Law Commons^™

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

Ariana R. Levinson

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

The Nlra Defamation Defense: Doomed Dinosaur Or Diamond In The Rough, Kati Griffith

Kati Griffith

[Excerpt] This Article explores an underappreciated and promising NLRA protection of collective activity. It elaborates the NLRA’s role as a defense in state defamation cases. Specifically, this Article explains how the “NLRA defamation defense” frees defendants from some forms of defamation liability when the allegedly defamatory statements are made during labor disputes. The defense has no effect on defamation liability in what this Article refers to as “more egregious” state defamation law cases. However, the defense forecloses liability in “less egregious” state defamation law cases. It makes it harder for defamation plaintiffs to win their cases because it requires them …

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

University of Michigan Journal of Law Reform

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

What Finra Can Learn From Major League Baseball, Ben Einbinder

Pepperdine Dispute Resolution Law Journal

The article presents information on the arbitration system formed by the Financial Industry Regulatory Authority (FINRA) with respect to the arbitration under the employment disputes in the financial industry. The arbitration models created by FINRA examine the disputes in the securities industry. Information on the impact of the Major League Baseball and its works on the employment disputes are also presented.

Contracting Employment Disputes Out Of The Jury System: An Analysis Of The Implementation Of Binding Arbitration In The Non-Union Workplace And Proposals To Reduce The Harsh Effects Of A Non-Appealable Award, Michele M. Buse

Pepperdine Law Review

No abstract provided.

A Post-Pierce Program: Using Idr To Improve The Los Angeles Fire Department's Current Complaint And Disciplinary Procedure , Jacklyn Pawlowski Floryan

Pepperdine Dispute Resolution Law Journal

Having an alternative to litigation is important for employees and employers in all organizations and corporations. One such option is through internal dispute resolution (IDR) mechanisms. IDR mechanisms are alternative processes used instead of litigation to solve a dispute in its early stages. When organizations and corporations do not have an established set of mechanisms in place or the employees are unaware of the procedure, lawsuits result. The Los Angeles Fire Department (LAFD) is one such organization that does not have a strong, established IDR procedure in place. This paper analyzes the LAFD's current complaint and disciplinary procedure and how …

The Moral Dimension Of Employment Dispute Resolution, Theodore J. St. Antoine

Articles

Dispute resolution may be viewed from the perspective of economics or negotiation or contract law or game theory or even military strategy. In this Article, I should like to consider employment dispute resolution in particular from the perspective of morality. I do not necessarily mean "morality" in any religious sense. By "morality" here I mean a concern about the inherent dignity and worth of every human being and the way each one should be treated by society. Some persons who best exemplify that attitude would style themselves secular humanists. Nonetheless, over the centuries religions across the globe have played a …

Final Offer Arbitration: The Last Word In Public Sector Labor Disputes, Rena Seplowitz

Rena C. Seplowitz

No abstract provided.

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

Brief Amicus Curiae Of The National Academy Of Arbitrators In Support Of Respondents, 14 Penn Plaza V. Pyett, No. 07-581 (U.S. June 27, 2008), James Oldham

U.S. Supreme Court Briefs

No abstract provided.

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

Articles

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

My first visit to China, in 1994, was purely as a tourist, and came about almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October I was scheduled to begin teaching a one-term course in American law as a visiting professor at Cambridge University in England. Despite my hazy notions of geography, I realized it made no sense to return to the United States for the intervening week. The obvious solution was to continue flying …

Adr Without Borders, Theodore J. St. Antoine

Articles

My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

The editors have asked us to be quite personal in our ruminations on the future of comparative labor law and policy. For me, over the past several years, the focus has been on China. My first visit to China in 1994, purely as a tourist, was almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October, I was scheduled to begin teaching a oneterm course in American law as a visiting professor at Cambridge University …

Consumer And Employment Arbitration Law In Comparative Perspective: The Importance Of The Civil Jury, Stephen J. Ware

University of Miami Law Review

No abstract provided.

Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight

University of Miami Law Review

No abstract provided.

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

Articles

One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that …

Arbitrator's Jurisdiction To Determine Arbitrability Of Labor Disputes Under Public Sector Collective Bargaining Agreements: Is The Arbitrator's Jurisdiction To Decide Arbitrability In The First Instance The Worst Of Both Worlds - Mclaughlin V. Chester Upland School District, An, Brian D. Kennedy

Journal of Dispute Resolution

The general rule permitting pre-arbitration adjudication of arbitrability has been criticized as an invitation to forum-shopping and a "race to the courthouse," an unnecessary obstacle to expeditious resolution of labor disputes,6 and a bad faith attempt by one party (usually the employer) to breach a contractual commitment to arbitration.7 Overruling a number of its own precedents following this majority rule, the Commonwealth Court of Pennsylvania recently held in McLaughlin v. Chester Upland School District that an arbitrator has the sole and exclusive jurisdiction in the first instance to decide the arbitrability of a labor dispute arising out of a public …

Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine

Articles

A unifying theme of this Symposium is as old and enduring as the common law: when and how can a well-established, successful adjudicative institution be adapted to meet the demands of new and substantially different situations? There have been splendid triumphs of transference, such as Lord Mansfield's appropriation of the law merchant in the eighteenth century as a major building block of modem commercial law. There have also been embarrassing failures, like the abortive effort to transport American labor law concepts en masse into the alien British environment of the early 1970s. The common question confronting the participants in this …

Settlement Of Labor Disputes In Mexico, Oscar De La Vega Gomez

University of Miami Inter-American Law Review

No abstract provided.

Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine

Articles

Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …

Final Offer Arbitration: The Last Word In Public Sector Labor Disputes, Rena C. Seplowitz

Scholarly Works

No abstract provided.

The Labor Board And The Arbitrators, Theodore J. St. Antoine

Other Publications

The Labor Relations Law Section of the State Bar of Michigan held its second program of the current year, from May 27 through May 30, 1967 on Mackinaw Island, on a variety of subject matters with excellent presentations by the resource people conducting each of the various symposiums. Those who were unable to be present in this joint venture of pleasure and legal presentations will be able to at least vicariously "gather in the sheaves" of the legal wisdom disseminated during the program by the report contained herein. For those who were fortunate enough to attend plus those who didn't, …

Lectures On The Law And Labor-Management Relations, University Of Michigan Law School

Summer Institute on International and Comparative Law

The 1950 Summer Institute on International and Comparative Law recognized the great importance, all over the world, of the problems of labor-management relations and the accelerating pace of development of labor law. The Institute sought, through the techniques of lecture, comment, and panel discussion, to provide a basis for an informed appraisal of some of the most challenging questions in this area.

For the most part the program dealt with the problems arising in the attempt in the United States and in other countries to develop and apply legal standards to labor-management relations. Underlying the legal framework, however, are major …

The Constitutionality Of Compulsory Arbitration, Bernard Schwartz

Kentucky Law Journal

No abstract provided.

Validity Of War Labor Board Orders Of Union Security And Compulsory Arbitration Under The War Labor Disputes Act, Reynolds C. Seitz

Kentucky Law Journal

No abstract provided.