Category Archives: Arbitration

Legal Challenges to Interest Arbitration: Evidence From Canada

Source: Joseph B. Rose, Labor Law Journal, Vol. 66 no. 3, Fall 2015
(subscription required)

Although interest arbitration in Canada is used in a variety of contexts, its widest application involves the settlement of disputes in essential services. For groups such as police, firefighters and hospital workers compulsory interest arbitration is a substitute for the right to strike. In some sectors of the economy where strikes are permitted, but could potentially pose a hardship or significant inconvenience, senior governments have intervened or threatened to intervene to preempt strike action or order striking workers back to work. In these circumstances, the disputes are usually referred to binding arbitration.

As in the United States, economic and political pressures have posed a threat to the efficacy of interest arbitration and contributed to calls to reform interest arbitration schemes in Canada. This paper examines recent legal developments involving the regulation of interest arbitration and assesses the relative strengths and weaknesses of these approaches to dispute resolution. The first section examines some attributes of an effective interest arbitration system and briefly reviews several controversies surrounding interest arbitration. Next, we assess the impact of recent legislation on interest arbitration. The ascendancy of government austerity policies following the global economic crisis has led to restrictive labor laws regulating public sector bargaining and limitations on the right to strike in the private sector. The impact of government intervention focuses first on temporal limits (wage restraint laws and policies) and permanent changes to interest arbitration statutes. This is followed by referrals to interest arbitration associated with ad hoc, back-to-work laws. Changes affecting interest arbitration have included format (conventional arbitration or final offer selection), the selection process for arbitrators and arbitral criteria. In the final section, we consider both the potential and future of interest arbitration….

Mediation, Arbitration, and Alternative Dispute Resolution (ADR)

Source: Carrie Menkel-Meadow, International Encyclopedia of the Social and Behavioral Sciences, Elsevier Ltd. 2015

From the abstract:
This entry for the International Encyclopedia of the Social & Behavioral Sciences, 2nd ed. defines and describes modern processes of dispute resolution beyond court adjudication, including negotiation, mediation, arbitration and a variety of new hybrid forms of dispute resolution (e.g. med-arb, summary jury trial, public policy consensus building) that are sued in both public and private disputes. The article reviews the history and theory behind these processes, outlining quantitative and qualitative reasons for their use and then reviews a variety of controversies association with their use, including the privatization of dispute resolution, difficulty in evaluating their effectiveness and power imbalances in their use. The aspirational qualities of process pluralism are contrasted to the realities of their use and cooptation in some contexts, such as when powerful private and public parties dictate the form that dispute resolution takes, without party consent.

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights

Source: Judith Resnik, Yale Law School, Public Law Research Paper No. 543, April 30, 2015

From the abstract:
Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges’ activities to those of other dispute resolution providers. From 1925 until the mid-1980s, obligations to arbitrate rested on consent. Thereafter, the U.S. Supreme Court shifted course and enforced court and class action waivers mandated when consumers purchased goods and employees applied for jobs. To explain the legitimacy of precluding court access for federal and state claims, the Court developed new rationales — that arbitration had procedural advantages over adjudication, and that arbitration was an effective enforcement mechanism to “vindicate” public rights.

The result has been the mass production of arbitration clauses without a mass of arbitrations. Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so — rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights. The diffusion of disputes to a range of private, unknowable alternative adjudicators also violates the constitutional protections accorded to the public — endowed with the right to observe state-empowered decision makers as they impose binding outcomes on disputants. Closed processes preclude the public from assessing the qualities of what gains the force of law and debating what law ought to require. The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of courts.

Terminology in Labor Arbitration: What Every New Advocate Needs to Learn

Source: Jay E. Grenig and Rocco M. Scanza, Dispute Resolution Journal, Vol. 70 no. 1, 2015
(subscription required)

Labor Arbitration is a vitally important method of resolving labor-management disputes. It enjoys a long and rich history and in many respects has served as the benchmark in establishing standards for all forms of arbitration to ensure that fundamental due process and fairness are paramount concerns to arbitrators and advocates alike. Labor Arbitration also has its own terminology, and for those who are new to the process, some of its terms may not be familiar or immediately understood. The following Glossary is intended to list many of the most common terms in the unique and important field of labor arbitration….

Thrown Out of Court – How corporations became people you can’t sue.

