Labor Arbitration
1. History
·        USà all labor relations are based on contracts
·        Europeà it's all based on statute so all industrial employees are in the union.
·        CBAs always have some ambiguity or difference of opinion. So we need arbitration!
·        Alternatives to arbitration?
o  Strikes: expensive, risky for businesses and employees
o  Lawsuits: expensive, takes too long, not efficient enough, may not be serious enough to involve a jury
·        Arbitration has become the preferred method of dealing with these disputes
·        Judiciary hostile to arb in early days, judges would refuse to enforce arb agreements
·        Hostility lessened when congress passed Federal Arb Act 100 yrs agoà now applies to labor and employment arb as long as it doesn't involve employees directly engaged in interstate commerce (railroad engineers and stuff.)
·        Uniform Arb Actà 1966, now most states (not AL) have adopted it.
·        Allied Bruce Terminix Caseà commercial arb got a big boost
·        Taft-Hartley Act of 1947 (Labor Management Relations Act) contains statutory language that set groundwork for arb to become widespread in management-relations area
·        War Labor Board boosts arb.  US couldn’t allow economy to falter during war time. First wave of good arbtrs came from this war board.
·        After war: pent up demand for change in industrial setting. Workers began striking! So arbtrs got work!
·        CBA usually contains a no strike clause. When your contract is up, then you can strike.
·        Lincoln Mills Case and Steel Workers trilogy: strongly supported the enforcement of arb awards and specific performance from arb.
·        American Manufacturing Case and Warrior Gulf Case:
o  Justice Douglas: we should read the articles in favor of arb. (substantive arbitrability) unless it is totally clear that that subject cannot be arbitrated under the contract. ALSO it is the arbtrs job to decide whether the issue is frivolous or not, not the judge.
·        Alabama has a statute that says that arb is voidable by either party after a dispute has been resolved, but we totally ignore it and no one does that
2. Grievances
·        Mediation vs. Arbitration:
o  Mediation: dispute remains unresolved if the parties don't come to an agreement
o  Arbitration: parties have empowered the neutral to make a binding decision
·        Interest Arbitration vs. Grievances:
o  Interest Arbitration: parties negotiating contract terms/provisions before or while writing CBA
o  Grievances: after the contract or CBA. resolves disputes about interpretation or application of the agreement
·        Grievance procedure: progresses to higher forms of representation on each side. If these steps don’t settle the issue, then the question goes to arbitration!
·        How to get an arbitrator:Â
o  ad hoc or already assigned by contract/CBA or rotating panels of arbitrators or single arbitrator or tripartite panel where two are representatives and one is neutral.
o  ad hoc: if get one you don't like, you never have to hire them again
o  permanent assigned arbtr: you know what to expect and becomes more efficient
o  AAA or FMCS will present a list of 7 or so arbitrators: strike off list till one is left or negotiate to decide on one. they send info on all the potential arbitrators.
o  For something requiring specific knowledge (like industrial engineering): you might want someone with a degree as an industrial engineer! can specify to the academy who you want!
·        FMCSà Federal Mediation and Conciliation Service
·        AAAà American Arbitration Association (more expensive, more cumbersome procedures after picking for the arbitrators. they act as a middle man.)
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·        Most arbtrs will charge a cancellation fee, especially for last minute cancellations
·        National Academy of Arbitratorsà best arbitrators belong to this club! Need 50 cases and letters of recommendation from parties you have arbitrated for!
·        Parties: employer and union representing employee!
·        Arbitrators have wider discretion in what they can do than a judge or an advocate
·        Arbitration hearing: introduce documents (joint exhibits: like the collective bargaining agreement, the written grievance, the company's written responses) and exhibits
·        Most arbitrators will let all evidence in because they are not an impressionable jury, they are professionals and experts and the therapeutic value of letting evidence in can be important in arbitration and preserving business relations.
o  Allowed: witnesses, rebuttal evidence, closing arguments, complaint presentation and response
·        Burden of Proof:
o  Termination arbitration: employer has the burden of proof, difficult to prove for the company. like a criminal case, the misconduct must be proved by the party that discharged the employee
o  Grievance complaints/civil arbitration: employee who files the grievance has the burden of proof.
