Labor and Employment Arbitration in a Nutshell
Author:
Bales, Richard A.
Edition:
4th
Copyright Date:
2020
25 chapters
have results for Labor and Employment Arbitration
Preface 11 results (showing 5 best matches)
- It was again time to update the Nutshell’s coverage of that area, as well as to incorporate changes in labor arbitration. The result was the Second Edition of
- Despite equal billing in the title, employment arbitration occupied a relatively small portion of the work, and even that coverage appeared almost as afterthoughts at various points in the expanded coverage of labor arbitration. The reasons for that limited treatment were simple. First, although union representation had dropped to just 15% of the workforce and union membership to just over 16 million, unions were still the dominant force in workplace dispute resolution. The number of individual employment arbitrations was tiny by comparison with the number of labor arbitrations. Second, even seven years after the legal parameters of employment arbitration were still under construction. Even the most basic questions, such as whether the Federal Arbitration Act’s exclusion of “contracts of employment” meant that the FAA did not apply to employment contract, were still up for grabs. There was, in short, little raw material for the writer to use.
- As the law of employment has evolved over the last few decades, so has this book. It began in 1979 with a predecessor volume titled
- This book is not intended as a substitute for classroom instruction in labor and employment arbitration, still less for practical experience in the field. Nor is it intended to (or could it) take the place of the detailed treatises already available to the practitioner and scholar. Its purpose is much narrower: to provide students and practitioners alike a simple but comprehensive description of labor and employment arbitration in the United States. Ideally this overview will serve as an introduction to more thorough study in other forms.
- Nearly a decade later, in 2007, the loss of union members had begun to level out. There were about a half a million fewer members than in 1998, but the decline was moderated because public sector employees became more unionized and helped to compensate for greater losses in the private sector. Because the total workforce had grown substantially, however, unions represented barely 13% of nonagricultural employees. The number of labor arbitrations had continued to decline but only modestly. The law of individual employment arbitration had firmed, however, and the number of such cases had grown. Individual employment arbitration became an established practice in many nonunion industries and companies. The courts uniformly enforced arbitration agreements in the face of legal challenges. Various court decisions set out the requirements for enforcing individual employment arbitration agreements. Arbitration providers like the American Arbitration Association created specialized panels of...
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Chapter XII Special Procedural Concerns 43 results (showing 5 best matches)
- A distinctive aspect of arbitration is that parties typically select their own decision maker. In labor arbitration, both unions and employers arbitrate frequently and eventually learn about the local labor arbitrators. In employment arbitration, however, an individual with no experience faces off against an employer who may have dealt with many employment arbitrators. Even a diligent individual who initiates an arbitration will find it hard to learn much about an employment arbitrator’s principles and practices. Few employment arbitration awards are published, and the individual will lack the informal networks that might provide equivalent information.
- The AAA’s Employment Arbitration Rules and Mediation Procedures (AAA Rules) require that arbitrators on its employment dispute roster be “experienced in the field of employment law” (Rule 12). This reflects the AAA’s belief that employment arbitrators should be familiar with the relevant substantive law and with litigation procedures as well as with the arbitration process. Unlike labor arbitration, which deals almost exclusively with contractual disputes, employment arbitration often involves the interpretation and application of federal and state statutes.
- That requirement has made the AAA’s employment arbitration panel much different from its labor arbitration panel. Almost all its employment arbitrators are lawyers, while nearly half of its labor arbitrators are not. More importantly, labor arbitrators are expected to be professionally neutral but employment arbitrators are not. Advocates for labor or management are normally not eligible for the AAA or FMCS labor panel. Most members of the AAA’s employment panel, in sharp contrast, are still practicing employment law, and most employment lawyers represent only plaintiffs or only defendants. They must be officially neutral as between the parties to the cases on which they sit, of course, but their daily representation of parties on one side of the divide or the other is not a bar to serving as an employment arbitrator. This practice raises some ethical concerns, particularly in dealing with disclosure obligations, and some practical concerns for potential parties.
- Employment arbitration falls between the commercial and labor arbitration poles. If the courts are to defer to the arbitrator’s interpretation of a statute, they need some evidence that the result was rational. On the other hand, requiring a full opinion where the employment relationship has ended might delay the process or substantially increase its cost. Thus the Supreme Court in the case accepted the New York Stock Exchange’s arbitration rules requiring only a brief statement of the case. AAA’s Employment Arbitration Rule 39(c) requires a full “reasoned” award.
