Labor Arbitration Research Articles

The Problem of the Missing Witness: Toward an Educator-Facilitator Role for Labor Arbitrators

The Problem of the Missing Witness: Toward an Educator-Facilitator Role for Labor Arbitrators

Reinstatement as Human Rights Remedy: An Evolving Jurisprudence

Although the power to reinstate has been a long-standing component of human rights legislation in Canada, it is little used. Human rights applicants only rarely seek reinstatement and human rights tribunals across Canada have ordered reinstatement in only a handful of cases. Interestingly, even in those limited cases where human rights tribunals have reinstated an employee, there has been little discussion of the applicable principles. Human rights tribunals have not fully fleshed out how to determine whether reinstatement is the appropriate remedy, nor have they developed clear guidelines as to how employees should be compensated in circumstances where they are not reinstated. This stands in stark contrast to the unionized environment. In that context, where an employer fails to establish just cause for termination, reinstatement is the presumptive remedy and a grievance board or arbitrator will refuse to reinstate an employee only in exceptional circumstances. A significant body of arbitral jurisprudence has developed around the remedy of reinstatement, the exceptional circumstances in which it will not be ordered, and the principles governing compensation in lieu of reinstatement. This paper considers whether human rights tribunals should apply the principles emerging from arbitral jurisprudence or whether they should maintain a distinct, human rights approach to reinstatement. This is a potentially significant issue because human rights tribunals and labour arbitrators often deal with similar issues. In Ontario and British Columbia, labour arbitrators do not have exclusive jurisdiction, and a unionized employee may opt to file a human rights complaint rather than go through the grievance arbitration process.

What the Awards Tell Us about Labor Arbitration of Employment Discrimination Claims

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 actions, discovery, and a union's duty of fair representation.

Labour Arbitration of Co‐Worker Sexual Harassment Cases in Canada

AbstractWomen have the right to a workplace free from sexual harassment under Canadian provincial and federal human rights legislation. Canadian labour laws incorporate the right to a grievance procedure including binding arbitration where arbitrators must interpret and apply human rights legislation. This paper analyzes co‐worker sexual harassment cases in order to assess how well arbitrations protect the right of unionized women to a harassment free workplace. Results indicate that women complainants were often subjected to aggressive gendered cross‐examinations and the application of gendered jurisprudence that largely ignored the impact of gendered power relations in the workplace. The conclusion is that women's experiences in arbitrations are likely a deterrent to filing formal complaints, effectively undermining rather than protecting their rights. Copyright © 2012 ASAC. Published by John Wiley & Sons, Ltd.

Labor and Commercial Arbitration under the California Arbitration Statute

Labor and Commercial Arbitration under the California Arbitration Statute

American workplace dispute resolution in the individual rights era

This article presents a theoretical conceptualization of the rise of alternative dispute resolution and its impact on American employment relations in the individual rights era. The idea of an industrial relations system advanced by Dunlop is no longer a plausible general approach for understanding American employment relations given the decline of organized labor. This article examines the question of whether a new individual employment rights-based system of employment relations has replaced it. The old New Deal industrial relations system was based on three pillars: labor contracts that provided a web of rules governing the workplace; economic strikes, actual or threatened, which provided the bargaining power for unions to negotiate these contracts; and labor arbitration, which provided the workplace dispute resolution mechanism for enforcing these contracts. The institutions of the new individual employment rights era can be seen as based on three parallel elements: individual employment rights provide the new web of rules; litigation, actual or threatened, provides the new source of bargaining power for employees; and alternative dispute resolution procedures provide the new workplace-based mechanism for enforcing individual rights. However, each of these elements contains substantial limitations, which makes the institutional structures of the new individual employment rights era something different from a new Dunlopian integrated system.

The Fiftieth Anniversary of the Steelworkers Trilogy: Some Reflections on Judicial Review of Labor Arbitration Decisions - Will Gold Turn to Rust?

