that'at least failed to state an actionable defamation subject dispute.. remain the of some When against claim Sauter and Local 400 under compelling order en arbitration was Maryland and, therefore, law in dismissing tered, reasonably believed that 12(b)(6). claim pursuant to Rule it was not immediately appealable under dismissing claim, the district court See, existing precedent. e.g., this circuit’s that ruled Sauter’s statement that Murray L-J, Inc., American Cas. Co. v. 35 F.3d not good “was organizer” was not defam- Cir.1994). Consequently, atory per law, se under Maryland and that appeal this is the first opportunity- Murray merely the statement was the expression has had to challenge the order of arbitra opinion, of Sauter’s opposed to one of tion. nowWe know that such an order fact, which could.be neither verified nor compelling arbitration dismissing in litigation. refuted underlying claims is “a final decision with law, Maryland “Under a de respect arbitration,” to an 9 U.S.C.A. famatory statement is one that tends to 16(a)(3), § immediately which is appeal- expose person public hatred, scorn, See able. Green ridicule, contempt or thereby discouraging The Supreme Court’s decision others in the community from having a Tree, however, in Green post-dates the of, good opinion or associating court’s order compelling district arbitra with, dealing person.” Samuels v. otherwise, tion. Had it been Tschechtelin, 135 Md.App. 763 A.2d would have been entitled immediately (2000) (internal 241-42 quotation appeal the compelling order un omitted). marks “To prima establish a challenge der the valid case of defamation plaintiff when the facie ity here before being public not a figure, plaintiff must forced litigate claims the arbitral (1) prove: that the made a de defendant forum at all. uncertainty Because of the famatory communication to a person; third law, the fact has not (2) false; (3) that the statement was able to appeal been the issue until now the defendant was at fault communicat cannot against future, be held him. (4) statement; ing the that the plain procedural uncertainty will not exist. tiff suffered harm.” Id. at 242. conclude, To we hold and, therefore, is unenforceable While the tort of defamation is that the district court in compelling erred generally viewed as upon one based false arbitration. Although we fact, note that may assertions of also be based district court did not have benefit of upon expression opinion to a decision in our Hooters or of the Supreme person if “opinion third im contains *9 in Green Tree granted Court when it Local plied assertions of underlying objective compel 400’s motion to “loose, arbitration of Mur- Although fact.” Id. at 242. figura ray’s claims, tive, discrimination we are none- hyperbolic language” expressing a theless constrained to reverse the order opinion may fairly mere be viewed as
306 failure to 12(b)(6) for motion to dismiss Lorain defamatory, Milkovich v. being Mary- 2695, under 21, a claim for defamation Co., state 110 S.Ct. Journal and, and re- accordingly, reverse (1990), land law 1 “a false statement 111 L.Ed.2d proceedings as claim for further for defamation mand this escape liability fact cannot Samuels, 763 well. guise opinion.” under the Milkovich, at (citing at 242
A.2d statement, even “[A] IV. can be opinion, an in terms of expressed if reasons, we reverse foregoing For circum- certain defamatory under defen- granting court’s decision district underlying facts .... stances When Murray’s Title motion to dismiss dants’ given are not opinion form the used to arbitration, compelling re- VII claim statement, defamatory along with the granting decision district court’s verse the being as may be treated itself statement dismiss motion to defendants’ defamato- potentially therefore factual and claim, and remand law defamation state Md.App. Streng, 116 ry.” Peroutka v. further proceedings. this matter for (1997). A.2d AND REMANDED. REVERSED court’s to the district Subsequent in claim Murray’s defamation HOWARD, dissenting
dismissal Judge, District case, Special Maryland Court of concurring part part: statement employer’s an Appeals held that majority’s decision I with concur for terminated employee an “had been However, I think an Part III. because defamatory se per performance” was poor not rendered un- agreement is Samuels, 241; 763 A.2d at law. under its failure to state merely conscionable Murray’s claim of defama at 245. see id. arbitrators, obtain list of how will allegation that in the genesis tion has its II of the Part I dissent from respectfully twice, stated, at one or least “Sauter majority’s opinion. [Murray] was employees, more Giant II is in Part wheth- presented issue The he so and that did good organizer,” not a exist for revoca- equitable grounds er falsity of this state knowledge with valid an otherwise tion of injure Murray. the intent to ment and with concludes an majority The arbitrate. Sauter, alleged, J.A. with silence re- 400 and for Local Organizing Director employer’s procedures an ob- spect to Mur shortly after made these statements renders the taining a list of arbitrators employment from his ray was terminated unconscionable. organizer for Local as a full-time that an majority also arbitra- indicates expression an of Sauter’s perhaps While unconscionable contains arguably at opinion Murray, it is least might employee an construe when terms might be opinion construed bylaws agreement and Murray’s failure to fulfill implying to fire allowing the President of Union organizer. union position of a duties of his of the arbitra- irrespective an employee defamatory alleged Because the statement tor’s decision. of under “implied such assertions contains Samuels, majority’s refusal to en- fact,” A.2d consider objective lying on unconscio- the arbitration clause Maryland force of this recent view with both nability grounds inconsistent Murray’s allega we hold that precedent, prece- and Fourth Circuit Supreme Rule Court to survive a tion was sufficient
307
Corp.-Ala
Tree Fin.
