interpretation for which the parties bargained. Much like a referee's pass interference call, the key is not necessarily the correctness of the decision, but its finality. Without a final resolution of the matter, play cannot proceed.
In order to keep the game of labor-management relations going, courts ordinarily defer to arbitrator's decisions. The arbitrator's award is legitimate so long as it "draws its essence from the collective bargaining agreement," but may be set aside if it does not draw its essence from the agreement. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960). A mere ambiguity in the arbitrator's decision is not adequate to demonstrate that the arbitrator exceeded his or her authority Id. at 597-98. In fact, the scope of judicial review of an arbitrator's decision is the "narrowest known in the law." Southern Pacific Transp. Co. v. United Transp. Union, 789 F. Supp. 9, 13 (D.D.C. 1992).
Undaunted by this field position, the defendants' first play is to argue that the arbitrator's award is not legitimate because it did not draw its essence from the collective bargaining agreement. This argument does little to advance the defendants toward the end zone. An award fails to draw its essence from a contract if it is "based on external legal sources, wholly without regard to the terms of the parties' contract." American Postal Workers Union v. United States Postal Service, 252 U.S. App. D.C. 169, 789 F.2d 1, 8 (D.C. Cir. 1986). Here, the arbitrator looked to external legal sources, but did so only in order to interpret the "wherever and whenever legal" provision of the collective bargaining agreement. Since the arbitrator did not look directly to external legal sources, but did so in order to interpret a provision of the agreement, the arbitrator's decision in fact draws its essence from the agreement. See United States Postal Service v. National Ass'n of Letter Carriers, 252 U.S. App. D.C. 186, 789 F.2d 18, 20 (D.C. Cir. 1986) (per curiam) (arbitrator's decision drew essence from collective bargaining agreement when arbitrator looked to Tennessee statute pursuant to language in agreement requiring management's decisions to be consistent with applicable law). Thus, this argument fails to gain any yardage for the defendants.
The defendants' next challenge to the arbitrator's decision also falls short - an incomplete pass. The defendants argue that the arbitrator's decision concerning the meaning of the term "wherever and whenever legal" in the CBA merits no deference because the arbitrator implausibly and incorrectly interpreted the Supreme Court's Mobil Oil decision. The District of Columbia Circuit has indicated that it would not disturb an arbitrator's plausible reading that a contract incorporated state law. National Ass'n of Letter Carriers, 789 F.2d at 20. The defendants argue that such deference is not appropriate here because the arbitrator's award was implausible.
Even assuming that the arbitrator's interpretation of Mobil Oil was incorrect, it was not implausible. The arbitrator based his decision on the fact that football games are the "raison d'etre" of the relationship between the Redskins and the team's players. The arbitrator drew this French phrase directly from Justice Marshall's majority opinion. Although the French may not know much about American football, the arbitrator's reliance on the phrase in making his decision was not implausible; he drew directly upon language in a Supreme Court decision. Thus, as the defendants return to the huddle, their prospects for victory look bleak.
The defendants next turn to the "Hail Mary" of challenges to an arbitrator's decision, public policy. Decisions of arbitrators are given deference even if the arbitrator makes errors of fact and law, unless the arbitrator's award "compels the violation of law or conduct contrary to accepted public policy." Washington-Baltimore Newspaper Guild, Local 35 v. The Washington Post Company, 143 U.S. App. D.C. 210, 442 F.2d 1234, 1239 (D.C. Cir. 1971) (quoting Gulf States Telephone Company v. Local 1692, International Brotherhood of Electrical Workers, 416 F.2d 198, 201 (5th Cir. 1969)). This is consistent with the Supreme Court's statement that "a court may not enforce a collective-bargaining agreement that is contrary to public policy." W.R. Grace & Co., 461 U.S. at 766. In determining whether a clear policy exists, courts look to "the laws and legal precedents" not "general considerations of supposed public interests." Id. (quoting Muschany v. United States, 324 U.S. 49, 66, 89 L. Ed. 744, 65 S. Ct. 442 (1945)). Such public policy arguments, much like Hail Mary passes, are usually unsuccessful.