In 1960, in the landmark Steelworkers Trilogy, the United States Supreme Court enthusiastically endorsed arbitration of grievances in private sector labor management relations. As a means of efficient and effective dispute resolution, labor arbitration was perceived as far superior to external litigation in court; labor arbitration was, and is, quicker and less expensive than most litigation. Over the course of the past half-century, the Supreme Court has reiterated and reaffirmed the classic benchmark principles of judicial deference to labor arbitration that the Court unequivocally elucidated in the Trilogy. With increasing frequency, however, some activist judges on the lower federal courts are seemingly predisposed to vacate labor arbitration decisions simply because the judge does not like the particular substantive result of the particular labor arbitration decision. This propensity of some of the lower federal courts to set aside labor arbitration decisions reached its zenith (or nadir, depending on one’s perspective) in the Sixth Circuit in 2006. This essay examines the Sixth Circuit experience with some particularity, analyzing what that Circuit’s pre and post 2006 practical experience and jurisprudence may auger for the future of labor arbitration, and of Alternative Dispute Resolution more broadly, in this 50th anniversary year of the Steelworkers Trilogy.

A Comparison of Participant Evaluation of the Procedural and Distributive Elements of Chinese Labor Arbitration Committee Mediation Versus Equal Employment Opportunity Commission Mediation

The authors surveyed participants in U.S. Equal Employment Opportunity and Chinese Labor Arbitration Committee mediations. Similar questions relating to the mediations’ procedural due process and substantive due process elements were administered. The similarities and difference in the two dispute resolution processes are fully described. These data indicated that the Chinese LAC mediation compared favorably with the very successful EEOC mediation program. The results contribute to the broad discourse concerning workers’ rights and the development of rule of law in China. They also suggest that the heavily evaluative Chinese process leads to higher ratings on mediator performance. Finally, these results suggest that the Chinese participants’ perceptions of procedural and distributive justice are closely aligned while the U.S. participants distinguish between the process provided and outcome obtained.

Nor-Man Regional Health Authority: Labour Arbitration, Questions of General Law and the Challenges of Legal Centrism

Nor-Man Regional Health Authority: Labour Arbitration, Questions of General Law and the Challenges of Legal Centrism

2010 ACADEMY OF MANAGEMENT BEST PAPER ABSTRACTS.

Academy of Management Annual Meeting Proceedings includes abstracts of all papers and symposia presented at the annual conference, plus 6-page abridged versions of the “Best Papers” accepted for inclusion in the program (approximately 10%). Papers published in the Proceedings are abridged because presenting papers at their full length could preclude subsequent journal publication. Please contact the author(s) directly for the full papers. Articles2010 ACADEMY OF MANAGEMENT BEST PAPER ABSTRACTS.Published Online:30 Nov 2017https://doi.org/10.5465/ambpp.2010.54503560AboutSectionsPDF/EPUB ToolsDownload CitationsAdd to favoritesTrack Citations ShareShare onFacebookTwitterLinkedInRedditEmail AbstractThe article presents abstracts on management topics which include the use of arbitration mechanism in technology partnerships, the role of bridge network as a device for transferring collectively held knowledge, and a meta-analysis of business group performance, context and strategy.FiguresReferencesRelatedDetails Vol. 2010, No. 1 Permissions Metrics in the past 12 months History Published online 30 November 2017 Published in print 1 August 2010 InformationCopyright of Academy of Management Journal is the property of Academy of Management and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder’s express written permission. However, users may print, download, or email articles for individual use.KeywordsABSTRACTSMANAGEMENT -- AbstractsLABOR arbitration -- AbstractsKNOWLEDGE management -- AbstractsMETA-analysis -- AbstractsDownload PDF

CHINESE LABOUR CONTRACT ARBITRATION: ‘NO UNION, NO PROBLEM’

There has been an explosion of labour contract disputes in China. As individual and collective labour disputes have increased, the Chinese government has encouraged the channelling of these disputes into the mediation and arbitration process and away from street protests, spontaneous strikes, and other collective action. To date, the research on the performance of labour arbitration indicates mixed results, and is largely based on qualitative research. Consequently there is limited empirical evidence on which to assess how workers and employers rate their Labour Arbitration Bureau (LAB) dispute resolution experience. In the first study which uses quantitative survey data to explore this issue, we examine participant attitudes towards arbitration. Using a survey administered to disputants (employer and employees) in the city of Dalian, Liaoning Province, we examine the extent to which labour arbitration has met the needs of the parties. Qualitative interviews with disputants and lead arbitrators were used to triangulate survey findings. Contrary to expectations, our survey data indicate that unions were not generally involved in advocating for the rights of the employee. Nonetheless, respondents in our study reported high levels of satisfaction with the arbitration process on a range of procedural due process and substantive due process measures. Results suggest disputants were typically satisfied with the arbitration, believed that the arbitration was fair, and were willing to recommend it to others as a method for resolving labour contract disputes. Demographic data indicate that the process was also inclusive, with less educated workers, migrant workers, and women, all participating.

