The Creeping Legalism Labor Arbitration
Friday, October 9, 2009


Keynote Speaker

Disputatio: "Creeping Legalism" as a Declension Myth
Dennis R. Nolan, Webster Distinguished Professor Emeritus of Labor Law, University of South Carolina School of Law

Declension myths - or in simpler language, stories of decline and fall - are a common way to describe an individual's or an institution's development. Those myths share certain features: the belief that there once was a time of perfection and harmony, when the lion lay with the lamb and all was right under the heavens; the identification of something, usually human sins or errors, that destroyed perfection; and the optimistic hope that we can, by purifying ourselves of our sins, recreate the golden age. The story of Adam and Eve is the archetype, but the charge of "creeping legalism" in labor arbitration fits the pattern perfectly.

In this paper I suggest that the story of arbitration's fall from grace because of increasing "legalism" is wrong in all three elements. There never was a time of arbitration perfection. The changes in labor arbitration came about because the parties' needs and desires for their dispute resolution processes shifted as their bargaining relationships matured, not because of practitioners' mistakes. There is no way we could return to the innocent days of completely informal arbitration, nor should anyone conversant with labor dispute resolution even want to do so.

Nevertheless, there are ways in which arbitration could be made simpler, faster, and cheaper. Indeed, many parties already use those methods for certain cases. The difficulty is that simplicity comes at a price that parties are only rarely willing to pay.

Panel - Further Thoughts on "Creeping Legalism"

The Legalization of Labor Arbitration Procedure
Laura Cooper, J. Stewart and Mario Thomas McClendon Professor in Law and Alternative Dispute Resolution, University of Minnesota Law School

Commentators have expressed concern and sometimes alarm about the unfairness of employer-promulgated arbitration systems imposed on non-union workers. They have often compared such unfairness to grievance arbitration procedures under collective bargaining agreements that both participants and observers generally perceive as fair. Some have attributed the greater fairness of union-management arbitration to the negotiation of provisions in collective bargaining agreements defining arbitration procedures. Examination of the history of labor arbitration, however, reveals a process of procedural development in which the agreements themselves played no discernable role. How then did disparate informal procedures in individual workplaces evolve into the largely uniform legalized procedures of today? This presentation will reveal the disparate forces that molded labor arbitration procedure and advanced its legalization.

Mediation in Employment and Creeping Legalism: Implications for Dispute System Design
Lisa Blomgren Bingham, Keller-Runden Professor of Public Service, School of Public and Environmental Affairs, Indiana University, Bloomington

Dispute resolution exists in the shadow of the civil justice system. There are a number of basic elements of dispute system design in employment, including the nature of participants, intervention or outcome function, and de facto and de jure decision rules of the system. Design choices affect system performance and define the nature of justice a system delivers. This paper will examine creeping legalism in mediation by comparing three DSD contexts: 1) grievance mediation embedded in the collective bargaining agreement, 2) evaluative mediation of employment disputes in court-connected and administrative agency setting, and 3) mediation of employment disputes using transformative mediation in the United States Postal Service REDRESS program.

An Holistic Strategy for Coming to Grips with the Creeping Legalism of Labor Arbitration
Stephen L. Hayford, Professor of Business Law, Kelley School of Business, Indiana University, Bloomington

Effective administration of the collective bargaining agreement is the heart and soul of the relationship between American employers and unions. That process works best when the parties resolve the controversies that arise during the life of the collective bargaining agreement with a minimum of formality and with as little involvement of outsiders as possible. Recently much concern has been expressed regarding what is perceived as a trend toward unnecessarily burdening the labor arbitration forum with the manifold legal machinations more typical of traditional civil litigation. This article proposes a straightforward solution to this troubling recent direction of the labor arbitration process that attacks the phenomenon at its origin.

Lawyers and their legalistic ways are most often assigned the primary responsibility for encumbering and thereby weakening the labor arbitration mechanism by failing recognize and take advantage of the many advantages offered by a forum that is administered and brought to closure by a mutually-selected, highly experienced subject matter expert. This article asserts that however blameworthy some members of the labor relations bar may be in this regard, their presence and the arguably deleterious effect they can have on the process is a mere symptom of a more fundamental shortcoming of the contract administration process in many bargaining relationships. This piece asserts that the increasingly cumbersome and confrontational nature of the labor arbitration process can be successfully remedied only if employers and unions take responsibility for making the contractual grievance procedure an optimally effective problem solving device intended to strengthen and cement the bargaining relationship between them. It urges that arguments about the material facts and harangues concerning whose interpretation of the collective bargaining agreement is correct advanced by advocates endeavoring to gain tactical advantage by reverting to familiar legal artifices should be the very last resort in the contract administration process. Professor Hayford will offer a realistic strategy for pushing the grievance resolution process down and away from the arbitral forum to where it should reside - the pre-arbitral steps of the contractual grievance procedure. The approach he will advocate also minimizes the likelihood that parties who eventually advance unresolved grievances to arbitration will feel compelled to interject outside counsel and the tactical legal machinations they often bring to the arbitral forum into the contract administration process.