- Should arbitrators be allowed to dispose of a case on a motion to dismiss for failure to state a claim or a motion for summary judgment? That question almost never arises in labor arbitration. As employment arbitration has come to replicate litigation, advocates increasingly make these motions. Arbitrators with a labor arbitration background and those whose previous experience has been with other forms of alternative dispute resolution frown on the notion of cutting off a case before hearing all the evidence. Others accept the “alternative forum” paradigm quite literally and thus view themselves as exercising the same authority a judge would have in a similar case.
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Chapter VII The “Common Law” of the Arbitration Process 149 results (showing 5 best matches)
- Arbitrators differ in their reactions to requests for lawful “consent awards.” In the wage example, many would have no problem so long as the agreement reached by the parties seemed to the arbitrator to be reasonable in the particular context. Individual grievance cases present more of a problem because the union’s interests might conflict with the grievant’s. Applicable agency rules allow consent awards in settlement of disputes in both labor arbitration and individual employment arbitration (AAA Labor Arbitration Rule 38; AAA Employment Arbitration Rule 39(e)).
- UAA § 19(b)). If the arbitration agreement does not specify a time limit, the designating agency’s rules might; the AAA, for example, allows 30 days from the closing of the hearings for both labor arbitration and individual employment arbitration (AAA Labor Rule 36; AAA Employment Rule 39(a)), while the FMCS allows 60 days (FMCS § 1404.14). Expedited rules naturally allow less time—just seven days in the case of the AAA’s Expedited Labor Arbitration Procedures (Rule E9). The Uniform Arbitration Act allows a court to fix a time on the application of a party if the agreement does not specify one (§ 19(b)). Some state statutes specify a deadline.
- This Chapter explores the rules governing the conduct of labor and employment arbitrations—what might be called the “common law” of the arbitration process. Many of those rules are matters of law, imposed and enforced by courts. Most, however, are matters of custom developed and applied by arbitrators and parties.
- First, actions to enforce or vacate an arbitration award are exceedingly rare in labor and employment cases because the parties generally wish to avoid formal legal proceedings and because of the evident futility of challenging an arbitrator’s award after the It is not in the long-term interest of either party to undercut arbitration’s finality.
- Monetary awards are also the appropriate remedy in many non-disciplinary cases. In general, however, the grievant must show actual loss. In labor arbitration cases, the union may receive only compensatory damages; with rare exceptions discussed below, punitive damages are not available. General damages and punitive damages are more common in individual employment arbitrations because the statutes at issue expressly authorize those remedies. An arbitrator should award no damages when the harm, if any, is too speculative to calculate.
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Chapter X Arbitration of Statutory Rights 93 results (showing 5 best matches)
- should apply to employment arbitration agreements as it did to labor arbitration agreements. The Court therefore used much of its opinion to distinguish that case. First, it noted that and its progeny did not deal specifically with the enforcement of an arbitration agreement, but rather with the question of whether arbitration of contract-based claims precluded later judicial resolution of statutory claims. Employees had not agreed in their collective agreements to arbitrate statutory claims, so their arbitrators had no authority to resolve those issues. Second, the presence of the union as the contracting party in a labor arbitration case created a potential tension between the individual’s rights and those of the group. The union might be willing to trade off the grievant’s statutory rights for some other benefit to the group. That obviously isn’t a problem in employment arbitration. Third, the earlier cases were not decided under the ...favoring arbitration agreements. As you...
