ADR and the Threat To Arbitration

1. ADR and the Threat To Arbitration A tool for union management unity is hijacked into a tool to deprive workers of their statutory rights

2. ADR in Union-Management World • Mediation of Interest Disputes • Arbitration of Rights Disputes Steelworkers Trilogy • Law of the Shop controls; Court hands off • Expertise of the parties selected “judges” • Court won’t interfere if jurisdiction covers • Court won’t substitute judgement • Alexander v.Denver Protects Statutory Rts.

3. FAA enters the workplace • FAA ( designed for Merchant Disputes • An expert arbitrator for purchases/sales • No legislative history re any statutes • Sec 1:FAA doesn’t apply to “contracts of employment of seamen, railroad employees or other class of workers engaged in foreign or interstate commerce” • Sec 2:”Any maritime transactions or a contract evidencing a transaction involving commerce” • Mitsubishi:”by agreeing to arbitrate a statutory claim a party does not forgo the substantive rights afforded by the statute;it only submits to their resolution in an arbitral, rather than a judicial, forum” (1985)

4. Gilmer and its Progeny • Gilmer v. Interstate Johnson (1991) • Agreement to arbitrate knowing and voluntary • Employee agreement to arbitrate controls: no proof social policies of ADEA require judicial forum • Circuit City Stores v. Adams (2001) • Sec 1 exemption narrow: only transportation • Souter dissent: should follow updated broad interstate commerce definitions, not 1925 • Stevens dissent: Lincoln Mills based arbitration on Taft Hartley Sec 301which says nothing re arbitration when FAA does (but for merchants)

5. Variations on a Theme • Hooters of America v. Phillips (1999) • Unconscionable:employer selects arbitrator • Contract of adhesion, not fair • EEOC v. Waffle House (2002) • EEOC not a party to the arbitration • Can bring its own action to enforce its statute if employee has not gone to court or to arbitration • Cole v. Burns Intl Security (1997) Costs • Written agreement? (needn’t be signed) • Failure to Read or understand? • In Company handbook? • Consideration? • California Legislation on Reuser Tilt:Disclosure

6. Does Gilmer cover CBAs? • Austin v. Owens Brockway (4th Cir 1996) : • Court said CB Arbitration binds on statutory issues • Impact: Duty of Fair Representation pressures • Brisentine v. Stone Webster (11th Cir 1997): CBA not requiring arbitration of statutory disputes unless • Contract specifies statutes • Arbitrator given authority to bind parties on statutes • Employee has right to invoke the arbitration

7. Strengths Negotiated by equals joint selection joint payment retain right to court for statute violations union representation Weaknesses 12 % workforce Only negotiated subjects No court access No union funds or representation when go to court on laws Arbitrator sticks fo contract not the law Is Collective Bargaining Arbitration Enough?

8. Strengths Free Litigation expensive Quick, no appeals Easier access than to courts Due Process protections Keep it in the family Weaknesses Condition of job Pre aged or disabled Needn’t follow the law Can’t sue in court Repeat user tilt Discovery depositions Boss can change rules No union involvement Is Gilmer Arbitration Enough?

9. Impact of Employment ADR on Collective Bargaining • Provides protection to non union workers • Denies union role in negotiation of procedures or representation of workers • Sanctifies union avoidance procedures • May be viewed by employees as fair • May be the wave of the future

10. What Should Unions Do? • Where there is also collective bargaining try to represent workers • Offer representation if unorganized • Solicit Gilmer shops to find frequency of claims and use it for organizing • Publicize the most unfair procedures and results • Get employers to negotiate procedures into Collective Bargaining Agreements • Set up legal representation programs