Source: Lina Khan, Washington Monthly, June/July/August 2014

Late last year a massive data hack at Target exposed as many as 110 million consumers around the country to identity theft and fraud. As details of its lax computer security oversight came to light, customers whose passwords and credit card numbers had been stolen banded together to file dozens of class-action lawsuits against the mega-chain-store company. A judge presiding over a consolidated suit will now sort out how much damage was done and how much Target may owe the victims of its negligence. As the case proceeds, documents and testimony pertaining to how the breach occurred will become part of the public record.

All this may seem like an archetypical story of our times, combining corporate misconduct, cyber-crime, and high-stakes litigation. But for those who follow the cutting edge of corporate law, a central part of this saga is almost antiquarian: the part where Target must actually face its accusers in court and the public gets to know what went awry and whether justice gets done.

Two recent U.S. Supreme Court rulings—AT&T Mobility v. Concepcion and American Express v. Italian Colors—have deeply undercut these centuries-old public rights, by empowering businesses to avoid any threat of private lawsuits or class actions. The decisions culminate a thirty-year trend during which the judiciary, including initially some prominent liberal jurists, has moved to eliminate courts as a means for ordinary Americans to uphold their rights against companies. The result is a world where corporations can evade accountability and effectively skirt swaths of law, pushing their growing power over their consumers and employees past a tipping point.

To understand this new legal environment, consider, by contrast, what would have happened if Amazon had exposed its 215 million customer accounts to a security breach similar to Target’s. Since Amazon has taken advantage of the Court’s recent decisions, even Amazon users whose bank accounts were wiped clean as a direct result of the hack would not be able to take the company to court. …. Following the 2011 and 2013 Supreme Court rulings, dozens of other giant corporations—from Comcast and Wells Fargo to Ticketmaster and Dropbox—have secured the same legal immunity. So have companies ranging from airlines, gyms, payday lenders, and nursing homes, which have quietly rewritten the fine print of their contracts with consumers to include a shield from lawsuits and class actions. Meanwhile, businesses including Goldman Sachs, Northrop Grumman, P. F. Chang’s, and Uber have tucked similar clauses into their contracts with workers…..

Use Of Collective Bargaining History in Arbitration

Source: Tom Barnes, Dispute Resolution Journal, Volume 68, No. 4, 2013
(subscription required)

It is somewhat ironic that while all collective bargaining agreements (“CBAs”) have their genesis in bargaining history, the origins and evolution of a collective bargaining provision is not often offered evidence in an arbitration hearing. As an advocate for nearly 40 years, I seldom offered such testimony. That may emanate from the fact that 70% of my cases were discharge or discipline matters under just cause provisions and bargaining history is usually of little significance. This may be due to a variety of other factors, viz: the authors are not available to testify; the origins are forgotten by succeeding negotiators on both sides of the table; bargaining notes, much less minutes, were not kept or are indiscernible . . . the sum of which is that the collective history is lost. With that lost history, any chance of demonstrating the real intent of the parties or disabusing an arbitrator of what appears to be plain meaning of a CBA provision evaporates as well. This is not a law review article. These are observations from four decades of negotiating labor agreements for both management and labor. That was in the setting of where the “sausage was being made” and thus these are reflections not from the flight deck but the bilge deck. In that connection, fine points of evidence such as relevancy, admissibility, hearsay, attorney-client and work product privileges, and parol evidence, all relevant in the admission of bargaining history, are not the focus. Rather, the practical aspects of how CBAs are negotiated and how arbitrators may consider such recorded labor history, is the focal point.

The NLRB v. The Courts: Showdown Over the Right to Collective Action in Workplace Disputes

Source: Stephanie M. Greene, Christine Neylon O’Brien, American Business Law Journal, Vol. 51, No. 4, 2014

From the abstract:
When employees sign employment agreements, they are most likely not concerned about a mandatory arbitration provision forbidding them from engaging in class or collective actions. The United States Supreme Court has shown a strong preference for enforcing arbitration agreements, even when they foreclose rights to collective action. The National Labor Relations Board, however, has found that individual employment agreements may not prevent employees from engaging in protected concerted activity in both union and nonunion environments. The Board ruled in D.R. Horton that individual, as opposed to collectively bargained, arbitration agreements that are a condition of employment, may not bar collective action through both arbitral and judicial forums. The Board reasons that Section 7 of the National Labor Relations Act mandates the preservation of rights to collective activity, and that the Supreme Court’s strong preference for individual arbitration must accommodate the text and legislative history of the Act. Despite the Board’s decision, most federal courts have declined to strike down mandatory arbitration agreements that foreclose collective action, even when it means undermining rights under federal wage and hour statutes as well as employees’ NLRA rights. The authors support the NLRB’s interpretation as the correct and preferred framework for analysis of NLRA challenges to forced individual arbitration. The authors maintain that the courts should recognize that the Board’s decision is consistent with Supreme Court precedent and adopt the reasoning of the NLRB to preserve substantive federal statutory rights of private sector employees.