agree
Murray signed
dent. See Green
a binding arbi-
79,
Randolph,
v.
531
121
agreement
bama
U.S.
S.Ct.
that covered
dis-
513,
(2000);
tion agreements upon
footing
same
other
contracts.”
Gilmer
v.
Inter
The majority holds that the arbitration
20, 24,
Corp.,
Lane
500 U.S.
state/Johnson
is unconscionable because the
(1991).
111
114
In
L.Ed.2d 26
S.Ct.
selected from a list of
is
arbitra-
evaluating
agree
whether an enforceable
provided by
tors
the Union.
In consider-
exists,
ment
apply
to arbitrate
courts
ordi
ing
unconscionability
challenge, federal
nary
principles. Sydnor
“[ujnconscio-
v.
contract
Con
courts must remember that
Servicing
seco
Corp.,
Fin.
252 F.3d
nability
whereby
narrow doctrine
(4th Cir.2001). Moreover,
federal
challenged contract must be one which no
single
courts should not
out arbitration
into,
person
reasonable
would enter
status,
agreements
suspect
but should
inequality
gross
must be so
as to shock
arbitration agreements
evaluate
under
Sydnor,
conscience.”
252 F.3d
prevailing
(citations
contract
(quot
standards.
Id.
omitted).
quotations
and internal
Casarotto,
ing
Doctor’s Assocs.
While the arbitration
does
681, 687,
arbitrator.
Tree,
typically
of fees
list with the Union
submitted evidence
an arbitrator
providing
Union,
repeat
a
associations
charged by leading
that
recognizes
has bet-
process,
in other arbitration
in the arbitration
of fees incurred
player
obtaining
a list
rejected
to methods
this evidence as
ter access
The court
cases.
Murray.1
While the
than
of arbitrators
that
stating
Green
speculative,
a
have drafted
admittedly
arbitration,
could
Union
se-
had not
requesting
party
agreement,
precise arbitration
more
arbitra-
associate or
lected an “arbitration
does not make
ambiguity
agreement’s
also
dispute
parties’
to resolve”
tor
render
sufficiently oppressive to
contract
the arbitrator’s
noting
possibility that
Indeed,
extraordi-
absent
it unenforceable.
6, 121
waived.
Id. at 91 n.
fee would be
circumstances,
ambiguity
mere
nary
other than
Finding no evidence
S.Ct.
type
provision
term is not
contract
silence” as to
agreement’s
the “arbitration
the con-
can
said to “shock
be
costs, the Court
of arbitration
allocation
speculative to
the invalidation
pelled by
the Fourth Circuit’s decision
agreement.”
Randolph,
Id.
Mediation and Conciliation Service.
that the President's
Federal
1. The record indicates
association then sends the
or draft a list of
The arbitration
office does not maintain
Instead,
randomly
arbitra-
President a list of
selected
when arbitration is de-
arbitrators.
215-16, 360-402).
(J.A.
disputes
bargaining
tors.
pursuant
manded
to a collective
Union,
involving employees
dispute by
employee,
and the
Union
or a
a Union
(J.A.
charged by
pays
the AAA.
399-
of arbitrators from
the fees
the Union obtains
list
or the
the American Arbitration Association
tained,
Hooters America v. Phillips, 173 F.3d
and “created exclusively by Hoot-
*12
of
Cir.1999).
938-39;
represents
Hooters
ers.” Id. at
Hooters
Am. v.
of
(D.S.C.
