The Creeping Legalism Labor Arbitration
Center for the Study of Dispute Resolution Symposium
October 9, 2009
As a method of dispute resolution, labor arbitration falls somewhere in between non-binding forms of dispute resolution and more formal dispute resolution processes. This “in-between” status has made it difficult at times for the participants in labor arbitration to decide what role the law and legally related constructs should play in labor arbitration.
For many years, practitioners and scholars intensively debated the extent to which labor arbitration was becoming too legalistic. While little attention was paid to this issue in the 1990s, recent developments have made the “creeping legalism” issue particularly relevant. First, the increased regulation of the employment relationship has placed labor arbitrators in a position to interpret issues of external law when deciding collective bargaining disputes. Second, the proliferation in the use of individual employee rights arbitration, which by nature is more legalistic, might have affected the practice of labor arbitration. To the extent that some of the same players participate in both, labor and employee rights arbitration, one would expect the legalistic character of individual employee rights arbitration to spillover to labor arbitration, and perhaps other forms of alternative dispute resolution. The recent United States Supreme Court’s decision in 14 Penn Plaza LLC v. Pyett, which holds that a bargaining contract provision requiring employees to arbitrate age discrimination claims is enforceable and thus precludes later litigation of such claims, accentuates the importance of this issue.
This symposium seeks to reignite the discussion on the legalization of labor arbitration. The presenters will explore the history of “creeping legalism” and evaluate its effect on the practice of labor arbitration. The presenters will also assess the effect of the legalization of labor arbitration in other forms of dispute resolution, as well as identify future trends.