LIR 865
ARBITRATION AND ALTERNATE DISPUTE RESOLUTION
Spring, 2009
Instructor: Richard N. Block
428 South Kedzie Hall
517-353-3896
Office Hrs: By appointment
Course Objectives
1. To provide students with an appreciation of the rationale for the widespread use of labor arbitration in the unionized sector as the accepted method of resolving disputes over the interpretation of existing collective bargaining agreements (i.e., rights arbitration).
2. To provide students with an understanding of the legal doctrines underlying labor arbitration.
3. To understand the standards labor arbitrators use to decide cases brought before them.
4. To provide students with the skills and ability to analyze a workplace dispute and determine the likely result if the case should go arbitration.
5. To provide students with an understanding of interest arbitration as a method determining the content of collective bargaining agreements.
6. To provide students with a basic understanding of arbitration advocacy.
7. To provide students with an understanding of employment arbitration as a method of resolving employment disputes.
8. To provide students an appreciation of methods of resolving labor and employment disputes outside the United States.
Course Requirements and Grade Weights
Two advocate presentations at 30 % each 50%
1 arbitration award written 30%
Term Paper/Final Written Assignment 10%
Class participation to be considered if the score based on the computed average is on the borderline between two final grades.
Required Texts
Dennis Nolan, Labor and Employment Arbitration in a Nutshell, St. Paul, Minnesota: Thomson/West Publishing Company, 2007 (hereinafter Nolan).
Elkouri and Elkouri: How Arbitration Works, 6th Ed., Alan Miles Ruben, Ed., Washington, DC: BNA, 2003 (hereinafter Elkouri).
Hoyt Wheeler, Brian S. Klaas, and Douglas M. Mahony, Workplace Justice Without Unions, Kalamazoo, Michigan: W.E. Upjohn Institute for Employment Research, 2004 (hereinafter cited as WKM).
NOTE: Elkouri is the standard reference book on labor arbitration that you will use throughout your career. It provides a summary of the common law of arbitration as well as cites to relevant arbitration cases. Because it has gone through six editions, the chapters in Elkouri, and therefore, the book itself, continues to expand. As a result, the assigned readings in Elkouri can be long, often totaling more than 100 pages per week. As you read it, read for the basic concepts and principles associated with each issue.
Arbitration Cases/Group Projects
Each student will be assigned to a group. Each group will be assigned three cases; (1) a class presentation for which the group will be a union advocate; (2) a class presentation for which the group will be a management advocate; and (3) a written arbitration opinion and award based on the presentations of two other groups. Thus, each group will address arbitration in the three ways that it is addressed in the real world; through the union perspective, through the management perspective, and through the arbitrator’s perspective.
Class Materials and Other Readings
The course overheads and other course materials are available on the instructor’s website. Other required readings and assignments will be distributed in class.
Electronic Sources on Arbitration
The Bureau of National Affairs (BNA) is the major private reporting service for arbitration awards. Instructions for accessing the online BNA services will be provided. BNA indexes cases by topic and annotates cases.
The MSU LIR Library maintains a file of all Michigan public sector interest (Act 312) arbitration awards and fact-finding awards. These can be accessed through the LIR website.
Print Sources for Arbitration Cases
The important print sources of arbitration cases are compiled by the BNA and Commerce Clearing House (CCH). A session in the Labor and Industrial Relations (LIR) Library in the Business in Law Building will be scheduled to familiarize students with these legal reporting services. An excellent handbook and source for case citations in labor law is Elkouri and Elkouri, above. Older cases are not available online through BNA and must be accessed through BNA print services available in the LIR Library.
Other Matters
It is recommended that you go to bna.com and read a few published arbitration awards to get “a sense” of how they are written.
There will be no deferred grades or incompletes given for the course. If you require accommodation for religious, disabilities, or other purposes, please make an appointment to discuss the matter with me.
Week 1/January 14 – Basic Principles of Arbitration: History, Theory, Rationale, Legal Status
Nolan, pp. 1-11, 106-17.
Dennis B. Nolan and Roger Abrams, “American Labor Arbitration: The Early Years,” University of Florida Law Review, Vol. 35, pp. 373-421, at http://www.heinonline.org.proxy1.cl.msu.edu/HOL/Page?handle=hein.journals/uflr35&id=1&size=2&collection=journals&index=journals/uflr (access through a computer on the MSU campus is recommended).
Dennis B. Nolan and Roger Abrams, “ American Labor Arbitration: The Maturing Years,” University of Florida Law Review, Vol. 35, Fall, 1983 pp. 537-632, athttp://www.heinonline.org.proxy1.cl.msu.edu/HOL/Page?handle=hein.journals/uflr35&id=1&size=2&collection=journals&index=journals/uflr (access through a computer on the MSU campus is recommended).
National Mediation Board, Website at www.nmb.gov, click on “Public Information,” “Mediation,” and “Arbitration.”
