Law Commons^™

Judicial Review Of Teacher-School Board Grievance Arbitration: An Extended Empirical Analysis, Perry A. Zirkel

Arbitration Law Review

In recent years, the overall state law framework for teacher-school board collective bargaining has undergone limited revisions. The basic distribution has been that approximately two-thirds of the state laws authorize collective bargaining for public school teachers, with the remaining state laws either silent or prohibitive. During the past fifteen years, a few states have curtailed or eliminated their applicable laws, with the leading respective examples being Wisconsin and Tennessee, and at least one state, Virginia, shifting in favor of collective bargaining.

The courts have added few direct revisions. The Supreme Court’s ruling that agency shop provisions in public sector collective …

The Metastasization Of Mandatory Arbitration, Alexander J.S. Colvin

Chicago-Kent Law Review

Mandatory arbitration procedures have expanded to become a common feature of American employment relations. This article presents the results of a new original survey examining the extent of mandatory arbitration, where it is most commonly used, and which employees it is most likely to affect. Overall, 53.9 percent of private sector business establishments, representing 56.2 percent of nonunion employees, have mandatory arbitration procedures. Larger employers are more likely to have adopted mandatory arbitration, as are workplaces with lower paid employees. Mandatory arbitration is particularly common in California, North Carolina, and Texas, but is widespread nationwide. Class action waivers are included …

The Future Of Class Action Waivers In Employment Agreements: Lewis Creates A Framework For The United States Supreme Court, Meghan Gonyea

Arbitration Law Review

No abstract provided.

Enjoining Politically Motivated Strikes In Federal Courts: The Jacksonville Bulk Terminals Case, Mark A. Ozzello

Pepperdine Law Review

The United States Supreme Court, in Jacksonville Bulk Terminals, Inc. v. International Longshoremen's Association, acknowledged that a work stoppage entirely motivated by political goals constitutes a "labor dispute" within the Norris-La Guardia Act which is prohibited from injunctive relief by a federal court. In so ruling, the Supreme Court found the Boys Markets, Inc. v. Retail Clerks Union and Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO exceptions, which allow an injunction to issue pending arbitration in situations where the dispute underlying the work stoppage is arbitrable, to be inapplicable to the no-strike clause in the collective-bargaining agreement scrutinized. …

Federal Sector Labor Arbitration: Differences, Problems, Cures , Dennis R. Nolan

Pepperdine Law Review

No abstract provided.

Improved Metrics For Workplace Dispute Resolution Procedures: Efficiency, Equity, And Voice, John W. Budd, Alexander Colvin

Alexander Colvin

Many debates surround systems for resolving workplace disputes. In the United States, traditional unionized grievance procedures, emerging nonunion dispute resolution systems, and the court-based system for resolving employment law disputes have all been criticized. What is missing from these debates are rich metrics beyond speed and satisfaction for comparing and evaluating dispute resolutions systems. In this paper, we develop efficiency, equity, and voice as these standards. Unionized, nonunion, and employment law procedures are then qualitatively evaluated against these three metrics.

Employee Voice, Human Resource Practices, And Quit Rates: Evidence From The Telecommunications Industry, Rosemary Batt, Alexander J.S. Colvin, Jeffrey Keefe

Alexander Colvin

The authors draw on strategic human resource and industrial relations theories to identify the sets of employee voice mechanisms and human resource practices that are likely to predict firm-level quit rates, then empirically evaluate the predictive power of these variables using data from a 1998 establishment level survey in the telecommunications industry. With respect to alternative voice mechanisms, they find that union representation predicts lower quit rates, even after they control for compensation and a wide range of other human resource practices that may be affected by collective bargaining. Also predicting lower quit rates is employee participation in offline problem-solving …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

[Review Of The Book We Can’T Eat Prestige: The Women Who Organized Harvard], Richard W. Hurd

Richard W Hurd

[Excerpt] In 1988 the fifteen-year campaign to organize office and laboratory workers at Harvard University ended with an NLRB election win. We Can't Eat Prestige is the most comprehensive examination to date of this compelling story, offering new detail and sufficiently bold assertions to re-ignite a smoldering debate about what this victory means for the future of unions. The author is a highly regarded journalist with thirty years of experience reporting on labor issues. Predictably, the book is extraordinarily well written, weaving a fascinating story of the union's evolution.