Phillips,
39 F.Supp.2d
“limited circumstances”
which an arbi-
case,
In this
agreement containing
agree-
multitude
ment states that
provide
the Union will
egregiously
procedures
of
biased rules and
(J.A.
5),
list of arbitrators
says
but
party’s
demonstrated one
intent to make a
nothing about the
right
Union’s
or intent
mockery
system.
of the arbitration
Id. at
to exercise independent control
938;
over the
Sydnor,
ray, pointed containing rules, an arbitration taking their shown unfair thus flagrantly remotely close terms even egregious unconscionability outside allegations or bad faith cited Hooters those the arena of and into speculation, realm of Union, uncon- his failure to demonstrate of harm. likelihood a demonstrative prior of contract scionability or breach that a recognizes also Hooters him re- not leave without arbitration does *13 setting arbitra- responsibility of with the the arbitra- If the skewed course. Union a contractual procedures has tion rules and favor, Murray right has the in its pool tion Hooters, in faith. duty good to do so to show postarbitration to return to court con- court in Hooters F.3d at 938. The vacatur of the arbitrator bias and seek num- of vast promulgation cluded that the § a 9 U.S.C. arbitration award under was not of unfair and rules bers biased in by the Court contemplated scenario unconscionable, duty only breached but Tree, 531 at Tree. Green Green See contrast, good faith. Id. at J., (Ginsberg, dissenting) rules and point failed to to Murray has majority opinion did not fore- (noting that faith, in promulgated bad procedures challenging arbitration close by anticipatory an breach even evidence of However, postar- postarbitration).3 costs in its contractual performing the Union not the basis of the review bitration duty a of neutral arbitra- provide to list majority’s opinion. to the dis- indicated tors. As Union court, a list of ultimately obtained trict B; source, from an outside arbitrators Arbitration Association Finally, majority passing *14 give the power ignore President the decision,
circumvent the arbitrator’s I
would refuse to read unconscionable terms agreement.
into the
II. reasons,
For foregoing respectfully I majority’s
dissent from the decision in II,
Part and would affirm the district opinion dismissing Murray’s
court’s Title
VII compelling claims and arbitration.
concur majority’s with the decision in Part
III reversing the district court’s dismissal state laws claims. America,
UNITED STATES of
Plaintiff-Appellee, Holguin HERRERA,
Ismael
Defendant-Appellant.
No. 00-51177.
United States of Appeals, Court
Fifth Circuit.
April
American
notes
(“AAA”).2
arbitration
invalidating
rules are one-sided
that the
majority presumes
reading
the arbitra-
agreement,
employee,
because an
bylaws
obli-
carry
togeth-
its contractual
Union’s
Union will
out
er,
arbitrator
believe
decision favorable to
gation
provide
might
neutral
However,
by
ignored
in accordance with
be
employee
faith.
could
bad
First,
at
wheth-
supra
it is President. See
ordinary
principles,
contract
believe
does not
to arbi-
er a document is unconscionable
entirely proper
presume, prior
subjective
suggesting
employee’s
turn on an
beliefs
tration and without evidence
Second,
agreement.
otherwise,
will act in about the
that both
to enforce
duties of while courts have refused
arbi-
accordance with their contractual
specifically allowing
agreements
dealing.
faith and fair
good
that the arbitration he
provide
an
3. While
asserts
2. The Union selected the AAA
biased,
post-arbi-
list because the Federal Arbitration
ultimately
was
his
received
only provides arbi-
Service
and Conciliation
bias were limited
tration claims
actual
disputes
employers and
trators for
between
argument that
arbitration was biased
(J.A. 254).
employees.
The AAAis
unionized
paid
because the Union
all of
arbitrator’s
non-profit organization
was
large,
(J.A. 403-05).
majority’s
fees.
decision
striking
Hooters'
used as a model in
down
does not discuss
issue as
basis
Hooters,
agreement. See
173 F.3d
Moreover, my reading
opinion.
of the claims
Murray presented
little evidence
939-40.
presented
does not
to the
court
find
district
poli-
supporting his
that the AAA’s
accusation
suggestion
support
majority's
for the
procedures yield
arbitrators.
cies and
biased
ultimately
an arbitrator who
received
Thus,
Murray's
majority's suggestion that
actually
supra
See
at 304.
was
biased.
Union,
"hand-picked”
arbitrator was
supported by the record.
supra at
is not
decisions,
ignore
employers to
arbitrators’
the Fourth Circuit
O’Neil v. Hilton
Hospital,
Head