Impactful Case Summaries: an Analysis of Developing Arbitral Jurisprudence in the United States

ABSTRACT: The Miami Arbitration Reports cover a number of topics, all of them relevant to the in­tersection between American law and international arbitration. This collection begins with a number of eye-catching decisions. First, the Sixth and Second Circuits have resurrected the non-statutory ground of "manifest disregard" for vacating an arbitral award. After what seemed like the final word from the US Supreme Court, it looks like the law is continuing to diversify and provide greater un­certainty. Second, the battle to obtain discovery in the United States in aid of private international Tribunals has started to really become interesting. At first, it appeared that the Federal courts would routinely enforce petitions for discovery, but the Southern District of Texas has taken a different path and laid down a challenge to other courts throughout the country. Third, the Fifth Circuit has defined the standard for non-signatories to compel arbitration, but the standard raises questions about the Federal policy favoring arbitration and conflicts over the effectiveness of the standard. And finally, in a case that is very important for those working with consumer contracts, the Eighth Circuit has taken great efforts to provide a workable standard for class action waivers. Then the Reports return to de­velopment of the case law after Hall Street. The Ninth Circuit takes up the challenge to interpret Hall Street and the definition of manifest disregard. After noting changes in the Second and Sixth Circuits last edition, the Ninth Circuit adds its voice to the conversation. Second, we profile the Arbitration Fairness Act and its potential effects on American law. With a new President and Congress, many people expect the Act to be passed, and it is crucial to understand it and how it can impact any arbitration with certain connections to American law. Third, the Third Circuit has delved into maritime law to decide how a party can secure a potential arbitral award by beginning proceedings against the ship. The decision has a complex factual and procedural history, and it has a significant impact for litigation arising from contracts on the high seas. And finally, the Eleventh Circuit has charted a course for courts to punish recalcitrant parties who abuse the appellate process by challenging arbitral awar­ds under the manifest disregard standard. These cases seek to stem the tide of unnecessary appeals that dramatically slow the arbitration process. To finish the collection, the Reports conclude with a number of interesting cases. First, we discuss the decisions in both the United States and France regarding the ability of parties to blame the institution for aspects of the award or proceedings that do not work out according to plan. While none of the courts sided with the parties seeking relief, none of the courts closed the option. In the future, we might see more cases against arbitral institutions, and it is important to note the developing trend. Second, we return to the topic of manifest disregard one more time to see how another court interprets the Supreme Court's opinion in Hall Street. This decision is particularly interesting due to its discussion of the history of arbitration and the strength of the opinion relative to the other courts of appeal. Third, we venture into the world of labor arbitration. While many readers may not be particularly familiar with the topic, the Supreme Court has written a thought provoking opinion with implications for the international arbitration community. Finally, we analyze a recent decision from the D.C. Circuit that discusses two important topics: arbitration in the context of joint venture agreements and the length of time an arbitral clause can survive.

Mandatory Labor Arbitration of Statutory Claims, and the Future of Fair Employment: 14 Penn Plaza V. Pyett

