Category Archives: Arbitration

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
(subscription required)

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.

Arbitration Agreements Used by Nursing Homes: An Empirical Study and Critique of AT&T Mobility v. Concepcion

Source: Lisa Tripp, John Marshall Law School, unpublished, 2011

From the abstract:
Although the health care industry had historically been one of the fields that had not embraced pre-dispute binding arbitration agreements, that reluctance appears to be changing in at least one sector of the health care field. An examination of admission contracts used by North Carolina nursing homes and telephone survey of North Carolina nursing homes revealed that 43 percent of nursing homes now incorporate pre-dispute binding arbitration provisions into their admission contracts. All of the major nursing home chains operating in North Carolina use pre-dispute binding arbitration agreements in at least some of their facilities, while smaller operators use them sporadically….

…This is principally an empirical study, however, the United States Supreme Court decided its most recent Federal Arbitration Act case – AT&T Mobility LLC v. Concepcion – just before this paper was finalized. At first glance, Concepcion seems to have significantly impacted the power of state courts to use unconscionability to invalidate arbitration agreements. However, this interpretation may not prove accurate. Concepcion presents a very unique situation in which the opinion of a concurring justice who joined the majority opinion is so contrary to that of the putative majority opinion, that the decision may actually be a plurality and not a majority. If that is the case, Concepcion may have little precedential value beyond its particular facts.

How Much Power Does a Labor Arbitrator Have? What the Latest Court Decisions Mean for Arbitrators, Employers, Unions and National Labor Policy?

Source: Lise Gelernter, Buffalo Legal Studies Research Paper No. 2012 – 005

From the abstract:
In 2009, in 14 Penn Plaza L.L.C. v. Pyett, the Supreme Court threw a curve at the collective bargaining world by holding (5-4) that unions could waive the rights of individual bargaining unit members to go to court to resolve employment-related statutory disputes and, instead, could require that such disputes be arbitrated. Pyett raised the specter of the Court taking the final step in merging the legal treatment of arbitration in the collective bargaining world with the treatment of non-labor arbitration, despite the clear points of tension between the basic public policy goal behind labor arbitration, which is to promote industrial peace, and the basic public policy goal behind all other kinds of contractual arbitration, which is to support and encourage private parties’ freedom to contract for alternative ways in which to resolve contractual disputes.

This paper clarifies what the legal trends really are and what they mean for the ‘big picture’ in arbitration as well as for labor arbitrators and the parties who appear before them. After reviewing the history of labor and non-labor arbitration and outlining and comparing the core principles of each type of arbitration, I trace how recent arbitration jurisprudence has crossed the historical divide between labor and commercial arbitration and explore the problems that this creates for labor arbitration as an institution. The trend towards the convergence of labor and non-labor arbitration is not unstoppable, however, and I highlight the ways in which the courts have continued to view arbitration under collective bargaining agreements and non-labor contracts as dichotomous systems with different rules. I also discuss how to deal with the reality of the new hybrid commercial/labor arbitrator that Pyett appears to contemplate and address the ways in which employers, employees and unions can help to retain the procedural and collective bargaining benefits of labor arbitration.

The Changing Nature of Work, Arbitration, and Pensions

Source: Perspectives on Work, Vol. 14 nos. 1-2, 2010
(subscription required)

In our Changing Nature of Work Series, we have two articles on workplace bullying and one on control and monitoring at work. The issue is rich with feature articles sure to be of interest…. The other features from the worlds of ideas and action include the following topics: unions and the arbitration of statutory rights, interest arbitration, pensions, wage theft, and diversity affinity groups.

Articles include:
The Changing Nature Of Work: Bullying At Work And Control And Monitoring At Work:
Concerns about Bullying at Work as Heard by Organizational Ombudsmen
Lydia Cummings and Mary Rowe

As Workplace Bullying Enters the Mainstream of American Employment Relations,
Will Law and Public Policy Follow?
David C. Yamada

Electronic Monitoring and Control at Work: What Is It Good For?
Rosemary Batt

Unions and the Arbitration of Statutory Rights
Hoyt N. Wheeler

Interest Arbitration–Some Timely Thoughts
F. Donal O’Brien and Nancy E. Peace

The Solution to the Pension Crisis Is More Pensions
Teresa Ghilarducci

Other Models for Labor-Management Dispute Resolution: The Wisconsin Experiment

Source: Christine D. Ver Ploeg, William Mitchell Legal Studies Research Paper No. 2010-12, May 13, 2010

From the abstract:
Twenty-two years ago leaders from the Wisconsin Department of Labor Relations and leaders from the Wisconsin State Employees Union, AFSCME Council 24, agreed that they needed a more efficient way to deal with their backlog of grievances, many of which involved routine issues and did not require a precedential decision. To that end they mutually crafted two special arbitration procedures: the umpire arbitration process and the expedited arbitration process. In the intervening years the parties have resolved a large portion of their grievances using these special procedures, and today relatively few grievances are taken to conventional arbitration.

Given this extended and extensive track record, the parties were interested in now more closely examining their experience to determine how the advocates who have been in the trenches and use these special processes evaluate them and how they might be improved. To that end arbitrators prepared a ninety-question anonymous survey to which an advocate could respond with a quantifiable score and could also offer additional related thoughts.

All of the advocates – who among themselves had one to thirty-six years of labor relations experience – responded to this survey. Results revealed that both union and management advocates are highly satisfied with the umpire arbitration and expedited arbitration processes. Advocates suggested very few changes and none would support eliminating these special procedures as options.

In short, it is fair to say that the parties have realized their goal of resolving select grievances more efficiently while at the same time preserving fairness and effectiveness. These special arbitration procedures have worked well, and in today’s even more challenging economy other parties with substantial grievance backlogs could learn much from the Wisconsin experience.

The Long Haul Effects of Interest Arbitration: The Case of New York State’s Taylor Law

Source: Thomas Kochan, David B. Lipsky, Mary Newhart, and Alan Benson, Industrial & Labor Relations Review, Vol. 63, No. 4, July 2010
(subscription required)

From the abstract:
The authors examine debates about the effects of mandatory interest arbitration on police and firefighters in New York State under the Taylor Law from 1974 to 2007. Comparing experience with interest arbitration in the first three years after the law was adopted with experiences from 1995 to 2007, the authors find that no strikes occurred under arbitration and that rates of dependence on arbitration declined considerably. Moreover, the effectiveness of mediation prior to and during arbitration remained high, the tripartite arbitration structure continued to foster discussion of options for resolution among arbitration panel members, and wage increases awarded under arbitration matched those negotiated voluntarily by the parties. Econometric estimates of the effects of interest arbitration on wage changes in a national sample suggest wage increases differed little in states with arbitration from those without it. The authors therefore propose a role for interest arbitration in national labor policy.