Category Archives: Arbitration

Use Of Collective Bargaining History in Arbitration

Source: Tom Barnes, Dispute Resolution Journal, Volume 68, No. 4, 2013
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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
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• 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
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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

The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush

Source: Henry Drummonds, Willamette Law Review, Vol. 49, 2013

From the abstract:
Prompted by a dispute over a labor arbitrator’s controversial reinstatement award in favor of an Oregon police officer who fatally shot a suicidal black man in the back after the man’s family had called the police for help, this article argues for a revitalized public policy exception to arbitral award enforcement. In this view, the public policy exception sometimes suffers from too cribbed an interpretation by both management and union lawyers, arbitrators, and reviewing courts and labor boards. At the same time a revitalized public policy exception must be applied judiciously so as not to undermine the bedrock labor relations policy embodied in the Steelworkers Trilogy favoring final and binding arbitration of workplace disputes in the unionized sector. Drawing on lessons from a close reading of the three leading public policy decisions of the United States Supreme Court — herein dubbed the “Public Policy Trilogy” — the article shows how reviewing bodies SHOULD review de novo the question whether reinstatement REMEDIES, and not the underlying employee conduct, comply with clearly defined public policies. The Steelworkers Trilogy can be accommodated by confining the public policy review to the question of reinstatement — as distinct from the question whether the arbitral finding of a contract violation draws its “essence” from the collective bargaining agreement — and further, by basing the public policy review on facts found by the arbitrator in accordance with the parties’ agreement to submit their dispute to “final and binding” arbitration. These principles derive from a close reading of the Supreme Court’s holdings and discussion in the Public Policy Trilogy. The article shows how public sector cases in the private sector, and in the public sector in Oregon, Illinois, and Pennsylvania, while largely consistent with this more nuanced view of the Trilogy, have occasionally strayed from these teachings and too narrowly applied the public policy exception.

Symposium: Public Employment in Times of Crisis

Source: ABA Journal of Labor and Employment Law, Volume 27, Number 2, Winter 2012
(scroll down)

From the editor’s page:
…The 2011 legislatures acted in the midst of some of the most difficult economic conditions for state and local governments in many years. Politicians enlisted the support of taxpaying opponents of government spending, arguing that public workers are overpaid, underworked, and far too secure in their employment. Critics, however, argued that Republican officials took advantage of economic conditions to enact restrictions for political reasons, including a desire to weaken unions that have been strong supporters of the Democratic Party. The articles in this issue, written by speakers at a symposium entitled Public Employment in Times of Crisis, sponsored by the Labor Law Group, the University of Richmond School of Law and Center for Leadership in Education, and the American Constitution Society, shed light on the intensive debate about the legal and policy issues relating to public employment….

Articles include:
• The Legislative Upheaval in Public-Sector Labor Law: A Search for Common Elements
By Martin H. Malin
• The Constitutional Dimension of Unilateral Change in Public-Sector Collective Bargaining
By Stephen F. Befort
• Public Pension Benefits Under Siege: Does State Law Facilitate or Block Recent Efforts to Cut the Pension Benefits of Public Servants?
By Eric M. Madiar
• Discipline and Discharge of Public-Sector Employees: An Empirical Study of Arbitration Awards
By Laura J. Cooper
• The Impact of Employee Performance in Adverse Actions in the Federal Sector
By Susan Tsui Grundmann
• The Effect of Pension Accounting Rules on Public-Private Pay Comparisons
By Andrew G. Biggs and Jason Richwine
• State and Local Public Employees: Are They Overcompensated?
By Jeffrey H. Keefe
• Evolution of Public-Sector Retirement Plans: Crisis, Challenges, and Change
By Robert Clark
• The Sheathed Sword: Public-Sector Union Efficacy in Non-Bargaining States
By Ann C. Hodges and William Warwick
• The Wisconsin Public-Sector Labor Dispute of 2011
By Paul M. Secunda
• Untested Assumptions in NLRB Proceedings
By Phoebe Taurick
UR School of Law – Public Sector Employment in Times of Crisis Conference – Panel 1a: Public Employee Compensation – Public Sector Pensions in Crisis