- first permitted employment arbitration in 1991, commentators almost universally predicted employers would immediately rush to implement lopsided “agreements” that would almost completely supplant employment litigation and eviscerate basic employment rights. None of these predictions occurred quite as anticipated. Lower courts refused to enforce the most lopsided agreements (but see the discussions above and below about how consumer class-action decisions from the Supreme Court have made it far more difficult for lower courts to perform this policing function), and employers have been more hesitant than originally expected to implement employment arbitration programs. Likely reasons for the latter include the relative difficulty of an employer winning on summary judgment in arbitration as compared to litigation, and the relative formality and adherence to procedural and evidentiary rules (including discovery and motion practice) in employment arbitration as compared to labor
- To avoid unfairness in the developing field, several groups worked to establish minimal criteria for individual employment arbitration. The most important effort was a broadly-based, blue-ribbon committee that produced “A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship” in 1995. Participating organizations included the Labor & Employment Law Section of the American Bar Association, the National Academy of Arbitrators, the American Arbitration Association, the Federal Mediation and Conciliation Service, and the National Employment Lawyers Association. The drafting committee dodged the question of whether mandatory pre-dispute arbitration agreements were proper, but unanimously agreed that any employment arbitration plan should contain at least these elements:
- 1,256 employment plaintiff attorneys about their most recent cases adjudicated in arbitration, state court, or federal court. Even while accounting for claim, plaintiff, defendant, and attorney
- An important and relatively recent development in arbitration is individual employment arbitration—a term indicating non-collective arbitration agreements between an employer and its nonunion employees. Until the case discussed below, there was little reason for private-sector employers (or most of their nonunion employees) to have arbitration agreements. Apart from public employees, teachers with tenure, and a few executives, entertainers, and sports figures who had the leverage to negotiate employment contracts, employment was “at will.” Either party could terminate the relationship at any time for any legal reason with no liability. An arbitration agreement would be pointless without some substantive terms to arbitrate. Worse, from an employer’s perspective, was the risk that an arbitration agreement might destroy the at-will nature of the employment relationship.
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Chapter I Arbitration Procedure 158 results (showing 5 best matches)
- Arbitration is a process. With the exception of mandatory arbitration laws covering railroad and airline employees and some public employees, labor arbitration and employment arbitration occur only because disputing parties have agreed to it. In a union-management relationship, the arbitration agreement normally is a clause in a broader collective bargaining agreement, although sometimes parties without a general arbitration agreement will refer a specific dispute to arbitration.
- A Short Paper on the Existing and Future Use of Videoconferencing in Labor-Management and Employment Arbitration
- The American Arbitration Association (AAA), a private, non-profit organization dedicated to the improvement and expansion of the arbitration
- business is to make awards based on such considerations—but that is nevertheless what many representatives on both sides believe. Arbitration is at least partially a game of odds, so parties use any hunch they believe will improve those odds. Regardless, most parties favor arbitrators whose recent work experience has been neutral. Full-time arbitrators, academics, and government officials are thus in the greatest demand. On the other hand, parties usually want arbitrators who are familiar with employment relations, contracts, and the arbitration process. Some experience working for one side or the other is therefore desirable, provided that more recent jobs have washed away the taint of bias. The FMCS will admit only neutrals to its arbitration panel, and since 2005 the AAA imposes the same requirement on labor arbitrators (though not employment arbitrators). Similarly, the National Academy of Arbitrators admits only neutrals.
- With a few exceptions, parties to labor arbitration doubt the impartiality of persons identified with management or labor, even if they have no connection with the parties to the immediate case. (In employment arbitration, it is more common for arbitrators to be affiliated with management-side law firms.) Not only are management representatives likely to suspect that a union official is prejudiced (and vice-versa), they are equally likely to regard a person with substantial experience on “their” side as untrustworthy. This is a bit subtle, but worth explaining because it helps illustrate the careful attention serious practitioners give to the selection process.
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Introduction The Development of Labor and Employment Arbitration 20 results (showing 5 best matches)
- Employment arbitration, a newer type of workplace arbitration, has no role for unions. Instead, an employer and an individual employee agree in some fashion to arbitrate their disputes. The agreement may appear in an initial employment contract, in a handbook or other document presented to new employees, in an executive employment contract, or in an employment policy promulgated by the employer. “Agreement” in this context does not necessarily suggest a formal bargain. Rather, an employer may require job applicants to sign an arbitration provision to get a job, or may unilaterally announce an arbitration plan covering present employees; an employee who signs the provision or continues to work after such an announcement may be held to have accepted the new terms. In contrast to labor arbitration, employment arbitration agreements often cover statutory disputes as well as contractual disputes. Rarely do parties use arbitration to set the initial terms of employment. Part II of this...
- Although there is no central registry of labor arbitrations, the available evidence [reports of the two main arbitration agencies, the American Arbitration Association (AAA) and the Federal Mediation and Conciliation Service (FMCS)] indicates that the number of arbitration awards peaked in the early 1980s. It has steadily fallen since then. Some of that decline merely represents a shift of business from arbitration agencies to private arbitration panels, but clearly the overall use of arbitration has dropped significantly. The development of individual employment arbitration has added a small stream to the arbitration flow.
