Bridget Seery ELR 615 Final Exam - Fall 2023
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ELR 615 Final Exam
Fall 2023
Due in D2L Assignments by 8 pm December 12
Name: Bridget Seery
Please respond to the following questions. Each question is worth 5 points.
1. The seven areas that may result in a successful court challenge of an arbitration award usually fall into one or more of these categories: failure of the award to “draw its essence” from the collective agreement; lack of jurisdiction or authority for the award; arbitral misconduct and procedural unfairness;
gross error or irrationality; violation of the law or public policy; ambiguity, incompleteness, or inconsistency; and a union’s breach of the duty of fair representation. In regard to the first category was provided by a Supreme Court case as the “essence” was not interpreted by the arbitration correctly with the proper spirit of restraint. In the two examples discussed
in the text an arbitrator found that the employee was at fault but that the discipline imposed was too harsh, The Delta Queen Steamboat Co. v. District 2, marine Engineers Beneficial Association,
889 F.2d 599
(5
th
Cir. 1989), cert. denied,
498 U.S. 853 (1990). The court concluded that once the arbitrator found that
the employee was at fault that the contractual authority of the arbitrator to mitigate was no longer present.
In regard to lack of jurisdiction this is self-explanatory as it identifies that the arbitrator had no authority or jurisdiction to rule on a matter. This can occur due to several situations including the arbitrator ignoring the “express provision excluding a particular grievance from arbitration” or “the most forceful evidence of a purpose to exclude the claim from arbitration.” This goes to the question of substantive arbitrability, and the answer should be found in the collective bargaining agreement. When there is no arbitration agreement within a CBA is one scenario or the agreement may limit the arbitrator’s ability to provide a remedy such as when a CBA prohibits modifications of discipline by
arbitrations. There are also potential procedural limitations put in place by CBAs such as timeliness for either party. As well there is the issue of an arbitrator not making a ruling that would “alter, modify, or add to” the CBA with consideration to “the common law of the shop” supported by the Steelworkers Trilogy
. The main area of concern with these cases is that the arbitrator should not rely on external authority as a main source of the justification for their decision and that the main support for their decision should be from the CBA.
For party misconduct it would mean that the party obtained an award using “corruption, fraud, or undue means”. The bar of corruption or fraud is discussed in the text as a physical threat or improper influence. The next part of this issue is entitled arbitral partiality. The book delineates that corruption is rare leaving “evident partiality” which has a high burden of proof of more than the appearance but less than proof. Generally, the arbitrator having a financial relationship with either party, ensuring to follow any agency rules, codes of conduct, and state laws are required as well as prudent. The courts have found that there was not ‘evident partiality’ in cases where the arbitrator is the son of the union’s president; where a binder holding cash was handed to the arbitrator as it was in view of all parties and a joke, drinking with one of the parties to the arbitration after the hearing, previously worked in the law offices of one of the arbitrations representatives, and as in the case of A-Rod leaking information covered by an NDA to the press.
For procedural unfairness a court can vacate an award when an arbitrator has misconduct in refusing to postpone a hearing, refusing to hear pertinent evidence, or other “misbehavior by which the rights of any party have been prejudiced”. The book cites the Supreme Court as the error needing to rise
to be “in bad faith or so gross as to amount to affirmative misconduct”. The main question is if the procedural error denied the party of a fair hearing. Some examples may be not allowing cross examination or refusal of a reasonable continuance, refusal to accept rebuttal evidence without prior warning to the parties, not giving weight to a trial transcript on which a discharge was based on, and an
arbitration officer having ex parte
contact with one of the two parties and using information not presented in evidence during the hearing. It should be noted that federal courts will not set aside due to
state procedural requirements.
Under gross error or irrationality, the Supreme Court attempted to draw a line in the sand that judges should not be reviewing the merits of an arbitration case. While the courts have varied in their standard of these types of cases the issue is that the courts in these cases are reviewing the merits of the
arbitrator’s decision. The party that did not succeed in the award tends to see the outcome as irrational.
The main area of agreement is that the parties must agree to arbitrate any dispute before an arbitrator has the authority to rule on the dispute. For violation of law or public policy the arbitrator can certainly apply it when the language of the
law is incorporated into the agreement, or it is helpful to find contractual meaning, but if the arbitrator cannot find any, the courts will not sustain an order commanding illegal conduct. There are more cases where the court has judicial concern about violations of public policy. An example of termination of an employee for Communist Party affiliation, the arbitrator uncovered it was due to union activity, and determined reinstatement. The court cited federal and state law barring Communist Party activity and voided the reinstatement on those grounds. Generally, courts keep to an ‘explicit public policy’ where there is a safety violation in a workplace where safety is a public policy imperative, nuclear power plants,
airlines, CDL drivers, and chemical manufacturing employees are some industry examples but not inclusive.
The most common area for judicial review is incompleteness, ambiguity, or inconsistency due to the award having defects such as being incomplete- it does not answer the issue; it is ambiguous and cannot be understood; or it is unintelligible. In most of these cases the court remands back to the arbitrator for clarification but often denies enforcement at that point. These cases are also rarely successful as the courts often find a way to make sense of the award.
