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A September 2009 Analysis by
A June 25, 2009 PowerPoint Presentation by
Although parties to a collective bargaining agreement with arbitration provisions typically are eager to avoid the expense and delay that is characteristic of the public court system, they still have an expectation that arbitration procedures will provide many of the due-process protections of the formal court system, a speaker recently said at a conference sponsored by the Labor and Employment Relations Association.
Ronald Hoh, an arbitrator and member of the National Academy of Arbitrators, said that participants in arbitration expect procedures to conform to a variety of standards drawn from the public judicial system, including fundamental due process, notice, equitable administration, consistency of judgment, concern for precedent, and equitable determinations.
"Compliance with these expectations of the parties has become an essential element of just cause and of arbitration, and it is generally accepted that the arbitrator must review the equity of the administration of a grievance procedure as well as propriety of the disciplinary decision," Hoh
said.
The meaning of the term "due process" is different in the public sector workplace than in the private sector, Hoh said. In the public sector, the actions of an employer are "state actions" with implications for employees' constitutionally protected property and liberty rights. Such rights may not be taken away by the state without "due process of law," a guarantee that remains in arbitration.
In the private sector, there is no state action involved, Hoh said, but even so, arbitrators use constitutional concepts of due process in analyzing the rights of employees and the responsibilities of employers.
Elements of Due Process
Arbitrators also may find that they have to evaluate the reasonableness of any such rules, by examining such issues as the relationship of the rules to the workplace, their acceptance by the parties, and the history and fairness of their administration, he said.
A second element of due process is notice of the charges against an employee, Hoh said. Notice is essential to an employee who may wish to file a grievance, and arbitrators usually consider it improper for employers to impose discipline without giving the reasons for the action and giving the employee the information necessary to decide whether to file a grievance. As a result, arbitrators in general do not permit employers at a hearing to present evidence not previously made available to the employee.
A third element of due process is the right of the worker to confront his or her accuser, Hoh said. Arbitrators in general will not allow an employer to introduce a written account of the worker's conduct if the author of the account is not present for crossexamination. Similarly, arbitrators tend to uphold some aspects of the rule against hearsay testimony that is usual in the public court system.
A fourth element of due process in arbitration cases revolves around the question of the burden or proof, Hoh said. The party taking action that challenges the status quo usually has the burden of proving its challenge: the union for the most part in contract interpretation cases, and the employer in discipline cases. The burden can shift during a disciplinary case if the employer offers incriminating testimony about the worker's conduct, which the union then must rebut through cross-examination and testimony. If the union fails to rebut the incriminating evidence, the employer will have satisfied its burden with respect to that testimony.
A related issue is the amount of evidence needed to prove the case, Hoh said. In criminal cases in the public judicial system, the state has the burden of proving its charges beyond a reasonable doubt. But in the criminal system, a defendant can be punished with a prison sentence or even loss of life, he noted. In the employment context, the worst punishment that can be meted out is loss of employment. As a result, most arbitrators use the standard of a "preponderance of the evidence," or of "clear and convincing evidence" where the conduct also may be criminal.
Arbitrators are "frequently troubled" when determining the appropriate burden and in determining whether the burden has been met, he said. "Probably the most crucial aspect of providing due process under the just-cause standard is deciding whether the employer has established sufficient proof for the arbitrator to endorse its action. In razor's edge cases, the burden of proof resolves the case."
Equitable Administration
The conference, "Arbitration: The Good, the Bad, & The Ugly," was held May 7 at Southern Illinois University in Edwardsville, Ill. A speaker at another session discussed the growing complexity and costliness of arbitration (13 COBB 66, 5/22/08).
[CLEAR source: BNA’s Collective Bargainng Bulletin, (6-5-08) p.72]
Working America, a community affiliate of the AFL-CIO. June 27 announced the launch of a free Web service where individuals can submit questions related to workplace rights. The Web site has been available to members of Working America since May 24.