Despite the difficulty of creating a successful public policy argument, the defendants present a credible claim based upon the law of Virginia. The Virginia Code states that "it is hereby declared to be the public policy of Virginia that the right to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization." Va. Code Ann. § 40.1-58. Section 40.1-62 of the Virginia Code prohibits employers from requiring employees to pay union dues or similar fees to labor unions. A violation of this prohibition is a misdemeanor. Id. § 40.1-69. If these laws apply to the Redskins, enforcing the agency shop provision of the CBA would violate Virginia's law and public policy.
The difficulty presented by the defendants' argument is that it is intertwined with the merits. If the arbitrator was correct in finding that the players' job situs is the District of Columbia, the Court should defer to his award because it does not violate Virginia's public policy. However, if the arbitrator was incorrect, the Court should not defer to the award because it violates Virginia's public policy. The only reasonable way to determine the amount of deference to give to the arbitrator is to review the merits of the arbitrator's decision to determine whether he made an error of law that compels the defendants to violate Virginia law and public policy. This is the route that the District of Columbia Circuit took in Washington Post v. Washington-Baltimore Newspaper Guild, Local 35, 252 U.S. App. D.C. 48, 787 F.2d 604, 606 (D.C. Cir. 1985). In that case, the plaintiff challenged a remedy ordered by an arbitrator on the grounds that it violated a provision of the Labor Management Relations Act, 29 U.S.C. § 186. The Washington Post court recognized that arbitrator's awards are normally entitled to significant deference, but noted that deference is not appropriate where an award contemplates a violation of law. It stated that in circumstances where legal interpretation is necessary, "we are informed by the views of the arbitrator . . ., but we approach the task with an awareness that the final responsibility is solely our own." 787 F.2d at 606. The Court went on to interpret the statute and found that the arbitrator's award was lawful. Id. at 609. Guided by this precedent, the Court will not punt this issue to the arbitrator, but will follow the same course as Washington Post and review the merits of the arbitrator's decision de novo in order to determine whether or not it compels a violation of Virginia law. By articulating a credible public policy argument, the defendants have completed their Hail Mary pass.
Nevertheless, to win the game by succeeding on the merits, the defendants must persuade the Court that the arbitrator incorrectly interpreted Mobil Oil.
II. Determining the Job Situs of Redskins' Players Under Mobil Oil
An analysis of the arbitrator's decision must start with the United States Supreme Court's decision in Mobil Oil. In Mobil Oil, an oil company filed a lawsuit seeking to invalidate an agency shop provision in its CBA with unlicensed seamen who worked on its oil tankers. 426 U.S. at 410. The company argued that the provision was invalid because it violated Texas' right-to-work laws. Id. The sole issue before the Supreme Court was whether the right-to-work laws of Texas could void the agency shop provision of the CBA. Id. This determination involved an interpretation of §§ 8(a)(3) and 14(b) of the National Labor Relations Act.
In examining the issue, the Court considered three possible methods for evaluating the contacts between the state and the employment relationship: (1) applying the law of the employee's principal job situs; (2) evaluating the whole employment relationship to determine whether a state had sufficient contacts with the employment relationship; and (3) applying the law of the jurisdiction where the hiring process took place. Id. at 413-14. The Court held that:
In light of what we understand Congress' concerns in both § 8(a)(3) and § 14(b) to have been, we conclude that it is the employees' predominant job situs rather than a generalized weighing of factors or the place of hiring that triggers the operation of § 14(b). We hold that under § 14(b), right-to-work laws cannot void agreements permitted by § 8(a)(3) when the situs at which all the employees covered by the agreement perform most of their work is located outside of a state having such laws.
Id. at 414. Because most of the employment work of the seamen was performed on the high seas, the Court found that Texas' right to work laws did not apply to them. Id. at 420.
In the course of reaching its conclusion, the Court rejected the tests that would require courts to evaluate contacts or look to the location of the hiring process. For example, the Court rejected the latter test because § 14(b) addressed concerns related to the post-hiring employment relationship, not the hiring process. Id. at 417. In emphasizing that § 14(b) is concerned with the post-hiring relationship as opposed to the place of hiring, the Court stated that:
It is evident, then, that § l4(b)'s primary concern is with state regulation of the post-hiring employer-employee-union relationship. And the center of the post-hiring relationship is the job situs, the place where the work that is the very raison d'etre of the relationship is performed."