For example, examination of external authority and written reasoning may be required for the binding resolution of statutory claims in labor arbitration. For example, examination of external authority and written reasoning may be required for the binding resolution of statutory claims in labor arbitration.
A BRIEF INTRODUCTION TO LABOR ARBITRATION
The History of Labor Arbitration in the US
If a CBA contains an arbitration provision, federal courts are directed to refer disputes about the CBA to arbitration53 without any investigation into the merits of the dispute.54. According to the Supreme Court, the CBA is not merely a contract, but rather "an attempt to establish a system of industrial self-government."55 Often terms in the CBA are vague standards or references intended to evolve over time to be elaborated. as circumstances arise and the workplace and business evolve.
Grievance Arbitration System
The parties expect that his assessment of a particular grievance will reflect ... factors such as the impact on productivity of a particular outcome, its implications for shop morale, his assessment of whether tensions will be increased or decreased. Rau attributes this tendency toward compromise solutions to a desire for repeat business from the parties.
Level of Formality of Labor Awards
THE INEVITABLE TENSION BETWEEN PRIVATE CREATION OF
But see WARE & LEVINSON, supra note 16, at 193 (explaining that some courts may apply a clear disregard of the statutory standard to the review of employment arbitration awards). The Early Normative Debate Over Reliance on Legal Authority The debate over reliance on legal authority is essentially about.
The Early Normative Debate over Reliance on
Howlett argued, in contrast, that arbitrators should follow foreign law and avoid making awards that require illegal acts.”5 He suggested that “arbiters should make decisions about the matters before them based on the language of the contract and the law.” 116 Some indeed The rules on the union workplace originate from legal principles. 34;mutually exclusive" "in theory," in reality "'disputes are often difficult to classify' and in some disputes 'a blurred line ...often exists. According to Howlett, arbitrators are bound by law, and the CBA, like all contracts, includes "all applicable law."1 23 Because contracts are limited by foreign law, "an award that disregards the law may result in error."12 4 Howlett is refuted the idea that some arbitrators should not deal with legal issues because they are not lawyers and pointed out that the NLRB agents who must interpret and apply the law are not all lawyers.12 5.
Ignoring External Authority is Problematic Today
WHAT DO LABOR ARBITRATORS ACTUALLY CONSIDER?
In a 1979 paper, Margaret Oppenheimer and Helen LaVan considered arbitral awards made in disputes involving employment discrimination.168 The data set consisted of "[a]ll discrimination cases from March 1973 to November 1975 reported in [BNA's] Labor Arbitration Reports," a total of eighty-six cases. 169 Awards "cited federal or state law or EEOC guidelines in 60[%] of the cases and cited court decisions in 40[%] of the cases. Her study found that 55 of the 106 cases cite statutory issues" in the discussion section (in as opposed to only in. One of Greenfield's primary conclusions is that the majority of awards examined failed to "create a record sufficient for review" by the Board'194, which had deferred to the arbitrator's decision.
About half of the arbitrators will only cite external law where the parties have cited legal authorities. About 30% of the arbitrators will cite external law "when it seems particularly relevant," even if the parties have not cited legal authorities. A 2005 article by Malin and Jeanne Vonhof noted that “parties' expectations” about reliance on external authority in FMLA-related arbitrations are “evolving” because of the “pervasive influence of the .
The Weaknesses of Some Prior Studies
OUR STUDY
Research Questions
Although we cannot determine precisely from the awards whether a particular arbitrator was a J.D. whether or not we know the service provider, such as AAA or FCMS, and the presence of such a service provider may well be a proxy for whether the arbitrator is a J.D. Relatedly, perhaps having attorney representation of the parties in the arbitration increases the possibility that the arbitrator cites external authority. Recall that according to some views of procedural justice, arbitrators must address the parties' arguments and evidence to show them that their positions have been fully considered.239 Lawyers may be more inclined than other union or management representatives to cite external authority to the arbitrator. when presenting a case, and thus the arbitrators are more likely to cite it themselves in their awards.
Research Data
THE RESEARCH FINDINGS
Section A of this part presents our findings on the frequency with which awards are cited to external legal authority248 and concludes that when we use a data set that eliminates the inherent bias towards external legal authority citation, the incidence of both acceptance and presence of external authority, let alone relying on it, is extremely low. Section B examines whether certain attributes of arbitral proceedings are related to citation to external authority and finds that arbitrations that use service providers or attorney representation are more likely to have arbitrators cite external legal authority in their awards. Section C tests whether certain types of labor arbitration disputes are more closely related to citation to external authority.
We find that labor arbitrations involving statutory claims are slightly more likely to cite external legal authority than claims based on violation of the CBA, but the results required change to be statistically significant. Furthermore, and surprisingly, no CBA claim based on the CBAs' nondiscrimination provisions has been cited to outside authority. Finally, violations of the CBAs' just cause provisions were more likely to be referred to external legal authority than violations of other CBA provisions.