Questions are answered by volunteer lawyers and firms specializing primarily in labor and employment law, according to the organization. Questions may be submitted relating to six main topics: pay and benefits; discrimination; health and safety; privacy rights; rights of immigrant workers; and employment status.
Questions and responses on the "Ask a Lawyer" site will be displayed on the site as "the question of the day" and those interested can select to receive the question and answer via e-mail on a daily basis. In addition to reading the question of the day, site users can browse through an archive of previous questions, according to Working America.
The organization said the service does not guarantee that all questions will be answered and will not give individuals specific legal advice. Answers are intended to provide general information. Members of Working America have access to a nationwide network of lawyers who will provide a free half-hour consultation on the phone or in person, a simple document review and explanation, and a follow-up letter or phone call, the group stated.
Further information is available at www.workingamerica.org/askalawyer. [CLEAR source: BNA's Labor Relations Reporter , 07-23-07, 182LRR78]
The number of resolved representation elections supervised by the National Labor Relations Board in 2006 decreased from the previous year, while the win rate increased for the 10th consecutive year, according to preliminary findings from NLRB data analyzed by BNA PLUS.
The number of representation elections held in 2006 decreased to 1,648 from 2,142 in 2005, continuing an annual decline in NLRB elections since 1996 when about 3,300 elections were conducted by the agency. The number of elections won by unions also decreased to 1,014 in 2006, from 1,315 in 2005.
However, the union win rate increased slightly to 61.5 percent of all representation elections in 2006, from 61.4 percent in 2005. Unions have won more than half of all elections in each of the past 10 years.
The number of eligible voters decreased from 126,008 in 2005 to 113,083 in 2006. Unions organized 61,673 workers through NLRB elections in 2006, down from 65,189 the previous year.
Unions prevailed in 125 of 368 resolved decertification elections in 2006, or 34 percent, compared with 114 of 338 decertification elections, or 33.7 percent, in 2005.
For a copy of the full report, call i BNA PLUS at 800-372-1033. [CLEAR source: BNA's Collective Bargaining Bulletin, 06-07-07, 12COBB68]
Legislation to prohibit mandatory arbitration of employment claims unless provided under the terms of a collective-bargaining agreement was introduced in the House and Senate July 12.
The Arbitration Fairness Act of 2007 (H.R. 3010/S. 1782) "makes pre-dispute, mandatory arbitration clauses in consumer, employment, and franchise agreements unenforceable," bill sponsor Sen. Russ Feingold (D-Wis.) said at a July 12 briefing.
"When this bill is enacted, Americans will once again have a choice-whether to go to arbitration or whether to go to court, and that's the way it should be," he stated.
Feingold noted that he has long supported alternative-dispute-resolution procedures, including arbitration, because litigation can be costly and complex.
However, Feingold added, such dispute-resolution procedures are only fair if they are entered into voluntarily by both parties. In the past few decades, Feingold said, the courts have become increasingly willing to enforce contractual provisions that require future disputes to go to binding arbitration even when one party basically had no choice but to accept the arbitration clause.
Mandatory Clauses Becoming More Commonplace.
In addition, mandatory arbitration clauses are becoming commonplace in employment and other contracts, Feingold stated. The result is that employees, farmers, and consumers are being forced to waive their right to take disputes to court and laws passed to protect them then become largely optional, he noted.
Arbitration panels are not required to follow these consumer protection laws and they do not have to explain their decisions, Fein-gold added.
Arbitration can be costly, lacks discovery proceedings or due-process protections, and there is no meaningful judicial review of arbitrators' decisions, according to a statement from Feingold's office.
Rep. Hank Johnson (D-Ga.) introduced companion legislation in the House. The bill would amend the Federal Arbitration Act and apply only to disputes or claims arising on or after the date of enactment.
Consumer groups and employment lawyers July 12 praised the measure, stating it would restore consumers' rights and bring fairness to dispute-resolution processes.