Arbitration Under Siege: Reforming Consumer and Employment Arbitration and Class Actions

Source: George Padis, Texas Law Review, Vol. 91, 2013

From the abstract:
In this Note, Mr. Padis argues that binding arbitration clauses in consumer and employment contracts should continue to be enforced because arbitration provides employees and consumers important advantages. At the same time, however, consumer and employment arbitration must be seriously reformed. The Note concludes that the reform should be sensitive to the different concerns that arise from different types of disputes, instead of the blunderbuss approaches that have emerged out of Congress and the Supreme Court.

Symposium 2012: The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve, and How We Can Learn from the Private Sector

Source: Ohio State Journal on Dispute Resolution, Vol. 28 no. 1, 2013
(subscription required)

• Considering Final Offer Arbitration to Resolve Public Sector Impasses in Times of Concession Bargaining – by Michael Carrell & Richard Bales
• The Importance of Impasse Resolution Procedures to Recent Revisions of Wisconsin Public Sector Labor Law – by Howard S. Bellman
• The Use of Alternative Dispute Resolution Techniques to Resolve Public Sector Bargaining Disputes – by Charles B. Craver
• Unions and ADR: The Relationship between Labor Unions and Workplace Dispute Resolution in U.S. Corporations – by Ariel C. Avgar, J. Ryan Lamare, David B. Lipsky, & Abhishek Gupta
• Innovation and Transformation in Public Sector Employment Relations: Future Prospects on a Contested Terrain – by Joel Cutcher-Gershenfeld & Saul A. Rubinstein
• Two Models of Interest Arbitration – by Martin H. Malin
• Employing the Presidential Executive Order and the Law to Provide Integrated Conflict Management Systems and ADR Processes: The Proposed National Employment Dispute Resolution Act (NEDRA) – by Lamont E. Stallworth & Daniel J. Kaspar

Employee Representation in Non-Union Firms: An Overview

Source: Paul J. Gollan, David Lewin, Industrial Relations: A Journal of Economy and Society, Vol. 52 supplement 1, 2012
(subscription required)

From the abstract:
For many decades, employee representation and voice in the employment relationship were manifested mainly through unionism and collective bargaining, but that is no longer the case. Today most employees do not belong to unions, but they may be represented and exercise voice through a variety of other mechanisms and arrangements. This paper provides an overview of a special issue of Industrial Relations containing eight papers that analyze various types of non-union employee representation. These papers feature a wide variety of research designs as well as industry, company, and employee settings. Empirically, they draw upon data from the United States, the UK, Canada, and Australia. As a set, these papers provide the most comprehensive knowledge to date of employee representation in non-union firms, and also offer recommendations for future research to further enhance such knowledge.

Articles include:
The Comparative Advantage of Non-Union Voice in Britain, 1980-2004 by Alex Bryson, Paul Willman, Rafael Gomez and Tobias Kretschmer

Individual Voice in Employment Relationships: A Comparison under Different Forms of Workplace Representation by David Marsden

Participation Versus Procedures in Non-Union Dispute Resolution by Alexander J. S. Colvin

Where Informality Really Matters: Patterns of Employee Involvement and Participation (EIP) in a Non-Union Firm by Mick Marchington and Jane Suter

The Effect of Gender on Awards in Employment Arbitration Cases: The Experience in the Securities Industry by David B. Lipsky, J. Ryan Lamare and Abhishek Gupta

Keeping the Commitment Model in the Air during Turbulent Times: Employee Involvement at Delta Air Lines by Bruce E. Kaufman

Does Non-Union Employee Representation Act as a Complement or Substitute to Union Voice? Evidence from Canada and the United States by Michele Campolieti, Rafael Gomez and Morley Gunderson

The Challenges of a Representation Gap: Australian Experiments in Promoting Industrial Citizenship by Troy Sarina