978-1305576209 Chapter 11 Solution Manual

Unlock access to all the studying documents.

View Full Document

CHAPTER 11

Labor and Employment Arbitration

Outline

I. Development of Labor Arbitration

i. National War Labor Board (NWLB)

ii. Lincoln Mills decision

iii. Steelworkers’ Trilogy

II. Elements of a Typical Arbitration Proceeding

i. Selection of arbitrators

ii. Pre-hearing activities

iii. Arbitration hearing

iv. Arbitrator’s decision

a. Selection and Characteristics of Arbitrators

i. Federal Mediation and Conciliation Service (FMCS)

ii. Office of Arbitration Services (OAS)

iii. Striking method

iv. American Arbitrator Association (AAA)

v. Striking and ranking procedure

vi. State and local agencies

vii. Single arbitrator

viii. Tri-partite arbitration board

ix. Ad hoc arbitrator

x. Permanent arbitrator

xi. National Academy of Arbitrators (NAA)( Exhibit 11.1)

xii. Code of Professional Responsibility for Arbitrators of Labor–Management

Disputes

b. Decision to Arbitrate

i. Real goal in arbitration

c. Prehearing Activities

i. Preparing for hearing (see Labor Relations in Action, page 548)

ii. Prehearing brief

iii. Prehearing stipulations

d. The Arbitration Hearing

i. Legalistic versus problem-solving approach (Exhibit 11.2)

ii. Problem-solving approach

iii. Hearing

1. Opening statements

2. Examination and cross-examination

3. Introduction of exhibits

4. Oral closing statements

iv. Posthearing brief

2. Relevant contract language

4. Counterarguments

5. Decision from the arbitrator

III. Comparison of Arbitration and Judicial Proceedings

i. Compared (Exhibit 11.3)

ii. Common law of the shop

iii. Stare decisis

a. Evidence in Arbitration vs. in Judicial Proceedings

i. Types of evidence permitted at hearings

ii. Evidential conflicting considerations

iii. Hearsay testimony

iv. Consideration of medical opinions (Exhibit 11.4)

b. Arbitration in the Railway and Airline Industries

i. Railway Labor Act

ii. National Railroad Adjustment Board

iii. National Mediation Board (NMB)

iv. De novo hearing

v. Special Boards of Adjustment

vi. Public Law Boards

vii. Tripartite boards

viii. System Boards of Adjustment

IV. The Arbitrator’s Decision

i. “Classic” arbitrators approach

ii. Narrative story-telling approach

iii. Decision should educate

a. Decision-Making Guidelines Used by Arbitrators

b. Burden of Proof, Witness Credibility, and Cross-Examination

i. Evidence

ii. Witness credibility

iii. Incorrect cross-examination (Exhibit 11.5)

c. Clear and Unambiguous Language

i. Parole evidence rule

d. Intent of the Parties

i. Constructive discharge

e. Past Practice

i. Identifiable past practice

ii. Zipper clause

f. Previous Labor Arbitration Decisions

i. Factors influencing the success of parties in arbitration cases

ii. Prevailing unions

V. Current Issues Affecting Arbitration

a. Legal jurisdiction

i. Steelworkers’ Trilogy

b. Labor Arbitration and the Equal Employment Opportunity Commission

i. Grievances protesting discipline

ii. Alexander v. Gardner-Denver decision

iii. Wright decision

iv. Gilmer decision

v. 14 Penn Plaza LLC v. Pyett

vi. Arbitration of statutory rights (Exhibit 11.6)

c. Labor Arbitration and the National Labor Relations Board

i. Spielberg Manufacturing Company case

ii. Collyer case

iii. Olin Corporation case

iv. United Technologies case

v. Burden of proving deferral

vi. Appropriate deferral

vii. Arbitration agreements preclusions

d. Labor Arbitration, the Courts, and Public Policy: The Misco Decision

i. Contrary to public policy

ii. Sexual harassment

e. Appraising Labor Arbitration’s Effectiveness

i. Criticism toward arbitrators (Exhibit 11.7)