By its 5-4 sharply divided decision in 14 Penn Plaza v. Pyett, 556 U.S. (April 1, 2009), the United States Supreme Court dramatically endorsed mandatory labor arbitration, rather than external litigation, to resolve labor union-represented employees’ statutory claims of unlawful age-based employment discrimination. The Court summarily isolated and trivialized as jurisprudentially obsolete, but did not deem it necessary to formally overrule, 35 years of well-established precedent that had protected the employee’s right to litigate de novo statutory claims of unlawful employment discrimination, without suffering any res judicata or collateral estoppel effects from a prior adverse arbitration decision. The Court substantially clarified, and perhaps simplified, what had become an increasingly complex and potentially inconsistent panorama of decisions as to whether labor union-represented employees can be mandated to arbitrate, and thus be foreclosed from litigating de novo, statutory claims, most frequently and most classically, those alleging unlawful employment discrimination by the employer. By its controversial activist methodology, the political, ideological Court ran roughshod over stare decisis principles. A host of questions, ramifications, and unintended consequences could well transform the dynamics of arbitration well beyond the present contours of labor-union represented employment environments. This article will critically assess the salient foreseeable consequences and likely ramifications of the Pyett decision. On the eve of a half-century of Supreme Court enthusiasm for labor arbitration, grounded in the landmark Steelworkers Trilogy in 1960, the Pyett decision perhaps reached the correct result, favoring a single, globalized, omnibus arbitration, rather than second bites at the apple in serial litigation. But, the Court engaged in deeply problematic, severely truncated reasoning to reach this result. Unfortunately, Pyett is not the rare exception. The phenomenon of the Court reaching the correct result, but through badly fractured and spasmodic reasoning, while not the norm, occurs with some frequency. Pragmatically, a sound functional result from a problematic and jagged opinion undeniably is markedly superior to an elegant theory yielding an obsolete, wrong result. The great practical utility of these quintessentially Lincolnian principles is palpable in labor and employment law. Pyett is certainly not the first, and will not be the last, decision of the Court that, while not elegantly grounded in sophisticated jurisprudential metaphysics, may nevertheless work well and yield just and fair results for employees, employers, and unions who favor a single, integrated arbitration forum for the resolution of all contractual and statutory claims. Meanwhile, those employees, employers, and unions wishing to retain independent judicial recourse for litigating statutory claims are not precluded from doing so, and are left unaffected by, the Pyett decision.

A ‘sea change’ for collective bargaining as the U.S. Supreme Court permits unions to agree to arbitration for discrimination claims

AbstractLast month's U.S. Supreme Court decision in 14 Penn Plaza LLC v. Pyett may signal a big change in the skills needed by labor arbitrators, according to Christopher Walsh, of Newark, N.J. He analyzes the case and tells readers what to expect as a result of Justice Clarence Thomas's majority opinion.

Do Arbitrators Use Just Cause Standards in Deciding Discharge and Discipline Cases? A Test

This study used a rule induction, as a form of “machine learning” for pattern recognition to examine an alleged common law put forward by Arbitrator Carroll Daugherty regarding key factors used by labor arbitrators in the United States to decide discipline and discharge cases. Control variables for public sector or private sector origin of the case and characteristics of the aggrieved employee(s) or of the arbitrator were not found to influence arbitral thought. However, the alleged common law identified by Carroll Daugherty provided a set of rules which had a hit ratio of nearly 90% indicating strong support for there actually being a common law developed over the period examined. This scientific evidence supports the hypothesized common law of just cause for discipline being applied by labor arbitrators. Further, the existence of such common law should provide greater predictability and consistency to disciplinary proceedings and may be useful in examining similarly situated decision-making activities in arbitration, law, and other professions.

Letting Defendants Decide Whether Plaintiff May Sue Them: An Analysis of 14 Penn Plaza v. Pyett

The Supreme Court has granted certiorari in 14 Penn Plaza v. Pyett, raising the question whether employees represented by unions may be required to submit individual statutory claims of discrimination to the union for labor arbitration. This would require reversal of the Court's 1974 decision in Alexander v. Gardner-Denver Co. This Article argues that Alexander should not be reversed. Adhering to the Alexander rule would maintain the modern concept of the employment relation as a set of independent legal claims, with a bright line among them, each of which is enforced by whatever mechanism state legislatures or Congress has devised, none of which is fungible with another. This rule has been in effect for at least thirty years. No one has identified any social problems or costs associated with it. Affirming the Court of Appeals in Pyett would have the benefits of adherence to clear precedent that has shaped collective bargaining agreements and arbitration clauses. By contrast, reversing the Court of Appeals in Pyett will put into doubt at least eleven distinct Supreme Court precedents permitting employees represented by unions to sue to enforce their rights rather than submit them to arbitration. It will force the Court into a lengthy future chain of cases to determine whether all employee claims may be stripped by collective agreements and sent to arbitration, or only some of them; whether particular language in collective bargaining agreements will be needed to strip employees of statutory rights, or not; whether all dispute resolution institutions might substitute for arbitration, or only some of them; whether standards for fair representation need to be revised if unions are representing employee statutory rights, or not; whether new institutions are needed for protecting employees whose unions refuse to enforce their statutory rights, or not; and whether the deferential standard of judicial review of arbitration awards changes when these deal with statutory rights, or not.