Organizing And Representing Clerical Workers: The Harvard Model, Richard W. Hurd

Richard W Hurd

[Excerpt] The private sector clerical work force is largely nonunion, simultaneously offering the labor movement a major source of potential membership growth and an extremely difficult challenge. Based on December 1990 data, there are eighteen million workers employed in office clerical, administrative support, and related occupations. Eighty percent of these employees are women, accounting for 30 percent of all women in the labor force. Among private sector office workers, 57 percent work in the low-union-density industry groups of services (only 5.7 percent union) and finance, insurance, and real estate (only 2.5 percent union). With barely over ten million total private …

Wege Zur Transformation Gewerkschaftlicher Organisationsstrukturen, Martin Behrens, Richard W. Hurd, Jeremy Waddington

Richard W Hurd

[Excerpt] Bei einer länderübergreifenden Betrachtung erweist sich die Neubelebung der Arbeiterbewegung als ein komplexer Prozess des Wandels, der je nach soziopolitischem und ökonomischem Kontext variiert.Zwar lassen sich zahlreiche, vielfältige Gewerkschaftsstrategien und Ergebnisse beobachten, aber dennoch sind in den meisten der untersuchten Länder (Deutschland, Italien, Spanien, Großbritannien, USA) verschiedene Formen der strukturellen Anpassung, wie Zusammenschlüsse und Übernahmen, sowie eine „Rationalisierung“ der internen Gewerkschaftsstrukturen übliche Elemente der Revitalisierungsbemühungen. Auch wenn viele Ansätze zur Veränderung der Gewerkschaftsstrukturen auf der Strecke blieben, so bleiben doch noch eine Reihe von Fällen bei denen Reformen zu den positive Ergebnissen führten,welche die Arbeitnehmerschaft dringend benötigte.

The Failure Of Organizing, The New Unity Partnership And The Future Of The Labor Movement, Richard W. Hurd

Richard W Hurd

[Excerpt] The New Unity Partnership (NUP) has stirred up a firestorm of controversy in union circles. Its inception can be traced to the July 4th holiday in 2003 when five national union presidents gathered for a candid private discussion about the future of the labor movement. The motivation for the summit was concern about the collective inability of unions to reverse their fading fortunes. At this and subsequent meetings the unions considered structural and strategic options to promote union growth, ultimately committing to a form of mutual aid pact to pool resources for coordinated organizing initiatives and to support each …

Contesting The Dinosaur Image: The Labor Movement’S Search For A Future, Richard W. Hurd

Richard W Hurd

[Excerpt] But the increased effectiveness of labor's political activities has not resulted in major improvements legislatively, and now there is a hostile President who opposes nearly every aspect of the union policy agenda. The promise for the future lies in the demonstrated ability to mobilize at the grassroots. But there are recent signs that national unions are breaking ranks and pursuing narrow self interest. The USWA joined with the steel industry to persuade the Bush administration to restrict imports, and even hinted at a possible endorsement for his reelection in 2004 (Murray). The UMWA has praised the president's energy policy, …

Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges

Journal of Dispute Resolution

First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …

Non-Union Member Complaints To Calculation Of Agency Shop Fees: Arbitration Or Judicial Relief - Air Line Pilots Ass'n V. Miller, Ann E. Ahrens

Journal of Dispute Resolution

"Free rider" problems plague any group or association that provides general benefits for its participants. Members may pay a fee, but nonmembers can reap the benefits without expenditure. Labor unions address this disparity through the use of agency shop fees contained in collective bargaining agreements. These fee agreements call for those employees who choose not to join the union to pay their share of the costs of collective bargaining. Labor unions have developed extensive mechanisms in order to calculate the amount of the fee. Employees, who do not want to subsidize activities they do not support, can file complaints with …

Arbitration Agreements: Should A Union Be Allowed To Make Collective Bargaining Agreements That Bind Individuals' Federal Statutory Claims To Arbitration - Brisentine V. Stone & (And) Webster Engineering Corp., Troy Groat

Journal of Dispute Resolution

With the constant increase of employment litigation2 among individuals, unions and companies, the use of arbitration clauses continues to grow each day. While it is clear that arbitration clauses can be beneficial, it is not clear when and in what situations they should be binding, and hence, waive the rights of parties to have their day in court. Against this backdrop, the Brisentine court faced the issue of whether a union, when making a collective bargaining agreement, can bind individual employee's federal statutory rights to arbitration

Modifying The Standard Of Judicial Review Of Labor Arbitration Awards: A Comparison To Administrative Review Hearings - Osram Sylvania, Inc. V. Teamsters Local Union No. 528, Elizabeth Tenorio

Journal of Dispute Resolution

Since their inception during the post-war years, collective bargaining agreements have been the primary method used by unions to get employers to deal with issues of importance to their labor force. However, the past few decades have seen a rapid decline in union membership as well as union effectiveness. 3 This casenote will look at whether or not the instant decision, Zcon, will be a contributing factor in the continuing downward spiral for unions.