f. Arbitrators’ Capabilities and Ethics

i. Arbitrators’ Code of Professional Responsibilities

ii. Garbage in, garbage out theory

g. Procedural Problems

i. Time delay (Exhibit 11.8)

ii. Expense

iii. Reasons for delays

iv. Expedited Arbitration Procedures

v. Prehearing expedition

vi. Posthearing expedition

vii. Arguing on paper

viii. Video conferencing

h. Employment Arbitration

i. Circuit City Stores v. Adams (Exhibit 11.9)

ii. EEOC v. Waffle House

i. Arbitral Dilemma

i. Conclusions drawn to guide parties and neutral arbitrator

ii. Critique of Mandatory Employment Arbitration

1. Walter Gershenfeld—Deficiencies of typical nonunion employment

arbitration procedures

2. Guidelines to procedural fairness in arbitrating (Exhibit 11.10)

iii. The Court’s Observation of Arbitral Deficiencies

2. Judge Harry T. Edwards

1. Repeat player effect

2. Repeat arbitrator effect

j. Public Policy Implications for the Future

i. A Comparison of Decisions by Employment Arbitrators, Labor

Arbitrators, and Jurors in Employment Termination Cases

1. Differences between Employment Arbitration, Labor Arbitration,

and Jurors Involving an Employee Discharge

Discussion Questions

1. How did World War II and the National War Labor Board greatly expand the use of

arbitration?

World War II encouraged the use of arbitration by

• Stressing disputes which interrupted work essential to the war would be resolved by

2. The Steelworkers’ Trilogy greatly enhanced the arbitrator’s authority when compared with

previous years, yet did not give the arbitrator final jurisdiction over certain issues. Discuss

the preceding statement in terms of the specific features of these judicial decisions; also

consider current jurisdictional issues arbitrators face in terms of governmental agencies.

Prior to the Steelworkers’ Trilogy in 1960, there was little judicial support of the arbitrator’s

role. The 1957 Lincoln Mills decision mainly stressed that the federal courts should enforce

• The arbitrators must be given latitude in bringing their experiences and capabilities

to bear on fashioning a remedy appropriate to the parties (United Steelworkers of

America v. Enterprise Wheel and Car Corporation).

While the Trilogy acknowledged the capabilities and benefits of arbitrators, some doubt

remained as to the arbitrator’s role in interpreting federal legislation (e.g., an African-

The NLRB and OSHA can also share jurisdiction with the arbitrator; however, they

3. Discuss the similarities and differences between arbitration and judicial hearings with

particular emphasis on the common law of the shop, admission of evidence, and the role of

the arbitrator vs. that of the judge.

Similarities between judicial and arbitration proceedings include: presentation of witnesses,

cross-examination, submission of evidence, attempts to maintain an orderly procedure, and

4. Why are arbitrators’ decisions usually lengthy when one sentence could indicate who was

right and wrong? Your discussion of this question should include the purposes of arbitration

and its advantages, as well as disadvantages of an extensive arbitrator decision.

There is controversy over the length of an arbitrator’s decision. Some feel that a simple one-

5. Discuss two decision-making guidelines used by arbitrators, furnishing specific examples

(not mentioned in the text) of how these guidelines apply.

An arbitrator might deny a grievance where an employee claims an overtime violation and

pay for 8 hours at time and one half for the appropriate remedy. The employee in this

6. Cite and defend three specific methods you would use to make the typical arbitration

procedure more effective. Also indicate the advantages and disadvantages of your

suggestions.

problems” section (including Exhibit 11.6 and discussion on expedited procedures).

7. Discuss the following: The refusal to use grievance mediation as a step prior to arbitration

illustrates the stubbornness of many union and management officials.

“Stubbornness” is probably the least likely personality trait to be found in this situation.

Indeed, those few management and union officials who have switched from grievance

also be concerned about other potential problems of grievance mediation such as added

expenses if the grievance goes to arbitration and/or possibly breaching a fair representation

obligation. There is no reason to think that more union and management officials might

adopt this process unless a clear, consistent, and overwhelming body of evidence supports

grievance mediation over the next ten years or so.

