Case Type:
Case Status:
Affirmed in part and Reversed in part
16-56643 (9th Circuit, Sep 26,2018) Published
9th Cir. affirmed in part and reversed in part ruling of district court (SD Cal.). 9th Circuit agreed employer did not waive right to arbitrate by waiting to seek to compel arbitration. Private whistleblower retaliation claims under the Aviation Investment and Reform Act for the 21st Century ("AIR21") could be arbitrated, and arbitration not barred by statute of limitations or by Federal Arbitration Act. 9th Cir. reversed as to order compelling arbitration against union. Union was not a party to arbitration provision and was not otherwise entitled to enforce provision under agency law.
Procedural context:
District court (SD Cal.) granted defendant's motion to compel arbitration. Plaintiff appealed to 9th Circuit.
Former employee aircraft maintenance technician sued employer and union for whistleblower retaliation claim under the Wendell H. Ford Aviation Investment and Reform Act ("AIR21") and employer reinstated employee under settlement that included arbitration provision. In following years, employer repeatedly disciplined employee and then terminated him. Employee filed arbitration proceeding again alleging improper whistleblower retaliation, and commenced parallel proceeding with Department of Labor (DOL). Employer then filed bankruptcy, staying arbitration, but not DOL action. DOL made determination of no liability and former employee appealed to ALJ. ALJ stayed ruling against employer, but not union. ALJ dismissed claim against union. Employee appealed to Administrative Review Board (ARB). ARB reversed dismissal and remanded back to ALJ. Stay was lifted in employer's bankruptcy. Employer prevailed in arbitration, and US District Court for SD Cal. affirmed award. Employee appealed to 9th Circuit and 9th Circuit affirmed. In ALJ proceeding, employer filed motion to compel arbitration. ALJ granted motion, and employee appealed to ARB. ARB reversed. Employer commenced new arbitration and filed separate suit in US District Court for SD of California. Union brought similar action. Both employer and union sought to compel arbitration. US District Court granted motions over employee's objections and employee appealed to 9th Circuit.
Berzon, Smith, Castel

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