Jon Hyman at Ohio Employer’s Law Blog suggests that employers consider two ideas less drastic than mandatory arbitration - and less likely to trigger never-ending litigation: contractual waivers of jury trials, and of limitations periods. If successful, the parties would end up with a court trial, brought in a shortened time frame.
The U. S. Supreme Court this morning decided that parties relying on the Federal Arbitration Act for review of an arbitration award can’t force the court to apply a standard different (here, tougher) than that dictated by the FAA. The Court leaves open the possibility that parties could contract for different review standards under the common […]
Classified Employees Ass’n v. Matanuska-Susitna Bor. Sch. Dist., S-12606, argued Feb. 14, 2008
After custodial workers lost their jobs when the school district outsourced their work to a private contractor, CEA filed a grievance arguing the outsourcing was a contract violation. The District refused to arbitrate the grievance, claiming it has the unlimited right to privatize […]
Our Hero Judge Alex Has a Bad Day in Court (Two New U.S. Supreme Court Opinions)
On February 20, 2008, the United States Supreme Court issued two opinions of interest to employers and businesses. This summary briefly reviews the opinions and their respective significance.
Judge Alex Gets Reversed: Effect of Arbitration Provisions on State Administrative Actions
In Preston […]
Two recent § 1983 opinions address immunities in employment areas.
Licensing investigator: The 9th Circuit today held that an investigator for a state licensing board is not shielded from damages claims by absolute immunity. The panel also held that business goodwill is a constitutionally protected property right that has been clearly established.
Lantz v. Crate, 2008 WL _______ (9th Cir. Feb. 27, […]
Homer Elect. Ass’n & IBEW Local 1547: Arbitrator Robert Landau held that HEA violated the Working Rules in the Outside Agreement when it allowed a substation technician to test a voltage regulator outside the presence of a journeyman lineman. Landau relied on bargaining history.
124 LA 696 (Nov. 2, 2007)
In-house counsel Bill Wielechowski represented the Local. Donald […]
Yesterday the U. S. Supreme Court issued its opinion in Preston v. Ferrer, in which it held that questions about the validity of a contract with an arbitration clause belong before the arbitrator rather than a judge or administrative agency, despite state law to the contrary.
The Court also held that ERISA § 402(a)(2) permits a 401(k) participant […]
The Supreme Court this week agreed to resolve issues related to a) CBA-compelled arbitration of statutory discrimination claims; b) agency payor responsibility for union litigation expenses; and c) ERISA’s anti-alienation provision.
You can find blog commentary at Workplace Professor and Daily Developments in EEO Law (02/19/08 post).
It’s a good news, bad news story, without much good news for employees, especially unrepresented employees in front of repeat arbitrators:
From the abstract by researcher Alexander Colvin:
Whereas past research often concluded based on more limited datasets that outcomes from employment arbitration were generally similar to those from litigation, results of the present study, which is […]
May retirees rely on the presumption of arbitrability?
Retirees and their union filed grievances against their former employer and its pension plan, challenging the denial of pension benefits. The plan refused to arbitrate. On the retirees/union’s motion to compel, the District Court applied the presumption of arbitrability and entered summary judgment against the plan.
On appeal, the plan […]
Court again punts standard of review issue
The Alaska Supreme Court has affirmed arbitration awards made by William Dorsey and Janet Gaunt. Though granted about 1 1/2 yeas of back pay, the APEA-represented state employee was dissatisfied and pursued challenges to the awards and an independent action pro se.
Superior Court Judge Patricia Collins of Juneau consolidated the employee’s various cases, […]
Interviews of Alaska Supreme Court candidates: Gov. Palin interviews Supreme Court candidates in Juneau tomorrow and Friday. The deadline for the appointment to fill Justice Bryner’s seat falls right after Thanksgiving.