- Labor arbitration is the arbitration of a dispute between an employer and the union representing its employees involving some aspect of the employment relationship. Those disputes are of two types: (1) “interest” disputes, involving disagreements over the terms to be included in a contract (called a “collective bargaining agreement”) between the employer and the union representing its employees; and (2) “rights” or “grievance” disputes, involving disagreements over the meaning or application of terms already contained in a collective bargaining agreement.
- World War II’s War Labor Board introduced many newcomers to the arbitration process. The WLB settled many interest disputes through arbitration by its employees or contractors. More significantly, it required all collective bargaining agreements adopted through its processes to include provisions for mandatory arbitration of grievances over the interpretation or application of the agreement. Publication of arbitration awards, which began with the
- As early as 1786, the Chamber of Commerce of New York organized an arbitration tribunal to resolve a dispute over seamen’s wages. There were a few other labor arbitrations in those early years, but it was uncommon until the second half of the Nineteenth Century. Private tribunals for settling labor disputes were organized in England in the 1860s, and in the 1870s arbitrations were held in the Pittsburgh iron trade and in the Massachusetts shoe industry.
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Chapter II Variations on Traditional Labor Arbitration 85 results (showing 5 best matches)
- The North American system of labor arbitration is distinctive in three respects: (1) the rigid division between rights and interest arbitration, (2) the absence of government from the arbitration process, and (3) the absence of nonparty conciliation efforts before arbitration. Most other countries have taken very different approaches to arbitration. For instance, some countries differentiate among the types of disputes for which arbitration is permitted. Most countries in the European Union have labor courts instead of arbitration proceedings. In China, mediating labor disputes is strongly encouraged instead of arbitration. Arbitration is new to China, recently coming into effect with the Law on Mediation and Arbitration in 2008. Furthermore, some countries, especially in Southeast Asia, are still in the process of developing systems for resolving workplace disputes, including arbitration.
- Japan’s labor law is modeled after the NLRA, and like the U.S. has a robust system of arbitration to resolve labor disputes. Unlike the U.S.’s privately designed and operated arbitration processes, however, in Japan arbitration is entirely designed and operated by the government. All substantive and procedural rules regarding arbitration are created by statute, the Labor Relations Adjustment Law. A Labor Relations Commission in each prefecture or region settles disputes using conciliation, mediation, and arbitration. Likewise, in South Africa, all labor disputes must be submitted to the Commission for Conciliation, Mediation, and Arbitration (CCMA). In China, arbitrators are appointed by government commissions, although they are not government officials themselves.
- North American labor arbitration is most unique in the extent to which the parties have independent discretion to create both their substantive rights and arbitration procedures. In most other industrialized countries, statutory law establishes many of the rules governing the resolution of workplace disputes. In addition, procedural arbitration rules are also established by statute. Legally established arbitration tribunals include national administrative agencies, such as the Fair Work Commission (FWC) in Australia; regional administrative agencies, such as the Labor Relations Commissions in Japan; and labor courts within the European Union. Labor courts are usually tripartite, with lay judges representing labor and management sitting with a professional judge. Unlike labor and management representatives who serve as partisan advocates in the United States and Canada, labor and management representatives sitting on labor courts are expected to assess cases objectively .
- During wartime, governments usually regard strikes and lockouts as intolerable interferences with the war effort. Almost inevitably they try to prevent these disruptions by wage controls or compulsory arbitration. During World War I, for example, President Wilson decided that all labor disputes should be arbitrated, but he never sought legislation making arbitration compulsory. Instead, by executive fiat, he created labor adjustment agencies for specific industries, some of which had the power to set employment terms. In 1918, President Wilson appointed a central body, the National War Labor Board (NWLB). Although the NWLB had ostensible authority to rule on labor disputes, it had no enforcement powers.
- One of labor arbitration’s greatest strengths is its flexibility. It has changed over time to meet the needs of particular industries, employers, and unions, to address new issues, and to respond to pressures from the public and from legislatures. This Chapter surveys some of the most significant variations on the traditional labor arbitration system discussed in the preceding pages.