Arbitration Agreements: Standard Of Review, Interpretation And Who Is Bound - Kenamerican Resources, Inc. V. International Union, United Mine Workers Of America, Shea Welch

Journal of Dispute Resolution

In KenAmerican Resources, Inc. v. International Union, United Mine Workers of America, the United States Court of Appeals for the District of Columbia Circuit found that a corporation which did not sign an arbitration agreement entered into by an individual who owned both that company, KenAmerican Resources, Inc., and the company that was clearly bound to the arbitration agreement, Ohio Valley Resources, Inc., was not bound by the arbitration agreement. 2 This was because the agent who signed the agreement, Robert Murray, was not acting on KenAmerican's behalf.3

Public Policy Exception: A Narrow Exception To Judicial Review Or An Independent Means Of Avoiding Arbitration Agreements - Exxon Corp. V. Baton Rouge Oil And Chemical Workers Union, The, Elizabeth Tenorio

Journal of Dispute Resolution

The Federal Arbitration Act advances a strong desire to encourage parties in labor management disputes to utilize arbitration in lieu of litigation.' For this reason, judicial review of an arbitrator's award is construed narrowly by three specific provisions? In recent years, a public policy exception to this strict standard of review has developed,4 and its use has exploded. This Note discusses the impact of this public policy exception on both arbitration and judicial forums. In addition, this Note highlights the potential for abuse when the exception is not limited and applied with care.

Judicial Review Of Contract Interpretation By Labor Arbitrators: Whose Brand Of Industrial Justice - Houston Lighting & (And) Power Co. V. Int'l Bhd. Of Elec. Workers, Local Union No. 66, Michael G. Munsell

Journal of Dispute Resolution

The United States Supreme Court has prescribed the deference owed to an arbitrator's interpretation of labor agreements. The Court's decisions have made clear the narrow grounds upon which an arbitration award may be reversed. In Houston Lighting & Power Co. v. Int'l Bhd of Elec. Workers, Local Union No. 66, the employer claimed that the labor arbitrator had exceeded his authority by misinterpreting the labor agreement. The Fifth Circuit Court of Appeals had to weigh the policy of deference to the arbitrator's interpretation against the need to ensure that the arbitrator acted within the authority which the parties to the …

Is Arbitration Final & (And) Binding - Public Policy Says, Not Necessarily - Exxon Shipping Company V. Exxon Seamen's Union, Todd M. Siegel

Journal of Dispute Resolution

In the realm of employment law, management and labor unions enter in collective bargaining agreements to establish employment terms including wages, hours, benefits and grievance procedures.' A typical grievance procedure provides that labor disputes will be resolved through arbitration. Courts are encouraged to defer to collective bargaining agreements. When disputes arise, employees and employers attempt to resolve matters themselves, and if this fails, labor unions intervene and submit grievances to arbitration. Generally, an arbitrator's decision is final and binding, but in limited circumstances the matter is ultimately litigated. One such limited circumstance arose when the courts developed a public policy …

Union Walks In The Sixth: The Integrity Of Mandatory Non-Binding Grievance Procedures In Collective Bargaining Agreements - At & (And) T V. Communications Workers Of America, Afl-Cio, The, Mark Riley Kroeker

Journal of Dispute Resolution

There are many mechanisms short of industrial action which labor unions and employers use to resolve disputes. Anticipating conflict, but aiming to avoid industrial action, the two parties might place an arbitration agreement or other mandatory grievance adjustment procedure into their collective bargaining agreement. This agreement will reflect the parties' understanding as to how disputes are to be resolved. This Note examines the limited circumstances in which the federal courts will enjoin union protest activity carried out in violation of a collective bargaining agreement's provisions regarding dispute resolution. It focuses on the analytic inconsistency of the judicial refusal to enjoin …