8. After reviewing Exhibit 11.11, would you rather work as an employee in an environment of

labor arbitration or employment arbitration? Why? Why not?

9. Do you believe that labor unions should use the benefits of labor arbitration as part of the

union’s strategy to recruit new members? Give your reasons.

Exploring the Web

Labor and Employment Arbitration

1. American Arbitration Association (AAA)

2. National Academy of Arbitrators (NAA)

3. Office of Arbitration Services (OAS) of the Federal Mediation and Conciliation Service

(FMCS)

Suggested Readings and Term Paper Topics

1. How does grievance arbitration in Canada differ from that in the U.S.? Which is

better? Why?

Possible references:

Boivin, R. and Mariani, N (2003). International arbitration in Canada highest court rules in favour of broad

705.

Tjosvold, D. (1999). Grievance resolution: Perceived goal interdependence and interaction patterns,

2. Using case materials (e.g., BNA ‘s Labor Arbitration Reports, CCH Labor Arbitration

Cases, and the Labor Arbitration Information System or LAIS) available in many

reference libraries) review a sample of arbitrators’ decisions in 20-30 similar cases in

the past 10 years. Focusing on one of the following specific types of issues—tardiness,

drug testing, drug abuse, and intoxication at work—what factors seem to influence

arbitrator’s decisions?

3. Should grievances related to racial or sexual discrimination (including sexual

harassment grievances) be heard by arbitrators, the Equal Employment Opportunity

Commission, or by federal judges?

Possible references:

Altenbernt, M.A. (2003). Will EEOC v. Waffle House, Inc. signal the beginning of the end for mandatory

250.

France, L.T. and Kelly, T.C. (2003). Mandatory arbitration of civil rights claims in the workplace: no

enforceability without equivalency. Montana Law Review, 64, 2, 449-491.

4. Should termination cases be settled by arbitration or in court? Defend your position.

Possible references:

Applee, B.M. (2003). Bench trials may prove better for employers than arbitration. The Los Angeles Daily

Journal, 116,79, 7.

Anderson, R. L. (February, 1991). Is arbitration the answer in wrongful termination cases? Labor Law

5. Does “peer arbitration” work better than traditional arbitration? Support your

opinion.

Possible references:

Beam, K.B. (2003). Administering last rights to employee rights: arbitration enforcement and employment

law in the twenty-first century. Houston Law Review, 40, 2, 499-540.

Caras, H. S. (1991). Measuring the success of peer review. Employment Relations Today, 18, (1), 103-108.

6. Express your opinion: Should disputes that involve both alleged contract violations and

alleged legal violations go to private arbitration? Or, should they go to an appropriate

federal agency (e.g., the National Labor Relations Board)?

Possible references:

Beam, K.B. (2003). Administering last rights to employee rights: arbitration enforcement and employment

law in the twenty-first century. Houston Law Review, 40, 2, 499-540.

7. Many courts are using mediators and arbitrators as “Alternative Dispute Resolution

(ADR)” procedures instead of using full court trials. Suppose you were hired by a

district to determine whether ADR procedures should be used with civil cases. Write a

report to the court arguing for or against ADR procedures. Note: If you argue for ADR

be sure to argue for a specific type of procedure (e.g., arbitration).

Possible references:

Cohen (2003). Relative Satisfaction with ADR: Some Empirical Evidence. Dispute Resolution Journal, 57,

4, 36–41.

Colvin, A.J.S. (2003). The dual transformation of workplace dispute resolution. Industrial Relations, 42, 4,

712–735.

8. Compare expedited grievance arbitration and traditional grievance arbitration. Which

procedure is superior? Support your position.

Possible references:

Cohen (2003). Relative Satisfaction with ADR: Some Empirical Evidence. Dispute Resolution Journal, 57,

4, 36–41.

9. Several investigators have studied how the explanations (“accounts“) offered by

decision makers (e.g., arbitrators) influences the disputants’ reactions to various types

of decisions. What has this research concluded? What are the implications for labor

arbitrators or for managers?