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Chapter IV The Legal Status of Labor Arbitration 76 results (showing 5 best matches)
- Chapter II mentioned the pioneering role of World War II’s War Labor Board. One other early federal statute deserves mention. In 1925 Congress passed the United States Arbitration Act (USAA Federal Arbitration Act, or FAA, in 1947), which made arbitration agreements in contracts involving interstate or international commerce enforceable in federal courts. Intended for and originally limited to commercial disputes, the FAA has had little impact on labor arbitration. FAA § 1 excludes “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Although courts today hold that collective bargaining agreements are not “contracts of employment,” that was not so clear in 1925 and for some decades thereafter. Indeed, until the
- Most major industrial U.S. states have arbitration statutes expressly applying to labor disputes. Some merely charge a state agency to “promote” arbitration and others were designed primarily for commercial disputes, but many are detailed laws clearly envisioning labor arbitration. Among the states having comprehensive arbitration laws covering labor arbitration are California, Illinois, Massachusetts, Michigan, New Jersey, New York, and Ohio. Most of these statutes follow similar lines. They generally provide for state court enforcement of labor arbitration agreements and supervision of the process, a formal hearing, issuance of subpoenas, judicial review, and enforcement of awards.
- Until the mid-1900s, courts in the United States were not receptive to labor arbitration. Their critical attitude stemmed from jurisdictional jealousy and doctrinal difficulties, both factors far removed from the merits and demerits of labor arbitration itself.
- Again, the Supreme Court reversed, holding that there is no room under federal labor policy for the hostility toward arbitration the courts had shown in commercial cases. To the contrary, because arbitration in these cases is a substitute for labor strife rather than for litigation, the courts should read arbitration clauses in the manner most favorable to arbitration:
- The relationship between state statutes governing labor arbitration and federal labor relations law is far from settled. As will be seen in the following pages, federal law recognizes that state statutes and courts are relevant to labor arbitration under the Taft-Hartley Act, but state laws must be consistent with the federal policy embodied in § 301. The difficulty in applying this general rule of accommodation is that almost any provision of state law affecting arbitration can be interpreted by one party as interfering with federal policy. A grant of subpoena power to arbitrators might be viewed as a means of improving the quality or quantity of evidence on which the arbitrator will make a decision, but the recipient of the subpoena might just as easily regard it as an unwarranted intrusion into matters best left to collective bargaining, an intrusion that arguably hinders arbitration agreements by making them less attractive to potential subpoena recipients.
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Chapter IX The Subject Matter of Labor Arbitration 96 results (showing 5 best matches)
- Nearly all collective bargaining agreements, and many individual contracts of employment, provide that the employer may discipline the employee only for “just cause” (or some similar term). Although that phrase lacks detail, labor arbitrators have explicated it in tens of thousands of arbitration awards.
- Arbitration’s subjects are as broad as the employment relationship itself. Collective and individual employment contracts can deal with the entire range of employment issues, from hiring to firing, including wages, fringe benefits, hours, work loads, job security, safety, and much more. The following pages provide only brief introductions to the most important subjects of arbitration.
- Whatever the merits of the seven tests in that environment, they are of limited use in other types of arbitration. Although Daugherty’s tests are much-used in training materials for labor arbitrators and advocates, the tests are seldom used in actual arbitration awards—even less so by experienced and prolific arbitrators.
- Discipline and discharge matters form the single largest group of arbitration cases, probably because the stakes are so high when a job is at risk. Protection against unjust discharge represents a marked departure from the employment-at-will doctrine that governs most American employment relationships. These cases comprise nearly half of the typical arbitrator’s work. In general, discipline cases are more fact-specific than many other arbitrations, because the controlling contract terms (like the requirement of “just cause”) are too vague to provide much help.
- Dunsford attributes Daugherty’s idiosyncratic view of arbitration to his work as a referee in Railway Labor Act cases. Unlike normal grievance arbitrators, RLA referees rely on documents and oral arguments without hearing witnesses or conducting other types of investigations.
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Outline 72 results (showing 5 best matches)
Chapter V The Relationships Between Arbitrators, the NLRB, and the Courts 102 results (showing 5 best matches)
- Perhaps the most complex area of the law of labor arbitration involves the relationships between arbitrators, the National Labor Relations Board (NLRB), and the courts. Chapter IV briefly mentioned some aspects of this problem, for example the deference courts give to arbitration awards and the notion of arbitrability. This Chapter explores those topics in greater detail. It also deals with several new issues, among them the authority of arbitrators to apply external law in addition to, or in place of, contract terms, and the attitude of the NLRB toward labor arbitration.
- , the Board will defer to an arbitration decision and award if: “(1) the arbitration proceedings were fair and regular, (2) the parties agreed to be bound, (3) the contractual issue was factually parallel to the unfair labor practice issue [even if the arbitrator did not expressly consider the unfair labor practice], (4) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice, and (5) the decision was not clearly repugnant to the purposes and policies of the Act.” The burden is on the party arguing against deferral.