·        Parties agree on whether or not to have an official transcript taken by a court reporter
·        How to get briefs to arbtr in a fair manner:
o  Mostly, parties send two copies to the arbtr and when the arbtr gets both parties' briefs, s/he sends the copies to the opposing party
·        At the end of arbitration:
o  arbtr writes the decision. 10-20 pages, double-spaced, it summarizes the arguments and relevant provisions and laws and then gives reasons for the ruling
·        Arbitrability Issues resolved by:
o  hearing evidence on arbitrability of the grievance, decides whether or not the issue will go to arbitration
·        Substantive arbitrability: cut and dry, but when in doubt, usually goes to arbitration
·        Procedural arbitrability: time limits and whatnot, pretty flexible. time limits can be waived
3. Federal Common Law: Creation
·        History:
o  1940sà unions couldn't be sued and no one liked arbitration and it couldn't be enforced. During WWII, strikes were not allowed and there were laws against it. so grievances piled up and everyone had complaints when the war was over! Strikes happened everywhere after the war! So there were too many strikes, too much economic pressure at one time! so arbitration that was established by the National Labor Relations Board during the war became more popular!
o  Taft Hartley act in 1947: gave federal cts jurisdiction over CBAs and now they can enforce CBA rights! also, unions can now be sued and money judgments against unions are now enforceable.
o  The exclusion only applies to those who are directly involved in moving interstate commerce stuff. railroads, and dock workers perhaps.
·        Textile Workers Union v. Lincoln Mills
o  Authorized federal courts to fashion a body of national labor laws to enforce CBAs
o  Specific performance AND money judgments can be enforced in CBA disputes. legislative history shows this intention. Ct can compel arbitration as well.
o  Agreement to arbitrate agreements is the quid pro quo for an agreement not to strike
o  Article III, section 2: gives judicial power to cases “arising under…the laws of the US” and thus over labor arbitration
o  Held that: a grievance arbitration provision in a CBA could be enforced by reason of section 301(a) of the Labor Management Relations Act and that the policy to be applied in enforcing this ty
through fraud or through the arbitrator's dishonesty need not be enforced.”
o  “When the subject matter of a dispute is arbitrable, “procedural” questions which grow out of the dispute and bear on its final disposition are to be left to the arbitrator.”
o  “His error was not in bad faith or so gross as to amount to affirmative misconduct”–>deference to arbitrator, even if there was a procedural error.
·        Eastern Associated Coal Corp. v. United Mine Workers of America, District 17
o  case about public policy as a reason for overturning an arbitrator's decision
o  test for when public policy can be used to overturn an arbitrator's decision
§ explicit policy, must be well-defined and dominant
§ must be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests
o  “ct's authority to invoke the public policy exception is not limited solely to instances where the arbitration awards itself violates positive law. Nevertheless, the public policy exception is narrow and must satisfy the principles set forth in W.R. Grace and Misco.”
·        Major League Baseball Players Association v. Garvey
o  Player alleged that collusion of coaches financially harmed him. arb denied the grievance because Garvey's letter contradicted his statement and Garvey didn't produce any evidence of an offer for an extension of his contract by the coaches. Garvey appealed to vacate the award and the ct did.
o  The arbitrator based his decision on “his own brand of industrial justice”à a cause for ct review of arb awards from the steel workers trilogy
·        Boys Markets, Inc. v. Retail Clerks Union, Local 770
o  Injunction was issued. Sinclair was reconsidered. Supreme ct overrules Sinclair. Says Taft-Hartley supersedes Norris La Guardia.
o  Injunction issued only if CBA requires both parties to arbitrate. must be warranted under ordinary principles of equity. will irreparable damage occur to a party if the injunction isn't issued?
·        Buffalo Forge Case
o  boys market narrowly construed, so an injunction to stop an ongoing strike while the arbitration is pending is not allowed.
·        More: The Trilogy's purposeà we don't want arbitration bookended by ct proceedings. would make the whole thing meaningless and inefficient
·        Public policy a good enough reason to set aside an arbitration award?
o  The enterprise wheel case: arb have right to decide it all. cts should not look behind.
·        W.R. Grace case: let cts go behind and re-work arbitrator's decisions! bad!
·        Norris La Guardia Actà congress response to ct's hostility to arbitration. Cts are prohibited from issuing injunctions unless unlawful activity was going to result without the injunction. it also authorized some standards for arbitration.
·        Even under National Relations Act, those who participate in wildcat strikes are subject to termination.
