Originally from the AAA Yearbook on Arbitration and the Law - 30th Edition

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7.01 Statutory Deadlines for Submission of Application to Vacate or Modify Award

United Food & Commercial Workers Int’l Union, Local No. 7 v. King Soopers, Inc., 743 F.3d 1310 (10th Cir. 2014)

The employer’s failure to bring an action to vacate the arbitration award within 90 days barred the employer from raising defenses that could have been raised as grounds to vacate the award in a subsequent confirmation proceeding.

An employee filed a grievance against King Soopers based on a hostile work environment. The arbitrator case concluded that the dispute was arbitrable and found in favor of the employee. King Soopers neither complied with the award nor sought to vacate it. After expiration of the time to seek to vacate the award, the union filed for enforcement of the award. King Soopers answered, arguing that the award was unenforceable.

Based on circuit precedent and decisions by other circuits, the court ruled that King Soopers’ affirmative defenses were time-barred because they were not raised as the basis for an action to vacate the award within the 90-day limitations period under Colorado statute. [The court nevertheless declined to enforce the award for other reasons.] There is nothing irregular about ruling that a potential meritorious argument is barred by delay in raising it. 

Citations and References:

a. Sheet Metal Workers International Ass’n, Local Union No. 36 v. Systemaire, Inc., 241 F.3d 972, 975 (8th Cir. 2001) (refraining from addressing the merits of defenses to an award based solely on the untimeliness of the challenge).

b. Sullivan v. Lemoncello, 36 F.3d 676, 681 (7th Cir. 1994) (holding that Lemoncello was barred from attacking the awards because he had not challenged them within the required time period).

c. James Valley Grain v. David, 802 N.W.2d 158 (N.D. 2011) (motion to confirm arbitration award does not extend the 90-day period governing a motion to vacate an arbitration award).