Source: Alan M. Klinger, Stroock Reports – Public Employee Law, Summer 2012
…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….
Source: Judge Craig Smith and Judge Eric V. Moye, Texas Tech Law Review, Winter 2012
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.
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.
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.
Source: Perspectives on Work, Vol. 14 nos. 1-2, 2010
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.
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?
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
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.
Source: Thomas Kochan, David B. Lipsky, Mary Newhart, and Alan Benson, Industrial & Labor Relations Review, Vol. 63, No. 4, July 2010
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.
Source: Matt Wessler, Public Justice, Access to Justice Update, 2010
On April 26, the U.S. Supreme Court heard argument in a watershed arbitration case, Rent-A-Center v. Jackson, that poses significant questions about the scope and meaning of the Federal Arbitration Act (“FAA”), the relationship between courts and arbitration, and the basic ability of consumers and employees to gain access to courts. The issue – which seemed to puzzle and, at times, frustrate the Court – was whether an arbitration agreement that specifies that any challenge to the validity or enforceability of the arbitration agreement must be decided by an arbitrator requires a court, when faced with an unconscionability challenge to the arbitration agreement itself, to enforce the agreement and send the parties to arbitration for resolution of that unconscionability challenge.
Source: Catherine Fisk, Adam R. Pulver, UC Irvine School of Law Research Paper No. 2010-4
From the abstract:
One provision of the proposed Employee Free Choice Act (EFCA) would address the catastrophic underenforcement of the statutory right of employees to bargain, which results in half of all newly certified or recognized unions failing to secure a first collective bargaining agreement. It is an important reform for a seriously dysfunctional aspect of federal labor law and it will be a substantial improvement over the status quo. While political and media conversation surrounding EFCA has largely focused on the changing the process by which unions are selected, the provision for first contract arbitration is as important to the protection of the right to unionize.
This Article argues that some form of mandatory interest arbitration for first contract disputes is an appropriate means of stabilizing employee-management relations given the extraordinary difficulties that unions currently experience in negotiating first contracts, the weakness of current NLRB and economic remedies, and the rippling effects of these difficulties on nascent unions. The Article surveys the empirical literature on the operation of interest arbitration in the public and private sector in the United States and in Canada and demonstrates that interest arbitration would increase the incentive for employers to negotiate in good-faith and make reasonable proposals. The Article shows that none of the alternative reforms to the law of collective bargaining and to NLRB procedures for protecting the right to bargain will be effective in addressing failures to bargain to a first contract. The Article also demonstrates that a statutory requirement of first contract arbitration is well within Congress’ power and does not represent an unconstitutional delegation of legislative authority.
Source: Catherine Fisk, Adam R. Pulver, UC Irvine School of Law Research Paper No. 2009-23
From the abstract:
One provision of the proposed Employee Free Choice Act (EFCA) would address the catastrophic underenforcement of the statutory right of employees to bargain, which results in half of all newly certified or recognized unions failing to secure a first collective bargaining agreement. It is an important reform for a seriously dysfunctional aspect of federal labor law and it will be a serious improvement over the status quo. While political and media conversation surrounding EFCA has largely focused on the so-called ‘card check provision’, the provision for first contract arbitration is as important to the protection of the right to unionize. This Essay argues that some form of mandatory interest arbitration for first contract disputes is an appropriate means of stabilizing employee-management relations given the extraordinary difficulties that unions currently experience in negotiating first contracts, the weakness of current NLRB and economic remedies, and the rippling effects of these difficulties on nascent unions. The Essay explains the need for interest arbitration given current trends in labor relations and demonstrates that interest arbitration would increase the incentive for employers to negotiate in good-faith and make reasonable proposals. This would be particularly true if arbitrators used the final offer method, which requires the arbitrator to choose one of the parties’ final offers, rather than to split the difference between the two positions. The Essay also demonstrates that a statutory requirement of first contract arbitration is well within Congress’ power and does not represent an unconstitutional delegation of legislative authority.