Rates of Citation to External Authority
- Citation to Statutes
- Citation to Cases
- Citation to Administrative Authority
- Citation to Secondary Sources
- Overall Citation to External Authority and
Because the vast majority of arbitrations in our data set involve claims involving violations of the CBA rather than statutory claims, this lack of reliance on statutes makes sense. As shown in Figure 2,256 78, or only approximately 13%, of the awards cite at least one judicial opinion. Moreover, it may suggest that reliance on other labor arbitration awards, which themselves reflect the world of private government, would not be subject to the same biases that encourage greater reliance on external legal authority.
Of the cases where external authority is cited (at least one law, judicial opinion or administrative authority), the majority cite only judicial opinions. Of the ninety-nine judgments that cite external authority, sixty-seven judgments (about 66.7%) cite only judicial opinions (one or more) and no statute or administrative authority. Thirteen out of ninety-nine decisions (about 13%) mention more than one of the three types of external authority statutes, judicial opinion and administrative authority.
Attributes of the Arbitration Proceeding that May Affect
Service Provider Arbitrators Cite More to
As table 1 shows, of the 503 awards that do not cite any external authority (statute, judicial opinion or administrative authority), 355 (about 71%) are awards where there is no indication of a service provider. As table 2 shows, of the ninety-nine grants that refer to any type of external authority (statute, judicial opinion, or administrative authority), forty-seven grants (about 47%) have no indication of a service provider. When we compared the 402 awards in the database with no carrier indication to those written by an AAA or FMCS arbitrator, we found that a statistically significant higher percentage of awards written by carrier arbitrators , refer to external authority.
Note: There is a statistically significant difference in the referral to external authority between no service provider and AAA (at the 1% level) and between no service provider and FMCS (at the 1% level), but there is not a statistically significant difference in the citation to external authority between AAA and FMCS. Note: There is a statistically significant difference in the referral to external authority between no service provider using an individual or panel arbitrator and AAA (at the 5% level) and between no service provider using an individual or panel arbitrator and FMCS (at the . 1% level ). Conversely, the lack of a service provider may reflect the parties' desire for quick and cheap dispute resolution.
Citation to External Authority Rises with
Citing outside authorities increases with legal representation You might assume that when lawyers represent one or more. In contrast, of the 100 judgments in which no party was represented by a lawyer,288 only nine (about 8%) referred to external authority - a statistically significant difference that suggests that the representation of one or both parties by a lawyer correlates with the citation of external authority in the rule of law. the ultimate award. Note: There is a statistically significant difference in citing an external authority when an attorney is involved, and in citing an external authority when no attorney is involved (at the 1% level).
Previous studies have suggested that parties' citation to external authority would increase the likelihood that an arbitrator would cite it in her award. Antoine's survey found that approximately half of the arbitrators will only cite external law where the parties have done so in their submissions.290 The present study empirically verifies the general phenomenon expressed in these survey claims, although we do not from the data can tell when external authority is raised by the advocates. Or perhaps lawyers are more likely to represent the parties in the type of dispute in which external authority is relevant to its proper resolution or where the resolution of the case is difficult and therefore more nuanced reasoning is warranted.
Claim Type and Citation to External Authority
Statutory Claims May Be More Likely to Produce
Because of the small number of awards in our data set addressing a statutory claim (forty-five), we were unable to determine whether arbitrators of different types of statutory claims, such as Title VII versus ERISA, were more likely to refer to external authority not fetch No award in our sample with reference to external authority involved in ERISA; However, ERISA involved twenty-one of those who cite no external authority. ERISA (or any other law).296 As shown in Table 7, when we exclude the twenty-one ERISA cases from the total of thirty-six awards addressing statutory claims that do not cite authority, the difference in probability of arbitrators citing external authority in cases involving statutory claims becomes statistically significant at the 1% level.
Based on this analysis, we weakly conclude that labor arbitrators are more likely to rely on external authority in cases involving a statutory claim than in cases involving breach of contract. The analysis also shows that arbitrators also use external authorities in a number of non-legal cases. Citation of external authorities is lower for CBA discrimination claims and higher for just cause claims.
Citation to External Authority is Lower in CBA
75 of the 99 awards citing external authority involved a negative action. Three hundred and twenty-four of the 503 awards that do not cite external authority involved an adverse action. As shown in Table 12, and previously reported, of the twelve cases where a refusal to accommodate is alleged, only two mention external authority (about 17%).
The immediate Guest Service Manager will respond verbally within three (3) calendar days of the complaint being submitted. If the Area Manager fails to provide a written response within the specified timeframe, an appeal may be lodged at the next step of the complaints procedure. If the complaint is not amended pursuant to Step 2, then within seven (7) calendar days from the date of the written decision of the Area Manager or a date on which the decision or a date on which the decision should have been submitted by the Area Manager, the complaint will be submitted in writing to the designee, the employee relations representative, and the employee union representative or his/her designee will be addressed within twenty-one (21) calendar days of the complaint.