SH complaint procedure: Practical tips on drafting an effective sexual harassment complaint policy and procedure may be found at the Pennsylvania Employment Law Blog, and in this article at […]
Ethics Opinions, other Supreme Court Opinions
Review of Arbitration Award for Fraud and Partiality: In an Uninsured Motorist case reviewed under the state Arbitration Act, the Supreme Court (per C. J. Fabe) unanimously affirmed the trial court (Wolverton), and held a) the driver (pro se) had failed to show “affirmative wrongdoing” by State Farm and thus […]
Landau on out-of-class pay; Reeves on past practice and interpretive rules
Chugach Support Services, Inc. & Teamsters Local 959: Arbitrator Robert Landau held that Chugach breached the CBA by failing to pay higher Cook II wages to Cooks I temporarily assigned to do the primary duty of a Cook II (and one that was not included […]
Many collective bargaining agreements contain grievance procedures specifying that when a grievance proceeds to arbitration, the arbitrator will be selected from a panel obtained from either the American Arbitration Association or the Federal Mediation and Conciliation Service. Because there are significant differences in the services provided by these two organizations, a descriptive comparison may be useful […]
Alaska doesn’t require local bar admission for lawyers who represent parties in arbitration, so long as the attorney doesn’t represent that he or she is licensed by the Alaska Bar Association. See Bar Rule 63 (defining the unauthorized practice of law); AS 08.08.230 (making unauthorized practice of law a misdemeanor).
California, on the other hand, provides […]
The California Supreme Court has identified factors that would invalidate provisions in arbitration agreements that purport to waive class claims for unpaid overtime. Gentry v. Superior Court of Los Angeles County, S141502, ___ P.3d ___ (Cal. Aug. 30, 2007). The Court (4-3) held that various practical difficulties facing individual OT claimants may void any agreement to waive class action […]
In May-June of 2006, the Matanuska-Susitna School District laid off 82 of its non-teaching, permanent annual employees,relying on budgetary grounds. Arbitrator Robert Landau upheld the union’s grievance, holding that the layoff was not numerically limited, not keyed to budget cuts, contrary to past practice, etc.
Vince Speranza of Uniserv represented the union; Theresa Henneman of Holmes […]
The Second Circuit has now unambiguously held that
mandatory arbitration clauses in collective bargaining agreements are unenforceable to the extent they waive the rights of covered workers to a judicial forum for federal statutory causes of action.
Pyett v. Pennsylvania Building Company, ___ F.3d ___, 2007 WL 2189126 (2nd Cir. Aug. 1, 2007). The Court emphasized that Wright v. […]
The current volume of the BNA publication Labor Arbitration has published four awards in Alaska arbitration matters, three of them by Robert Landau. They are:
Anch. Mun. Light & Power & IBEW Local 1547 (04/16/07), 123 LA 1134 (Landau, R., Arb.): Holding: Employer did not violate CBA re shift change. Also: Discussion of elements of past […]
In last Friday’s opinion, Deptula v. Simpson, 2007 WL 2143018 (Alaska July 27, 2007), the Alaska Supreme Court offered some clues about how it will resolve the waiver issues raised, but left open in Hammond v. State, DOTPF, 107 P.3d 871 (Alaska 2005), and Barnica v. Kenai Penin. Bor. Sch. Dist., 46 P.3d 974 (Alaska 2002). Justice […]
On July 12, 2007, Senator Russ Feingold (D-WI) and Rep. Hank Johnson (D-GA) held a joint press conference in the Capitol to announce the introduction of the Arbitration Fairness Act (AFA) (S. 1782, H.R. 3010). The AFA is a comprehensive bill that would eliminate pre-dispute mandatory arbitration of claims brought by workers as well as […]
Yesterday the U S Supreme Court granted cert in Hall Street Associates LLC v. Mattel, Inc., an arbitration case, in which the 9th Circuit had held that the Federal Arbitration Act does not permit the courts to honor the parties’ agreement that courts should review an award under a standard more searching that the FAA. See, […]
The 4th Circuit has held that the part of ANCSA that exempts Alaska Native corporations from Title VII claims (43 USC 1626(g)) does not protect ANCSA corporations from Section 1981 claims. Aleman v. Chugach Support Services, Inc., No. 06-1461 (4th Cir. May 3, 2007). The Court thus permitted the plaintiffs to pursue Section 1981 claims […]
