Plаintiff brought this action against his employers, Distribution Trucking Co. and Fred Meyer, Inc., for unlawful termination under ORS 659.035(l)(a) and for common-law wrongful discharge. As to both claims,
Plaintiff worked as a union truck driver for defendants. Along with numerous other employees, plaintiff attended an unemployment hearing at which he was prepared to testify on behalf of a coworker and fellow truck driver (Cach) who had beеn discharged, purportedly for failing to follow defendants’ break policies. Cach intended to call approximately 20 coworkers to testify. The hearings referee, however, determined that the listed witnesses would testify “on the same general points.” The referee therefore limited Cach to presenting the testimony of three of the witnesses. Plaintiff was not one of the three that Cach chose to call. Consequently, although plaintiff went to the heаring and was willing to testify, he did not do so. Two months after the hearing, defendants discharged plaintiff. Defendants’ stated reasons for the discharge were that an investigation had revealed that plaintiff had falsified several time sheets and had violated workplace break policies.
In response to the discharge decision, plaintiff invoked the arbitration provision of the collective-bargaining agreement (CBA) between his union and defendants. 1 Plaintiff was represented in the arbitration proceeding by the union, which asserted on plaintiffs behalf that plaintiff had not been discharged for just cause but instead was discharged in retaliation for his union activities and for his participation in the Cach hearing. In the course of the arbitration hearing, all witnesses were sworn before testifying, the hearing was recorded and transcribed, both parties submitted post-hearing briefs to the arbitrator, and the arbitrator issued a written opinion.
At the arbitration hearing, plaintiff testified to the facts and circumstances that led him to believe that the discharge was retaliatory rather than based on work-related misconduct. In particular, plaintiff asserted that, at Cach’s unemployment hearing, plaintiffs supervisor “stared” at each person who was present and willing to testify and that the supervisor wrote down the names of those individuals. Plaintiff further testified that his supervisor had admitted that he scrutinized plaintiffs time sheets оnly after seeing plaintiff at the Cach hearing. Plaintiff also called witnesses to testify on his behalf. One coworker testified that defendants similarly accused him of break policy violations and that his supervisor similarly claimed that he “became aware” of the break policy violations after seeing that coworker at the Cach hearing. In response to plaintiffs claims at the arbitration hearing, defendants put on evidence to demonstrate that they in fact discharged plaintiff because of misconduct in the form of falsifying time sheets and failing to follow company break policies.
The arbitrator ruled that defendants discharged plaintiff because he willfully violated defendants’ break policies. In rejecting plaintiffs claim of a retaliatory motive for the discharge, the arbitrator was persuaded by evidence that defendants had been concerned about and had warned plaintiff about violating break policies in the past. The arbitrator
stated that, if defendants had been “out ‘to get’ ” plaintiff for “his past service as a Union steward,” then they would have “charged him
The arbitratоr did not, however, conclude that plaintiffs discharge was appropriate. Rather, the arbitrator determined that defendants failed to investigate plaintiffs break activities before the violations accumulated and that, before plaintiffs discharge, enforcement of some company policies had been lax. Under those circumstances, the arbitrator deemed discharge to be an excessive sanction and concluded that рlaintiff should be reinstated to his former position. The arbitrator refused to award plaintiff back pay, however, reasoning that plaintiffs misconduct was deliberate, serious, and persistent and that suspension without pay was an appropriate disciplinary response. After the arbitration became final, plaintiff filed this action for unlawful termination under ORS 659.035(l)(a) and common-law wrongful discharge.
We begin with plaintiffs first assignment of error, which challenges the grant of summary judgmеnt on his statutory unlawful termination claim. That claim was based on ORS 659.035, which provides, in part:
“(1) It is an unlawful employment practice for:
“(a) An employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee * * * has testified in good faith at an unemployment compensation hearing.”
(Emphasis added.) The trial court entered summary judgment in defendants’ favor, concluding that the statute does nоt apply because plaintiff did not actually testify at the hearing. Plaintiff disputes that conclusion, arguing that, although he did not give “live” testimony at the unemployment compensation hearing, he falls within the statute’s scope because he appeared in person at the hearing and was ready, willing, and able to testify. He further argues that he should be deemed to have testified because he was on Cach’s witness list but was not called because the arbitratоr expected all witnesses to offer similar testimony.
