This article reports our findings on whether labor arbitration awards from 2000 to 2011 refer to an external authority. Empirical investigation can also reveal factors that increase the likelihood that arbitral awards will be referred to an external body.
B ackground
If labor arbitrators more frequently cite external authority for statutory claims, as shown by a sift of our data, examination of external authority and written justification may be required for those claims. Before reporting our detailed empirical findings, we provide background on labor arbitration in Part I.
History of Labor Arbitration
For example, if, as our data suggest, labor arbitrators consider external law more often when lawyers represent the parties, representation may be legally required in other settings. In Part II, we set out the problem facing arbitrators as to whether they should consider external law, the debate over whether they should, and report on the few other empirical studies of reference to external authority.
The Grievance Arbitration System
When employees elect union representation, the union is authorized to bargain with the employer over the terms and conditions of employment.24 The parties negotiate a contract covering workplace issues such as wages, hours, attendance, holidays, benefits and non-discrimination. a The contract is known as a collective bargaining agreement (CBA).26 Most CBAs contain a clause guaranteeing that discipline, including dismissal, will only be for just cause.27 Because outside of the union framework, most employees are hired at will and can be fired for any reason or not at all, just cause is an important contractual protection for union-represented employees.2' Labor arbitrators have resolved disputes over workplace grievances and interpretation of the CBA -ve for hundreds of years as part of a grievance-arbitration system in unionized workplaces. Some CBAs may provide for the parties to obtain a list from a service provider, but then to alternate striking arbitrators from the list until one arbitrator remains.41 CBAs may specify the names of several arbitrators and the parties may rotate. through them or choose from the kicking referee. .
Labor Awards and the Perceived Fairness of Labor
The External Authority Dilemma
Labor arbitrators are faced with a basic choice between limiting their analysis to the interpretation of the CBA on its own terms9 or considering additional authority.60 For example, given that many employment law claims involve statutes, arbitrators may wish to consult them and refer. For example, labor arbitrators may look to external authority for guidance on how to interpret or otherwise give meaning to s.
The Debate over the Binary Choice
A CBA may clearly and unmistakably waive the right to a court hearing and require that a statutory claim be submitted to arbitration." 34; "disputes are often difficult to classify" and there is often a "blurred line" in some disputes.'' 4 He argued that arbitrators are bound by law and that all contracts incorporate "all applicable law".sa If an award does not take into account foreign law limiting the CBA, it risks error.8 6 Howlett was not interested in the possibility of non-lawyers handling legal questions; after all, many of the NLRB .
The Proposed Middle Ground
First, he asserted that this premise rests on a fiction, because judges first determine the meaning of a contract and only then create the remedy to comply with the law.96 Second, arbitrators derive their authority from the parties' contract. and not by public law, as judges do, and thus must follow the parties' intent over the requirements of the law.97 Reference to governing law can be particularly problematic when the CBA does not mention the potentially conflicting law.98 Mittental argued that in these cases the arbitrator should be able to resolve the contractual issue regardless. AMERICAN UNIVERSITY LAW REVIEW . the employer reluctant to violate the law), "and such inconsistency interferes with the parties' desire for arbitral awards to be final and binding."6.
Others Weigh In
Therefore, arbitrators often resolve disputes over discipline or discharge arising from attendance violations and must consider plans necessary to comply with FMLA-117. Dennis Nolan agrees with Malin that arbitrators today simply cannot ignore the law.1 The parties "incorporated statutory law into their agreements either expressly or by implication."1 19 In several cases, both parties, rather than just one, "began to argue for legal issues, “making it much more difficult for an arbitrator to refuse to consider foreign law.1 20.
The Most Recent Proposal
Labor arbitrators should not consider foreign law sua sponte, instead consider foreign law only when raised by a party.2 9 4. An inquiry into what labor arbitrators actually consider. While extensively studied by labor law experts and labor arbitrators.
