Alaska Employment Law

Where does one find published arbitration awards? How do arbitration awards get published? Under what circumstances can arbitration awards be kept confidential? These questions and related issues are examined here in the context of labor and employment arbitration.

For labor arbitration awards, there are several primary sources. The two leading reporters of labor awards are Bureau of National Affairs (BNA) Labor Arbitration Reports and Commerce Clearing House (CCH) Labor Arbitration Awards. Both are available in paper form at the state law library or electronically by subscription online. The BNA and CCH reporters publish several hundred full-text awards each year selected from the thousands of awards submitted by arbitrators. According to BNA’s publication criteria, the basic consideration for publishing an award is the degree to which the award has significance and application to persons other than the parties to the case. BNA publishes awards which, in its judgment, (1) address issues of general interest, and (2) where the arbitrator’s reasoning is set forth in a manner that can be clearly understood by persons other than the parties. CCH follows similar criteria.

Another primary source of labor awards is LRP Publications’ Labor Arbitration Information System (LAIS). This reporter, available by subscription, indexes and summarizes about 2,500 awards each year and also publishes selected full-text awards.

Most labor arbitration awards are not published, either because the arbitrator does not submit the award for publication or because one or both parties do not consent to publication. Arbitrators generally fall into one of three groups: those who routinely submit their awards for publication; those who never submit their awards for publication; and those who occasionally submit selected awards for publication. Under Rule 2.C.1 of the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes (www.naarb.org/code.html), all significant aspects of an arbitration proceeding must be treated by the arbitrator as confidential unless this requirement is waived by the parties or disclosure is required or permitted by law. The Code further states that it is a violation for an arbitrator to make public an award without the consent of the parties. Such consent may be express or implied. Arbitrators seeking to publish an award typically notify the parties that they may object to publication within 30 days of the issuance of the award and, if no objection is received from either party, this is considered an implied consent to publish. Thus, either party in a labor arbitration has veto power over publication of the award.

In full-service labor arbitration cases administered by the American Arbitration Association, the AAA routinely requests implied consent from the parties to publish the award. If such consent is obtained, the AAA may publish a summary of the award in one of its three subscription newsletter services – Summary of Labor Arbitration Awards, Labor Arbitration in Government, and Arbitration in the Schools – and will also make available the full-text award on a pay-per-page basis.

Published labor awards are normally edited by the publisher to maintain the confidentiality of the grievant’s name and, if necessary, the names of other witnesses, e.g.,witnesses in a sexual harassment case. Parties who desire greater confidentiality may condition their consent to publication on the redaction of additional sensitive, privileged or personally-identifying information, e.g., trade secrets, settlement negotiations or tax information.

A related issue is the confidentiality of public sector arbitration awards under public records laws or the Freedom of Information Act. Many public records laws, while generally requiring the disclosure of information and records in the possession of a government agency, specifically exempt or otherwise protect the confidentiality of personnel records pertaining to public employees. In Alaska, AS 39.25.080 provides that state personnel records are confidential except for an employee’s name, job title, dates of service and rate of compensation. The State of Alaska allows the publication of arbitration awards involving state employees so long as employee names and personally-identifying information are redacted.

In the realm of non-collective-bargaining employment arbitrations, there are relatively few published or reported arbitration awards. In employment cases administered by the American Arbitration Association, AAA Employment Rule 39 states that an award shall be publicly available, except that the names of the parties and witnesses will not be made public unless a party expressly agrees. The AAA maintains a small database of employment arbitration decisions available on a cost basis.

The publication of labor and employment arbitration awards serves a useful purpose analogous to the publication of judicial opinions. Published awards provide guidance to the labor-management community concerning issues of general interest, and also give insight into a particular arbitrator’s analytical approach to the arbitrated issues. While there are legitimate confidentiality concerns pertaining to the names of grievants, witnesses and other sensitive information, in most cases these concerns can be satisfactorily addressed by appropriate editing or redaction of the arbitration award.

*          *          * 

 Robert W. Landau has been a full-time labor and employment arbitrator and mediator since 1991. His practice is based in Anchorage and he handles cases throughout Alaska and the western United States. Previously he served as Deputy Commissioner of Labor and Assistant Attorney General for the State of Alaska. Mr. Landau is a member of the National Academy of Arbitrators and the arbitration panels of the American Arbitration Association and the Federal Mediation and Conciliation Service.  He is a graduate of Amherst College (1974) and the University of Virginia School of Law (1978). E-mail: rlandau at gci.net.