- There are three primary situations which force an arbitrator to grapple with this issue. The first and least problematic situation occurs when a labor agreement and a statute prohibit the same conduct—for example, discrimination on the basis of union membership or race. No one doubts that an arbitrator could use the relevant statute and case interpretation to determine “the sense of the agreement.” That is especially appropriate where some portion of the agreement arguably violates the statute. Where the contract term is susceptible to two interpretations, one of which is consistent with the law and the other of which conflicts with it, arbitrators may reasonably assume that the parties intended the lawful interpretation. Roger I. Abrams, Inside Arbitration: How an Arbitrator Decides Labor and Employment Cases (Bloomberg-BNA 2013) at 289.
- NLRA § 8(a)(5) obliges an employer to bargain with the union representing its employees over their “wages, hours and other terms and conditions of employment.” By extension, this obligation applies to proposed changes in the terms of employment. Bargaining before every minor change can be costly and inconvenient, so one way an employer can fulfill this obligation is to bargain with the union for contractual authority to make certain changes during the contract term without further bargaining. For example, an employer might gain the right to adjust hours and work assignments in response to market changes. If the union later challenges a certain change as outside the scope of that clause, the unfair labor practice charge may depend entirely on interpretation of the contract. Add a broad arbitration clause covering the issue and the result is a potential conflict of jurisdiction between the Board and the arbitrator.
- In very broad dicta, the Court cited national labor policy as requiring some balance of protection for employees threatened by a sudden change in the employment relationship, and said industrial strife would be avoided if employees’ claims continued to be resolved by arbitration rather than by the parties’ economic power. The Court recognized that expiration of the contract might affect some of the
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Chapter III Application of Arbitration to New Situations 55 results (showing 5 best matches)
- The Second Circuit’s opinion was consistent with the Supreme Court’s doctrine on the limited judicial review available for arbitration awards. The twist in this case is that the arbitrator was not a neutral party—Goodell was reviewing his own decision. The Second Circuit said that since the CBA specifically provided for this unusual review process, the court had to adhere to what the parties had agreed to. The case thus also illustrates the tendency of courts to defer to the parties’ definition of a dispute-resolution process as “arbitration” even if, objectively, it’s not (true arbitration requires a neutral decisionmaker). Such deference is unlikely to be much of a problem in labor arbitration (where the parties have roughly equal bargaining power and the dispute-resolution process is bargained-for), but could be a significant problem if applied in consumer or employment arbitration where bargaining power often is grossly unequal and the process is imposed unilaterally by one...
- Labor relations in Major League Baseball are more advanced than in other sports, but the experience there is instructive. Until the 1960s, club owners had almost total control of the terms and conditions of employment. When the players’ union negotiated its first contract in the 1960s, one of its key demands was a system of impartial arbitration of grievances. Initially it could not achieve that objective and had to settle instead for a grievance system that ended with “arbitration” before the commissioner of baseball, who was selected and paid by the same club owners with whom the union was in dispute. One players’ representative was fond of describing this system as “partial arbitration,” a
- State and local governments vary widely in their use of labor arbitration. Some states still prohibit public sector collective bargaining. Others allow only certain categories of state and local government to bargain, most commonly teachers, police, and firefighters. A few permit bargaining but do not regard negotiated agreements as binding; either party can refuse to proceed with an arbitration or to abide by an award. In still other states, courts have held contractual arbitration agreements, even when authorized by statute, unconstitutional as a prohibited delegation of governmental power to a private individual. Notwithstanding these exceptions, in most states public sector labor arbitration is both legal and common. Moreover, some states have led the way in developing new forms of arbitration, in particular the compulsory, expedited, final-offer and interest arbitration variations discussed in the previous Chapter.
- Another aspect of arbitration’s flexibility has been its application to situations far removed from its traditional industrial origins. This Chapter describes arbitration’s use in new occupational fields (the public sector, higher education, professional sports, and airlines). Part II of this book explores the most important recent application, the extension of arbitration to individual employment disputes in nonunion settings, particularly for use in resolving statutory claims.