We reject plaintiffs position because we conclude that the statute expressly extends its protection only to persons who actually testify, not ones who are present and willing to do so, but in fact do not. By its terms, ORS 659.035(l)(a) prohibits an employer from discriminating or retaliating against an employee who “has testified.”
See generally Martin v. City of Albany,
That conclusion is reinforced by two other considerations. First, the statute expressly protects only persons who have testified “in good faith.” Whatever else that qualifier may require, at a minimum it reflects a concern with the substance of testimony and the motivations of the person giving it. It would be pure speculation for a trier of fact to determine whether someone testified “in good faith” when that person never testified. That qualifying language, likewise, gives the statute a completed act focus.
Second, other statutes demonstrate that, when the legislature intends broader protection, it provides for it expressly. ORS 654.062(5)(a), for example, prohibits employers from discriminating against an employee who “has testified or
is about to
testify” in proceedings brought under the Oregon Safe Employment Act. (Emphasis added.) Similarly, ORS 659.030(l)(f) prohibits discrimination against a person who “has filed a complaint, testified or
assisted
in any proceeding under ORS 659.010 to 659.110 and 659.400 to 659.545
or has attempted to do
so.” (Emphasis added.) Thus, when the legislature intends to protect more than the act of
In short, for us to extend the statute to persons who are present or willing to testify would require adding words to the statute that are not there. We are not at liberty to do so. See ORS 174.010 (binding courts to the familiar command “not to insert what has been omitted, or to omit what has been inserted”). We therefore conclude that the trial court properly granted summary judgment for defendants on plaintiffs statutory claim. Plaintiff did not actually testify, as he concedes. Nor is the statute satisfied by the presеnce of his name on Cach’s witness list as one of numerous witnesses who presumably would testify “on the same general points.”
Plaintiff next assigns error to the trial court’s grant of summary judgment on his common-law wrongful discharge claim. As to that claim, plaintiff challenges the trial court’s conclusion that his appearance at the Cach hearing does not fall within the “public policy” or “societal obligation” exceptions to the at-will employment doctrine.
See Delaney v. Taco Time Int'l,
Issue and claim рreclusion principles determine the “binding effect on a subsequent proceeding of a final judgment previously entered in a claim.”
Drews v. EBI Companies,
Although defendants appear to argue that both issue and claim preclusion apply,
2
claim preclusion is not implicated in this case. The CBA between plaintiffs union and defendants provides that an arbitrator may determine only the rights and obligations of the parties under the agreement.
3
Where a CBA contains such a limitation, a later judicial action is not barred under claim preclusion principles unless the action is based only on the rights and obligations under the CBA.
Cf. Coulter v. Construction and General Laborers Union,
Issue preclusion, however, is implicated because defendants’ motive for terminating plaintiff qualifies as an issue. Thus, issue preclusion potentially operates if the issue of defendants’ motive actually was resolved in the arbitration and was nеcessary to the decision.
See Drews,
In asserting that issue preclusion supports the grant of summary judgment, defendants first contend that, as a general proposition, issue preclusion should apply to findings in an arbitration decision if the elements for issue preclusion are otherwise satisfied. Next, they maintain that those elements are satisfied in this case because “[t]he wrongful discharge tort rеquires plaintiff to prove a specific, forbidden motive for his discharge. That alleged motive, however, contradicts the conclusive arbitration award which arose from plaintiffs discharge.” In response, plaintiff does not dispute that the arbitration proceeding determined the issue of the motivation for the discharge. Plaintiff asserts only that claim and issue preclusion principles are inapplicable to arbitration decisions. 4
Contrary to plaintifPs position, the proposition that preclusion rules may apply to claims or issues decided through arbitration proceedings appears to be well-settled in this state.
See Rueda v. Union Pacific Railroad Co.,
Nor, in our view, should there be doubt as to that general principle. Traditionally, judicial doctrines of issue and claim preclusion (originally termed
“res
judicata” and “collateral estoppel”) were applied only “intramurally” — that is, to courts within the same judicial system — in implicit recognition of the “equal juridical dignity” of courts with similar or the same jurisdiction and rules of procedure.
Restatement (Second) of Judgments,
Introductory Note to Ch 6, 263 (1980). Indeed, the doctrines originally applied only when both proceedings were trials in civil cases.