Possible references:

Allen, R. (1998). Subordinate aggression against managers: Empirical analyses of published arbitration

decisions. International Journal of Control Management, 9, (3), 234-258.

Maurer, K. (2003). Enforcing consumers’ and employees’ legal rights: 12 myths about arbitration.

Washington State Bar News, 57, 30-33.

Meyer, D. (2002). Problem creation and resolution in unionized workplaces: a review of the grievance

procedure. Labor Studies Journal, 27, 3, 81-114.

Rahim, M. A. (Ed.) (1989). Managing conflict: An interdisciplinary approach. Westport, CT: Praeger.

Sitkin, S. B., & Bies, R. J. (1993). Social accounts in conflict situations: Using explanations to manage

conflict. Human Relations, 46, (3), 349-370.

10. What is the relationship between arbitration and the courts? What should that

relationship be? Support your arguments.

Possible references:

Applee, B.M. (2003). Bench trials may prove better for employers than arbitration. The Los Angeles Daily

Journal, 116,79, 7.

Deitsch, C. R., & Dilts, D. A. (1990). Arbitrability in a post Bowen world: A minefield for all. Arbitration

Journal, 45, (2), 45-51.

11. What role does “past practice” play in arbitrator decision making? How important

should “past practice” be?

Possible references:

Applee, B.M. (2003). Bench trials may prove better for employers than arbitration. The Los Angeles Daily

Journal, 116,79, 7.

12. Several researchers have attempted to develop mathematical models to systematically

describe the way arbitrators approach cases. Briefly describe some of these efforts.

Have these researchers been successful? Of what value (if any) is this type of research?

Support your arguments.

Possible references:

Ballenger, M.T. (2003). The price of justice: the role of cost allocation in the employment arbitration

13. What factors, other than the facts of the case, typically influence an arbitrator’s

judgment and decision? Is this a problem? What, if anything, should be done?

Possible references:

Ballenger, M.T. (2003). The price of justice: the role of cost allocation in the employment arbitration

fairness analysis. The Labor Lawyer, 18, 3, 485-511.

14. Using case materials (e.g., labor arbitration reports available in many reference

libraries), review a sample of arbitrators’ decisions in 20-25 similar cases in the past 10

years. Focus on a specific type of case (e.g., safety violations, discipline, drugs,

termination, etc.) and determine: What factors appear to affect arbitrators‘

judgments? What criteria do arbitrators use in making their decisions? Have these

criteria changed during the past 10 years? What advice would you offer to union

leaders and managers based upon your legal research?

15. Some companies have experimented with grievance procedures other than

conventional binding grievance arbitration. How well do alternative procedures work?

Possible references:

Block, R. N., Beck J., Olson, A. R. (Oct. 1996). A look at grievance mediation. Dispute Resolution

Journal, 51, (4), 54-62.

16. Write a term paper about issues related to unionized workers and the Americans With

Disabilities Act. You might consider some or all of the following issues: Suppose a

worker is disabled under the Americans with Disabilities Act (ADA). Should he be

given preferential job assignments (under the “reasonable accommodation” provision

under the law), even if it violates the seniority clause of the collective bargaining

agreement? If the worker has a complaint, should he or she file a claim with the

government? Or should the worker use the union’s contract grievance procedure? If

the grievance procedure is used, how do arbitrators typically handle such cases?

Possible references:

Adam, J. G. (1999). Arbitration of statutory claims: The Wright decision but the wrong dictum. Labor Law

Journal , 50, (4), 275-279.

Meyer, D. (2002). Problem creation and resolution in unionized workplaces: a review of the grievance

procedure. Labor Studies Journal, 27, 3, 81-114.

Minnesota State Bar Association (1996). The 23rd annual labor & employment law institute. St. Paul, MN:

Labor and Employment Law Institute.

17. What are some current issues with Alternative Dispute Resolution (ADR), which is

often used to resolve individual employment disputes and business disputes?

Possible references:

Cohen (2003). Relative Satisfaction with ADR: Some Empirical Evidence. Dispute Resolution Journal, 57,

4, 36–41.