UR School of Law – Public Sector Employment in Times of Crisis Conference – Panel 1b: Public Employee Compensation : Excessive or Inadequate?
UR School of Law – Public Sector Employment in Times of Crisis Conference – Panel 2: Collective Bargaining, Existing Frameworks and Recent Changes
UR School of Law – Public Sector Employment in Times of Crisis Conference – Panel 3: The Constitutional Framework for Public Employment
UR School of Law – Public Sector Employment in Times of Crisis Conference – Panel 4: Education Reform: The Role of Teachers
UR School of Law – Public Sector Employment in Times of Crisis Conference – Panel 5: Public Employee Job Security and Termination

Symposium: Public Sector Labor Law At The Crossroads

Source: University Of Toledo Law Review, Vol. 43 no. 3, Spring 2012

Articles include:
The Rise and Fall of SB-5: The Rejection of an Anti-Union Law in Historical and Political Context, by Joseph E. Slater

Privatizing Government Services in the Era of ALEC and the Great Recession, by Ellen Dannin

Compensation, Employment Security, and the Economics of Public Sector Labor Law, by Matthew Dimick

Teaching for America: Unions and Academic Freedom, by Charlotte Garden

The Chill of a Wintry Light? Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment, by William A. Herbert

Southern Solutions for Wisconsin Woes, by Anne C. Hodges

Binding Arbitration as a Means of Settling Public Sector Union Contracts: A Process with an Image Problem?, by Michelle T. Sullivan

Triborough and interest arbitration: a balanced approach to collective negotiations

Source: Alan M. Klinger, Stroock Reports – Public Employee Law, Summer 2012
(registration required)

…New York, long a bastion of public sector strength, proved not immune to anti-union sentiment with the recent legislative adoption of Tier 6 limits on pension levels for new hires. Now, labor’s opponents are targeting the Taylor Law, the statute enacted to maintain balanced labor relations throughout the state. Critics seem particularly intent on repeal, or at least reform, of the Triborough Amendment. This provision of the Taylor Law forbids public employers from unilaterally changing the terms and conditions of employment during negotiations after the existing contract has expired, allowing workers to “benefit” from the terms of the previous contract until a new one is reached. (As discussed below, absent from the discourse regarding the Triborough Amendment has been what unions agreed to forego in return for this protection.) Critics also are opposed to a provision of the Taylor Law that compels police officers, firefighters, and other uniformed personnel to resolve impasse via interest arbitration. They not only object to the provision’s interaction with Triborough, which ensures that employers cannot compel unions to enter into arbitration before there is genuine impasse, but also argue that interest arbitration should be more favorable to employers….

…These critics, however, ignore the delicate balance at the heart of the Taylor Law: protecting the public against the disruption of public services while simultaneously protecting the rights of public employees. They “forget” that the Taylor Law strips public employees of their essential democratic right to strike, making Triborough and interest arbitration essential protections during the bargaining process. They further fail to account for empirical evidence of how collective negotiations actually function. Ultimately, their myopic focus on making bargaining outcomes less expensive threatens to destabilize labor relations throughout the state….

Outsourcing American Civil Justice: Mandatory Arbitration Clauses In Consumer And Employment Contracts

Source: Judge Craig Smith and Judge Eric V. Moye, Texas Tech Law Review, Winter 2012
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The Seventh Amendment right to a jury trial is vanishing before our very eyes. Many sources point to the increased reliance upon alternative dispute resolution, and mandatory arbitration specifically, as an explanation for this trend. As practicing attorneys, we never paid much attention to the increasing impact arbitration was having on our civil justice system. Since taking the bench, however, we have witnessed an alarming increase in the use of contract clauses mandating arbitration as a mechanism to take the resolution of civil conflicts away from citizen-juries and place it instead into the hands of professional arbitrators. The practical effect of enforcing these provisions is a paradigmatic shift in our civil justice system-no longer is it based upon the fundamental right of trial by jury. A person cannot open a bank account, obtain a credit card, buy a car, or use a cell phone without contracting away the Seventh Amendment right to a jury trial. In reality, a person must yield his or her very access to the courts in order to meaningfully participate in our modern society. Slowly but surely, the widespread enforcement of mandatory arbitration clauses has chipped away at the basic tenets of contract law and of the fundamental freedoms upon which our nation was founded: the right to a jury trial in civil cases.