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Lastly, we have individual challenges in the duty of fair representation which can only occur if a party can prove that the union did not represent them fairly and tainted the award which destroys its claim to finality. The book references a series of cases including Steele v. Louisville & Nashville R.R.,
323 U.S. 192 (1944) and in Vaca v Spies,
386 U.S. 171 (1967) the Supreme Court had an employee move forward with suing their union in a § 301 action for a breach in handling a grievance. The court determined that if the member prevailed in the suit against the union, then or could sue the employer and the union would be liable. Interestingly in Hines v. Anchor Motor Freight Inc.,
424 U.S. 554 (1976) the court concluded that a ‘tainted’ process does not provide a defense for an employer who unknowingly breaches the CBA. In this case there was a joint area committee (JAC) that was comprised of equal numbers of union and employer representatives who acted as an equivalent arbitration panel, the court determined that this undermines the integrity of the arbitral process and removes the finality provision in the contract. Mitchell Rubinstein’s article from the University of Michigan Journal of Law Reform puts forth that claims of DFR litigation claims be adjudicated by union review tribunals instead of
courts and asserts that re-arbitrating the dispute would be a better remedy than money damages. 2.
The issue of off-duty conduct in D&D cases in labor arbitration merited an entire section of our text and is described as the ‘knottiest issue’ in the area of just cause. The consequences of off-duty conduct have evolved since 1944 when Harry Shulman from Yale Law stated that what a person does while not at work is none of the employer’s concern to
having a legitimate interest when the conduct in some way affects the enterprise. The employer must prove that the conduct has a connection to the employer’s business interests. They are able to do this in several ways including showing harm to the company’s reputation, business or product; violation of a company anti-harassment policy and Title VII; show the conduct renders the employee unable to perform their job duties or appear at work; or the conduct leads to refusal, reluctance or inability of other employees to work with the individual. In many cases there is an overlap of the conduct and a potential First Amendment claim by the employee. The
Supreme Court determined in Garcetti V. Ceballos,
547 U.S. 410 (2006) that there is a 2-step inquiry for determining public employee speech that should be protected: is the matter discussed of public concern,
if not then the speech is not protected. If yes, then the next question to be asked is whether the relevant government entity had an adequate justification to treat the employee differently from any other member of the general public. The court did assert a distinction between employee and citizen speech. The book also makes sure to point out that public employees have a higher standard they are held to as opposed to the general public.
3. Of the three possible levels of proof that an arbitrator may use to decide a case, the most prevalently used is preponderance of evidence as the arbitrator need only determine which case seems stronger or which version of the facts seems most likely. It is also used because it is not a criminal case, and this standard is used in civil cases which is most similar to arbitration as a form of non-governmental
civil litigation. In cases where there is discipline or discharge of an employee (D&D) many arbitrators use
“clear and convincing evidence” particularly when there is criminal or immoral behavior on the part of the employee is alleged, which is another part of this question. The last level of proof is beyond a reasonable doubt is used and understood mostly from the criminal court system and is only used in arbitration in extraordinary cases such as D &D where the conduct is criminal and very serious as the discharge will affect the persons employment history much like a criminal conviction. All of these levels of proof are not handled in the same way as a criminal court as the rules of evidence are not analogous. An arbitrator decides what can be included or excluded since the process is to be simple and informal. As well the arbitrator wants to have as much information to understand the situation.
4. Past practice by definition in our text means that a practice adopted by an industry or a shop and
while they may not be in the CBA have become a part of how things are done in the industry or shop. A past practice is created by mutuality, either express or implied, of action as the normal, proper, and exclusive response to particular situation. The practice needs to be clear and consistent, meaning free
from ambiguity, have some significant frequency and duration, and proof that the practice was not a simple gratuity, meaning an act that the employer took that it never intended to become binding, such as a bonus. A past practice can be used to do several things in an arbitration including ‘clarifying ambiguous language’; ‘supplement a silent contract’; or ‘contradict apparently unambiguous contract language’. A past practice has a couple of ways to be terminated which are through mutual consent in writing, words, action, or inaction. 5.
Substantive arbitrability is when the arbitrator must determine if the arbitration agreement applies to the dispute in question. In this circumstance the issue is that one of the parties claims that the subject matter is not eligible for arbitration which is for the arbitrator to decide this question of arbitrability. In the arena of substantive arbitrability the Supreme Court had the infamous Steelworkers Trilogy
which limited the courts’ role in determining these kinds of cases on appeal by limiting courts to decide if the party wanting arbitration has a claim that on its ‘face is governed by the contract.’ The book points out that the more specific the language regarding arbitration the greater the chance a court will refuse to order arbitration. There is also discussion of substance about being fair to the CBA by honoring the agreement between the parties.
Procedural arbitrability is whether the party seeking arbitration has satisfied the procedural conditions established in the contract. These procedures can be time deadlines, exhaustion of internal grievance procedures, mootness, lack of specificity, and lack of a proper initiating party. In John Wiley & Sons, Inc. v. Livingston 376 U.S. 543 (1964) the decision was that the arbitrator not the court should determine these questions because the procedures are inextricably tied to the merits of the case. They are a subset of cases that are routinely decided.
6.
The acronyms AAA stands for American Arbitration Association and their role and relevance is that they are a main arbitration agency and their services peaked in the 1980s. The acronym NAA stands for National Academy of Arbitrators and their role and relevance is that they were formed by a small
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group of War Labor Board Alumni in 1947 with the help of the Department of Labor’s Conciliation Service. They worked with both of the other arbitration organizations to create the Code of Ethics and Procedural Standards for Labor-Management Arbitration in 1951. Finally, the acronym FMCS stands for Federal Mediation and Conciliation Service and their role and relevance is that they are also a main arbitration agency and their services peaked in the 1980s. Both the AAA and FMCS have lists of arbitrators that are requested by advocates representing the union and the employer where they choose
the party from utilizing the process agreed upon by the parties.