Labour Disputes and their Settlement in China: A Systematic Review of the Post–Reform Research

This study systematically reviews the literature on labour disputes and their management in China. It reveals that there have been widespread labour disputes, especially collective disputes, resulting from the violation of workers’ rights in every aspect of employment relations. While labour disputes in state–owned enterprises (SOEs) are mainly caused by workforce reduction and non–payment of wages and insurance contributions due to insolvency and bankruptcy, those in foreign–invested enterprises (FIEs), particularly the East Asian–owned FIEs, and privately–owned enterprises (POEs), are caused by nonpayment of wages and insurance and increasing industrial accidents resulting from profit–oriented management strategies. China has developed a third labour dispute management system with distinctively Chinese characteristics, and it is different from the old systems whereby labour disputes were resolved via the state administration or by Western practices such as collective bargaining. The third way is characterized by reliance on labour arbitration and judicial channels and management–state bipartism for resolving disputes. Contributions to theory and implications for practitioners and research are discussed.

Political Ideology and Labor Arbitrators' Decision Making in Work–Family Conflict Cases

Labor arbitrators were asked to render decisions about grievances brought by employees who had been fired because of problems created by work conflicts with family responsibilities. The study examined the effects of experimentally manipulated grievant attributes (gender, type of work-family conflict) as well as arbitrator attributes (gender, political ideology) on decision making. When employees were depicted as having had child care problems, liberal arbitrators tended to favor female over male grievants, and political conservatism predicted more favorable judgments rendered toward male grievants. Overall, the data suggest that child care responsibilities cue different patterns of gender bias among liberal and conservative decision makers.

Getting Paid: Processing the Labor Disputes of China's Migrant Workers

Many of China's 150 million migrant workers travel from their rural homes to labor in the cities each year only to have their wages withheld by their employer. This phenomenon has led to riots, protests and violence by frustrated migrants. Therefore, finding a better means for resolving these wage disputes is crucial to preserving China's social stability. This article examines the various paths that migrants can take to get this money back. It argues that despite government attention to this problem, the formal dispute resolution system of arbitration and court tribunals has failed these workers because it is both inaccessible to them and ineffective at resolving their disputes. Instead, informal mediation is a far more suitable and effective means of inducing employers to pay the wages owed to the workers. Moreover, a case study of the organization Little Bird reveals how NGOs may be more successful at mediating these disputes than are government officials. This article is based on over two years of fieldwork in China, which includes countless interviews of the actors involved in the labor dispute resolution system, a review of internal government reports, Chinese laws and regulations, media reports, official handbooks and scholarly articles, as well as the observation of several labor arbitrations and mediations. In concluding, the article considers the options for reforming the China's labor dispute resolution system, the significance of the 2007 Labor Dispute Mediation and Arbitration Law, and the implications of this paper's findings on the rule of law and social stability in China.

Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada

The rise of the accommodation duty, and particularly the accommodation rights of employees with disabilities, has been the greatest single innovation within Canadian labour law over the past twenty years. High Law principles on disability accommodation have been developed through a series of Supreme Court of Canada rulings, and these principles have been applied through the voluminous Low Law decisions of labour arbitrators and human rights tribunals. This article examines the dismal employment status of employees with disabilities in Canada, traces the emergence of the Supreme Court of Canada rulings, and critically examines the caselaw on disability accommodation from labour arbitrators, human rights tribunals and the common law courts. Although Canadian labour law transplanted the accommodation duty from the early civil rights jurisprudence in the United States, recent Canadian law on disability accommodation has headed in a much different direction than its American progenitor.