Michigan's Binding Summary Jury Trial: Reward Or Punishment - Farleigh V. Amalgamated Transit Union, Local 1251, Thomas G. Glick

Journal of Dispute Resolution

In 1988, the Michigan Supreme Court added the summary jury trial to its arsenal of settlement devices available to trial judges.' Unfortunately, the summary jury trial employed in Farleigh v. Amalgamated Transit Union, Local 1251 failed to meet its goal, and no settlement was reached by the parties.6 Nevertheless, the Michigan Court of Appeals chose to enforce the summary jury verdict,7 thereby drawing into question not only the ability of the summary jury trial to meet the preliminary goal of promoting settlement, but also the larger goal of the accomplishment of justice

Book Review , Rona L. Pietrzak

Journal of Dispute Resolution

ANATOMY OF MEDIATION is a case study of a contract dispute between an opera company and a musicians' union. The facilitated negotiations, which take place over ten days, are presented in the form of an annotated transcript which is introduced by a summary of the four primary purposes of the mediator 5 and the twenty-five topics which are used to accomplish these central purposes. The case study is presented and then dissected in detail in order to describe what the authors call the "keys to success".6 Finally, mini-case studies are used to portray a complex business dispute, a sexual harassment …

The National Labor Relations Act And Collective Bargaining, Nathan P. Feinsinger

Michigan Law Review

The purpose of this paper has been to review the policy-making decisions of the National Labor Relations Board in seeking to effectuate the duty "to bargain collectively" under the National Labor Relations Act, in order to ascertain and appraise their direction.

Labor Law - Picketing - Peaceful Picketing For Recognition By Minority Union, Roger W. Findley S.Ed.

Michigan Law Review

Petitioner union was certified as exclusive bargaining representative of an employees' unit in 1953. When contract negotiations faltered, the union called a strike and began picketing the employer's retail store. The picketing continued for two years during which time the employer permanently replaced the strikers with non-union employees. In 1955 the union lost a new representation election by a vote of 28 to 1 and was decertified. When the picketing persisted, the employer petitioned the National Labor Relations Board, charging the union with an unfair labor practice. The Board, after finding that the union's objective was exclusive recognition, held that …

The Law Of The Collective Agreement, Charles O. Gregory

Michigan Law Review

The Wagner Act contained no law governing collective agreements. Congress left their enforcement to the state and federal courts under the miserable body of common-law rules. Under various theories the courts worried about consideration, mutuality of obligation, duress and public policy aspects as if they were dealing with conventional contracts.

Labor Law - Arbitration - Power Of Arbitrator To Enjoin Union From Continuing Slowdown, Lawrence M. Kelly

Michigan Law Review

An arbitrator, acting under a collective bargaining agreement which called for a "speedy arbitration" procedure, issued an award enjoining the unions from continuing a slowdown in violation of that clause of the agreement forbidding strikes, lockouts, and slowdowns. A Supreme Court order granted the employers' motion to confirm the award and overruled the unions' cross motion to vacate. The unions claimed that the arbitrator, in issuing the injunction, had exceeded the powers granted him under the agreement and had acted contrary to section 876a of the Civil Practice Act (the New York Anti-Injunction Act). The Appellate Division affirmed the order …

Labor Law - Lmra - Status Of A Walkout Prompted By Health Reasons In The Face Of A No-Strike Clause, Robert E. Hammell S.Ed.

Michigan Law Review

The employer and the union were covered by a contract which contained a no-strike clause. In spite of this agreement, buffers in the employer's plant walked off their jobs when a blower in the buffing room failed to carry away dust and cool the area properly. The trial examiner found that the walkout was a protected concerted activity and not a strike, and that the employer had therefore committed an unfair labor practice by refusing to permit the buffers to return to their jobs when the blower had been repaired. On exceptions taken to these findings, the NLRB reviewed and …

Labor Law - Collective Bargaining - Duty Of Employer To Allow Union Time Study, Paul A. Heinen S.Ed.

Michigan Law Review

A dispute arose between the employer and the union as to whether certain duties performed by an employee should be classified as "special assignments" as defined in the labor contract. If these duties were "special assignments" the employee was entitled to a higher job classification. Before arrangements could be made for the third step of the grievance procedure the union asked for permission to enter the plant and analyze the job. Permission was denied by the management and the union filed a charge of unlawful refusal to bargain. The trial examiner found that by refusing the union's request the employer …