The Inquiry into What Labor Arbitrators Actually
An Empirical Study of Arbitration Awards
For example, arbitrators are more likely to consider external authority in cases involving legal claims than in cases involving violations of the collective bargaining agreement. 7 In this context, the fact that the parties to the arbitration are represented by a lawyer may increase the chance that the arbitrator will rely on an external authority. Data published by BNA Labor Arbitration Reports has been an important source used in research into labor arbitration.2 1' But BNA only publishes awards if the arbitrator obtains the consent of the parties and sends the award to BNA.1 4 Some arbitrators choose choose not to do that.
1 Our data set also includes cases where one of the parties invokes an arbitral award as relevant authority. In the latter category of cases, the arbitrators apply the award in a manner similar to other persuasive authority, and the parties to the arbitration did not challenge the outcome of the award.
The Research Findings
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
Three awards are not included in the count because we only have part of the award, and so we can't know if opinions were quoted on parts of the award that we don't have. Four awards are not included in the count because we only have part of the award, and thus cannot know whether administrative sources were cited in part. Four awards are not included in the count because we only have part of the award, and so we cannot know if secondary sources were cited in the parts. the prices we don't have.
Of the 602 awards, ninety-nine awards, approximately 16.4%, cite at least one statute, judicial opinion, or administrative authority. Of the awards that cite external authority—at least one statute, judicial opinion, or administrative authority—most cite only judicial opinions.
Attributes of the Arbitration Proceeding that
Service provider relation to citation to
Of the ninety-nine awards citing some type of external authority (statute, judicial opinion, or administrative authority), forty-seven awards, approximately 47.47%, have no service provider indicated. When we compare the 402 awards in the database where no service provider is indicated to those authorized by an arbitrator designated by the AAA or FMCS, we find that a statistically significant greater number of awards authorized than those assigned by one of the cite the service to the external authority. There is a statistically significant difference in external authority citation between no service provider and AAA (at the 1% level. external authority citation between AAA and FMCS.
Forty-five, approximately 16.01% of awards, showing that no service provider refers to an external authority, while twenty, approximately 28.57% of AAA awards, and twenty-one, approximately 24.14% of FMCS awards , refer to an external authority, which is statistically significant. Note: There is a statistically significant difference in the reference to an 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.
Attorney representation relation to citation
Note: There is a statistically significant difference in external authority citation when a lawyer is involved and external authority citation when no lawyer is involved (at the 1% level). Previous studies have found that parties' citation to external authority increases the likelihood that an arbitrator will cite to an external authority. Antoine's survey found that about half of arbitrators will cite external law only if the parties have cited legal authorities.273 The present study builds on these findings and suggests that parties are more likely to cite external authorities when represented by lawyers, and the likelihood of external authorities being cited by arbitrators is thereby increased.
Other possibilities exist; For example, perhaps arbitrators rely on more external authority when lawyers represent the parties because they believe the lawyers will be more persuaded by or better able to understand authority. Or perhaps lawyers are more likely to represent the parties in types of cases where external authority is relevant to the type of dispute.
Case Type Relation to Citation of External
Statutory claims relation to citation to
As shown in Table 6, we also examined the number of statutory claims citing external authority versus the number of non-legal claims citing external authority. Of the 557 cases in which no statutory claim was filed, ninety judgments, approximately 16.61%, refer to an external authority. Because of the small number of awards addressing a statutory claim (forty-five), we were unable to determine whether or not arbitrators of different types of statutory claims, such as Title VII v. ERISA, were more likely to cite outside authority.
Based on this analysis, we conclude that labor arbitrators cite external authority more often in cases involving a statutory claim than in those involving a contractual breach. The analysis also reveals that in a large number of non-statutory cases, arbitrators are going beyond the analysis required to cite external authority.
Type of claims relation to citation of external
As also shown in Table 9, cases where there was a breach of a just cause provision actually constituted a higher proportion of judgments where an external authority was cited than those where this was not the case. There was also no statistically significant difference between the extent to which seniority cases and all other claims for breach of collective bargaining agreements cite or reference an external authority, as shown in Table 11. As shown in Table 12, additional analyzes confirmed that breach of fair employment contracts. Good cause cases are more likely to involve or refer to external authorities than other forms of collective bargaining violations.
Seventy-five of the ninety-nine awards citing external authority involved an adverse action. Yet, as shown in Table 13, only one of the seventy-five cases cites external authority.