Ratliff,
In recognition that preclusion rules potentially serve those goals in the context of arbitration proceedings, the
Restatement (Second) of Judgments
§ 84(1) endorses the position that a “valid and final award by arbitration has the same effects under the rules of res judicata, subject to the same
Plaintiff identifies no reason why, if issue preclusion applies to arbitration proceedings generally, this would nоt be an appropriate case for application of the doctrine. Nor in these circumstances would we find any such argument persuasive. Issue preclusion typically applies when: (1) the issue in the two proceedings is identical; (2) the issue was actually litigated and was essential to a final decision on the merits in the prior proceeding; (3) the party sought to be precluded has had a full and fair opportunity to be heard on that issue; and (4) thе party sought to be precluded was a party or was in privity with a party to the prior proceeding.
Nelson v. Emerald People’s Utility Dist.,
Plaintiff specifically pleaded in his complaint that he filed a grievance through his union in which he alleged “that his suspension and discharge were wrongful and not for just cause.” The complaint further affirmatively alleged (and thus judicially admitted) that plaintiffs position at the arbitration was that his discharge was wrongful because, among other improper bases, it was based on “his appearance to testify at the unemployment compensation hearing on behalf of Richard Cach.” The arbitrator in fact framed the issue for decision in the matter as: “Whether [plaintiffs] suspension and discharge were for just cause in accordance with the collective bargaining agreement?” As previously described, the arbitrator’s decision actually determined that issue, сoncluding that the motive was not retaliatory, but rather was based on work-related misconduct. The arbitrator further concluded that the nature of the misconduct justified suspension but not discharge.
Thus, the “ultimate fact” at issue in the arbitration proceeding and in this case is
identical
— i.e., whether plaintiffs discharge was retaliatory or was based on misconduct. That issue was essential to the arbitrator’s final determination that defendants discharged plaintiff “solely” based on misconduсt. Plaintiff does not contend that he had less than a full and fair opportunity to be heard on the issue,
7
that he was inadequately
To summarize, we hold that ORS 659.035(l)(a) does not apply to plaintiff because plaintiff did not actually testify at the Cach hearing. Defendants therefore were entitled to summary judgment on plaintiffs statutory unlawful termination claim. We further hold that plaintiff was precluded from relitigating the reasons for his discharge to prove his common-law wrongful discharge claim. Issue preclusion properly applies when, as here, arbitration takes a quasi-judicial form that affords the parties an opрortunity for a full and fair hearing before an impartial and qualified arbitrator. Defendants therefore also were entitled to summary judgment on plaintiffs wrongful discharge claim.
Affirmed on appeal and cross-appeal.
Notes
The CBA provides that the employer may discharge an employee for “just cause.” Disputes arising out of the CBA are settled through the grievance procedures outlined in Article XIV of the CBA. That section provides, in part:
“It is the intention of the parties to this Agreement that all unresolved grievanсes or disputes between said parties must be settled by their submission to a Joint Conference Board or arbitration as hereinafter provided * * *.
“* * * The parties hereto agree that the decision of the Board or Arbitrator shall be final and binding upon them.
“[The Arbitrator! shall be confined exclusively to the application or interpretation of a specific portion or provisions of the Agreement at issue between the parties.”
In their brief and pre-оral argument supplemental memorandum of authority, defendants discuss and rely on both claim and issue preclusion principles, seemingly interchangeably and without recognizing the differences between them.
Specifically, the CBA provides that plaintiffs arbitration rights under it are “confined exclusively to the application or interpretation of a specific provision or provisions of the Agreement.”
Actually, on appeal, plaintiff does not оffer any argument in response to the merits of defendants’ position. Instead, plaintiff asserts that, because the trial court did not decide the motion for summary judgment on the ground of issue preclusion, defendants cannot rely on that ground on appeal. Plaintiff is wrong.
Kinross Copper Corp. v. State of Oregon,
Before
Rueda,
earlier decisions at least had acknowledged — and arguably had held — that arbitration decisions were as binding as a judgment and, unless set aside or questioned in a proper manner, were conclusive on all matters decided; thus, they had
res judicata
effect, as the doctrine of preclusion formerly was known.
See, e.g., Jacob v. Pacific Export Lbr. Co.,
Below, plaintiff cited
Andrews v. May Department Stores,
As we previously described, the arbitration proceeding involved judicial, trial-type procedures, including presentation of testimony through sworn witnesses and cross-examination of those witnesses.
Plaintiff was represented by his union, which has fiduciary obligations to its members, and thus is in privity with them.
See generally Vaca v. Sipes,
See Stanich v. Precision Body and Paint, Inc.,