Week 2/January 21 – The Grievance Procedure; the Role of Appointing Agencies (guest speakers – Charlene Chase and/or Jan Holdinski, American Arbitration Association)
Elkouri and Elkouri, Chapters 5-6.
Charles B. Craver, “Labor Arbitration as a Continuation of the Collective Bargaining Process,” Symposium on Labor Arbitration Thirty Years after the Steelworkers Trilogy, Chicago-Kent Law Review, Vol. 66, 1990, pp. 571-630 at http://www.heinonline.org.proxy1.cl.msu.edu/HOL/Page?handle=hein.journals/chknt66&id=1&size=2&collection=journals&index=journals/chknt (access through a computer on the MSU campus is recommended).
Week 3/January 28 – Arbitration Procedures: Arbitrator Selection, and the Role Of The Attorney In The Arbitration Process, The Arbitration Tribunal, Arbitrability, Scope of Arbitrator’s Authority
Arbitrator selection and the role of the attorney in the arbitration process (guest speaker: James Chiodini, Attorney, White, Schneider Young & Chiodini, Okemos, Michigan)
Nolan, pp. 11-97, 129-44, 223-58, 279-90.
Richard N. Block and Jack Stieber, “The Impact of Attorneys and Arbitrators on Arbitration Awards,” Industrial and Labor Relations Review, Vol. 40, No. 4, July, 1987, pp. 543-55, at http://www.jstor.org.proxy2.cl.msu.edu/stable/2524057 (access through a computer on the MSU campus is recommended).
Week 4/February 4 – Evidence, Proof, and Argument in Labor Arbitration
Nolan, pp. pp. 35-54.
Elkouri, pp. 403-69.
Week 5/ February 11 – Issues in Labor Arbitration: Discipline and Discharge
Nolan, 300-09.
Elkouri, pp. 884-944
Brian Bemmels, “The Effect of Grievants' Gender on Arbitration Decisions,” Industrial and Labor Relations Review, Vol. 41, No. 2 (Jan. 1988), pp. 251-262, at http://www.jstor.org.proxy2.cl.msu.edu/stable/2523635?seq=8 (access through a computer on the MSU campus is recommended).
Week 6/February 18 – Issues in Labor Arbitration: Standards for Interpreting Contract Language; Past Practice
Nolan, pp. 269-78, 290-99.
Elkouri, pp. 470-515
Week 7/February 25 - Issues in Arbitration: Management Rights ; Case 1 Presentation
Nolan, pp. 321-23
Elkouri, pp. 655-61,677-87, 696-784, 792-800
Week 8/February March 4 – Issues in Arbitration: Seniority; Case 2 Presentation
Nolan, pp. 311-13
Elkouri, pp. 807-83
Week 9/March18 – Issues in Arbitration: Employee Rights and Fringe Benefits
Elkouri, 997-1100
Week 10/March 25 – Issues in Labor Arbitration: Safety and Health and Substance Testing Issues; Case 3 Presentation
Elkouri, pp. 969-95
Del Monte Foods, 121 LA 835, 2005 (access though bna.com)
Hertz Corp., 124 LA 1286, 2007 (access though bna.com)
American Standard, 124 LA 1537, 2008 (access though bna.com)
Kohler Printing,125 LA 137, 2008 (access though bna.com)
Week 11/April 1 – Relationship Between NLRA and Labor Arbitration; Case 4 Presentation
Nolan, pp. 152-60.
Elkouri, pp. 551-58.
Week 12/April 8 – Interest Arbitration
Guest Speaker to be announced
Nolan, pp. 61-82.
Elkouri, pp. 1101-45.
Week 13/April 15 - Dispute Resolution Systems in the Nonunion Firm; Employment Arbitration; Case 5 Presentation
WKM, pp. 1-45
Week 14/April 22 - Employment Arbitration; Case 6 Presentation
WKM, pp. 47-68; 81-160
Lisa B. Bingham, Debra J. Mesch, “Decision Making in Employment and Labor Arbitration” Industrial Relations, Vol. 39, No. 4, October, 2000, pp 671-694, at http://www3.interscience.wiley.com/journal/119034872/issue (access through a computer on the MSU campus is recommended).
Week 15/April 29 - Workplace Dispute Resolution Outside the U.S
Lecture
WKM, pp. 69-80.
/865 Syllabus Draft 2
INSTRUCTIONS FOR WRITING ARBITRATION OPINION AND AWARD
There is no official format for writing an opinion and award. A perusal of awards in the BNA Labor Arbitration Reports will demonstrate there are multiple structures. The structure I find most useful is as follows:
I. Issue
II. Relevant Provisions of the Collective Bargaining Agreement
III. Facts and Background
IV. Positions of the Parties
A. Position of the Union (non-discharge case) or Management (discharge case)
B. Position of Management Union (non-discharge case) or Union (discharge case)
V. Conclusion
VI. Award
XXX