- Collective bargaining is a relatively recent development in the federal government, and arbitration as a means of dispute settlement is just as new. The first major step toward labor arbitration in the federal sector came in 1962, when President Kennedy issued . Although immediately hailed as a “Magna Carta” for public employees, the executive order was but a pale reflection of the private sector collective bargaining system. Among other limitations (chief among them the exclusion of wages and other monetary items from the scope of bargaining), the executive order allowed only advisory arbitration of contract disputes.
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Index 102 results (showing 5 best matches)
- Individual employment arbitration, see Deferral, Courts to arbitration, Statutory cases; Individual Employment Arbitration
- Individual employment arbitration awards, see Individual Employment Arbitration, Judicial review of
- AAA Expedited Labor Arbitration Rules, see American Arbitration Association
- See Deferral, Courts to arbitration, Statutory cases; Individual Employment Arbitration, In general
- See Deferral, Courts to arbitration, Statutory cases; Individual Employment Arbitration
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Chapter VIII The Process of Contractual Interpretation 63 results (showing 5 best matches)
- Contract interpretation is the heart of the arbitrator’s job. Collective bargaining agreements and individual contracts of employment are contracts, of course. Many of the general rules of contract law and many of the usual principles of contract interpretation apply to those documents as well as to others. However, there are some special elements that arise in interpreting labor and employment agreements.
- This Chapter explores the rules governing contract interpretation in labor arbitration. It begins with the subject of precedent: in particular, the legal topics of stare decisis, res judicata, and collateral estoppel. Section B examines issues of substantive and procedural arbitrability. Those issues are interpretive matters because the arbitrator must decide whether the agreement allows the arbitration of the pending matter. Finally, Section C discusses the most important principles of contract interpretation.
- and Collateral Estoppel in Labor Arbitration
- Although the Supreme Court gave the federal courts ultimate authority over questions of substantive arbitrability, it left procedural arbitrability issues in the hands of the arbitrator: “Once it is determined . . . that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.” . That division of labor, said the Court, “best accords with the usual purposes of an arbitration clause and with the policy behind federal labor law to regard procedural disagreements not as separate disputes but as aspects of the dispute which called the grievance procedures into play.” The number of procedural defects a party may cite to deny a grievance’s arbitrability is almost endless, but discussion of the two most common should illustrate arbitrators’ reactions to such claims.
- One should use these principles cautiously. The distinguished American Legal Realist Karl Llewellyn suggested more than a half century ago, perhaps with tongue in cheek, that every canon of interpretation had an equal and opposite canon.
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Chapter XI Enforcing Individual Agreements 32 results (showing 5 best matches)
- Once an employee has begun employment, the role of consideration for an arbitration agreement is more complicated. To avoid problems, an employer might offer some benefit to current employees who accept the arbitration agreement. That can be complicated and expensive, however, and it might result in some employees declining the offer.
- The classic example of a contract is a bargain struck after negotiation and signed by both parties. However, there is precious little “bargaining” about the typical individual arbitration agreement signed by a rank-and-file employee (executive contracts usually are negotiated). Normally, employers simply require applicants for employment to sign the agreement, or suddenly announce it to current employees. One who does not wish to waive access to the courts has a simple but drastic alternative: find another job. Moreover, the arbitration agreements are often extremely broad. They seldom indicate which statutory rights employees are waiving. The Form U-4 signed by Gilmer, for example, referred only to New York Stock Exchange rules. The critical rule, should Gilmer ever have found it, provided for arbitration of any controversy “arising out of the employment or termination of such registered representative”—no reference to the
- , which states that an arbitration agreement is assailable only if the arbitration agreement itself—not the container contract that the arbitration agreement is a part of—is assailable on state contract law grounds, such as unconscionability. The Court held that an arbitration agreement itself can be the container contract and that unconscionability arguments must be directed toward specific provisions of the arbitration agreement, not the arbitration agreement as a whole. Therefore, courts are more likely to sever unconscionable provisions from an agreement than to hold that an entire agreement is unenforceable on unconscionability grounds. See also (characterizing an “arbitrator decides arbitrability” clause as merely a specialized form of an arbitration clause which, like any other arbitration clause, is not enforceable under the FAA Section 1 “contracts of employment” exclusion).
- Two factors have combined to prevent employers from enforcing inequitable employment arbitration programs (with the caveats discussed at the end of the preceding Chapter and also below). One is Federal Arbitration Act,
- , and is a particularly good example. Prudential required job applicants to sign a standard form that contained an arbitration provision. Because the arbitration provision failed to specify that employment disputes were subject to arbitration, the court refused to compel arbitration because the employees lacked knowledge.
