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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
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
• 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
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
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.
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
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.
© 2017 Cengage Learning®. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.
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.