Panel - Recent Developments on "Creeping Legalism": 14 Penn Plaza v. Pyett Considered

Irreconcilable Deferences? The Troubled Marriage of Judicial Review Standards under the Steelworkers Trilogy and Federal Arbitration Act
Peter Feuille, Professor, School of Labor and Employment Relations, University of Illinois at Urbana-Champaign and Michael LeRoy, Professor, School of Labor and Employment Relations and College of Law, University of Illinois at Urbana-Champaign

The Supreme Court's decisions in 14 Penn Plaza LLC v. Pyett and Ricci v. DeStefano raise new questions about judicial deference to arbitration awards. These landmark cases set the stage for our research question: Are courts equally deferential to arbitration awards under the FAA and the Steelworkers Trilogy? To explore our research question, we pose two promotional disputes similar to the Ricci case. In Dispute No. 1, union members would be required under Pyett to submit a discrimination claim to a labor arbitrator. Dispute No. 2 would differ by arising in a non-union workplace. Thus, the arbitration would proceed under the FAA, rather than the LMRA and its judicial counterpart, the Steelworkers Trilogy. We further suppose that the labor arbitrator and employment arbitrator would decide the discrimination like the district court judge in Ricci's promotional case. Both arbitrators would deny the grievances, and the losers would sue to vacate the awards. Using our large databases on labor and employment arbitration awards, we estimate the probability that these arbitration losers would persuade courts to vacate awards under the Trilogy and also under the FAA. Our data suggest that the odds of vacating these awards would differ under these seemingly similar award review regimes. We explore the implications of this result in light of the new landmark rulings in Ricci and Penn Plaza.

Fallout from Pyett: Fractured Arbitration Systems in the Unionized Workplace
Ann C. Hodges, Professor of Law, School of Law, University of Richmond.

The Supreme Court's decision in 14 Penn Plaza v. Pyett will require employers and unions to decide whether to negotiate provisions that bind employees to arbitrate statutory claims. The decisions made by employers and unions will implicate the arbitration process and affect legalism in arbitration. It is probable that unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements may contain such provisions. If arbitration of statutory claims is incorporated in the collectively bargained grievance and arbitration procedure, that procedure will become more legalistic, perhaps even in cases where no legal claim is involved. If a separate arbitration procedure for statutory claims is negotiated, the new procedure may become the vehicle for legal claims, returning the contractual procedure to its traditional and favored role as an extension of the negotiation process. There are many legal and practical hurdles to creating an effective separate procedure for statutory claims in the unionized workplace, however, leading to substantial uncertainty about the future of arbitration in the unionized workplace.

The Evolving Schizophrenic Nature of Labor Arbitration
Martin H. Malin, Professor of Law and Director of the Institute for Law and the Workplace, Chicago-Kent College of Law

Arbitration under a collective bargaining agreement traditionally has been considered to be of a different nature from commercial arbitration. Whereas the latter was viewed as a substitute for litigation, the former was viewed as a substitute for workplace strife and an indispensable vehicle of self-governance of a privately ordered workplace. The Supreme Court in the Steelworkers Trilogy based its holding on this distinction which lies at the core of the broad level of deference courts pay to labor arbitration. In its recent decision in 14 Penn Plaza LLC v. Pyett, the Court makes no reference to the role of labor arbitration in the governance of a privately ordered workplace. Rather, the Court appears to regard arbitration under a collective bargaining agreement as no different from commercial arbitration, i.e., as a substitute for litigation. Yet, labor arbitration continues top fulfill its important role as a vehicle of workplace self-governance and a substitute for workplace strife. My paper will explore what appears to be the developing schizoid nature of the grievance arbitration process, on the one hand continuing to serve as a tool of private self-governance and on the other hand taking on the role of substitute for litigation, and the implications of this schizophrenia for the future of the institution.