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Chapter VI Judicial Review of Labor Arbitration Awards 67 results (showing 5 best matches)
- FAA specifically authorizes courts to vacate arbitration awards on several grounds: corruption, fraud, undue means, evident partiality, procedural misconduct or other misbehavior, exceeding the contractual authority or failing to render a final award (§ 10). FAA § 11 allows a court to modify an award to correct miscalculations or mistakes, to eliminate a portion of an award on a matter not submitted to the arbitrator, and to correct a matter of form not affecting the merits. The Uniform Arbitration Act (UAA), modeled after the FAA, states similar grounds for vacation and modification (§§ 23 and 24). Neither the UAA applies directly to labor arbitration—the legal authority for labor arbitration is Section 301 of the Taft-Hartley Act—but federal and state courts often borrow from other lines of authority when discussion judicial review of awards.
- decision. Indeed, relatively few arbitration awards are ever challenged in court because the futility of doing so is apparent. From 1960 to 2001, federal courts confirmed arbitration awards around 70% of the time. Michael H. LeRoy & Peter Feuille,
- Successful challenges to arbitration awards since usually fall into one or more of these categories: (1) failure of the award to “draw its essence” from the collective agreement, (2) lack of jurisdiction or authority for the award, (3) arbitral misconduct and procedural unfairness, (4) gross error or irrationality, (5) violation of law or public policy, (6) ambiguity, incompleteness or inconsistency, and (7) a union’s breach of the duty of fair representation. Some special considerations apply to judicial review of individual employment arbitration awards and federal-sector arbitration
- The last aspect of judicial (and in this case, administrative) review that deserves separate discussion concerns review of federal-sector arbitration cases. The controlling statute, the CSRA, permits the Federal Labor Relations Authority to review an arbitration award that is contrary to any law, rule, or regulation or that is deficient “on other grounds similar to those applied by Federal courts in private sector labor-management relations,”
- FAA § 10(a)(2) authorizes vacation of an award for “evident partiality or corruption in the arbitrators.” Actual corruption in labor and employment arbitration is rare. That leaves “evident partiality” as the most common claim under § 10(a)(2). A party asserting partiality bears a heavy burden. “Evident partiality” requires more than a mere “appearance” of bias but does not require proof of actual bias,
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Table of Statutes 14 results (showing 5 best matches)
- Arbitration Act of 1888, 127
- Fair Labor Standards Act (FLSA), 173, 176, 179, 194, 312, 389, 415
- Federal Arbitration Act (FAA), 41, 52, 129, 130, 132, 195, 205, 206, 214, 215, 218, 266, 387, 389, 390, 391, 395, 396, 398, 399, 411, 412, 413, 415, 416, 418, 427, 428, 433, 437, 440, 447, 449, 450, 457, 459, 461
- Labor-Management Relations Act of 1947 (Taft-Hartley Act), 41, 77, 78, 85, 109, 127, 129, 131, 132, 135, 144, 163, 180, 183, 190, 205, 306, 383
- National Labor Relations Act (Wagner Act or NLRA), 40, 73, 76, 84, 98, 113, 153, 173, 180, 181, 187, 199, 213, 374, 415
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Table of Cases 15 results (showing 5 best matches)
- Amalgamated Association of Street, Electric Railway & Motor Coach Employees, Division 998 v. Wisconsin Employment Relations Bd., 75
- Publishers’ Association of New York City v. Newspaper and Mail Deliverers’ Union of New York and Vicinity, 305
- W. R. Grace and Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum and Plastic Workers of America, 174, 226, 313
- Columbia Broadcasting System, Inc. v. American Recording and Broadcasting Association, 246
- Glass Molders, Pottery, Plastics and Allied Workers Union, Local 182B v. Excelsior Foundry Co., 296
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Copyright Page 3 results
- and the Nutshell Logo are trademarks registered in the U.S. Patent and Trademark Office.
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
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Dedication 1 result
- Publication Date: October 12th, 2020
- ISBN: 9781647084448
- Subject: Labor Law
- Series: Nutshells
- Type: Overviews
- Description: Labor and employment arbitration law simplified. Authoritative coverage provides a description of the origin, development, and practice of labor and employment arbitration. Text focuses on the fundamentals of the labor and employment arbitration process and explores the major arbitration law issues, their importance, and the conflicting opinions on them.