In a July 12 statement, the National Employment Lawyers Association described the existing pre-dispute mandatory arbitration clauses as a "tool for large companies to stack the deck in their favor in litigation with their employees or customers."
Such clauses require employees or consumers to agree in advance to arbitrate disputes that have not yet arisen.
[CLEAR source: BNA's Labor Relations Reporter, 07-23
In a stunning reversal of 20 years of its own jurisprudence, the Supreme Court of Canada has ruled (6-1) that the guarantee of freedom of association in section 2(d) of the Charter of Rights protects the right of Canadian workers to bargain collectively. Collective bargaining is a fundamental aspect of Canadian society, the Court declared, and recognition of that right reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.
As a result, the Court declared several provisions of B.C.'s Health
and Social Services Delivery Improvement Act to be unconstitutional, although it
suspended its declaration for a period of 12 months to allow the B.C.
government to address the repercussions of its decision. Enacted by the Liberal government
of Premier Gordon Campbell in 2002, the legislation purported to override
collective agreement protections for hospital workers in the areas of contracting out, and
layoff and bumping rights. Following passage of the legislation, thousands
of non-clinical support staff were laid off from B.C. hospitals, and paid
substantially less by service providers to perform the same services at the hospitals
from which they had been laid off.
In the Court's view, a number of provisions in the B.C. Act (sections
6(2), 6(4) and 9), which were challenged by trade unions, were in violation of
section 2(d) of the Charter, and were not permitted by section 1, which allows
reasonable limits on Charter rights. It was not shown that they minimally
impaired the employees' right to collective bargaining: there was no consideration by the
government of less intrusive measures, and the legislation was adopted rapidly
with full knowledge that the unions were strongly opposed to many of the
provisions, without consideration of alternative ways to achieve the government's
objective, and without explanation of the government's choices.
A full review of the Supreme Court's decision will be available on
our website
www.lancasterhouse.com on Monday, June 11.
Full text of the Supreme Court of Canada's decision in the Health
Services case:
http://scc.lexum.umontreal.ca/en/2007/2007scc27/2007scc27.html
Is Hawai‘i'sTax System Stable?
Making Things Worse
Economist Lawrence W. Boyd, Ph.D.
University of Hawai‘i - West O‘ahu
Center for Labor Education & Research
Hawai‘i's Furloughs, Layoffs, Shortfalls:
Making Things Worse
Economist Lawrence W. Boyd, Ph.D.
University of Hawai‘i - West O‘ahu
Center for Labor Education & Research
Hawai'i Union Density, 2001-2008
Union Members
Represented by Unions
Year
total K
percent
total K
percent
US ranking
2008
136
24.3%
143
25.5%
2nd of 50
2007
130
23.4%
135
24.2%
3rd of 50
2006
139
24.7%
146
25.9%
1st of 50
2005
141
25.8%
145
26.7%
2nd of 50
2004
126
23.7%
132
24.8%
2nd of 50
2003
122
23.8%
127
24.8%
2nd of 50
2002
120
24.4%
125
25.4%
2nd of 50
2001
123
23.9%
133
25.9%
2nd of 50
Due Process an Essential Element of Arbitration, Speaker Says
The first element of due process appropriate to the arbitration context is notice of prohibited conduct, Hoh said. Even before collective bargaining, employers found it useful to post notices in the workplace of expected conduct, and the concept of notice remains an "essential element of due process." The requirement may be met by actual notice-through posting notices or by giving employees information about prohibited conduct at the time of hiring-or through "constructive notice"-such as by issuing a rules handbook, which creates an implied obligation on employees to read the handbook.
In addition to these due process concerns, arbitrators are concerned with whether there has been administrative due process in handling the matter, he said. Among elements of administrative due process that arbitrators look for are consistency with prior treatment of like offenses; promptness in the administration of discipline, allowing the worker an opportunity to amend conduct or file a grievance; willingness to allow the union to respond to the charge; and the existence of a nexus between the employee's conduct and his or her job function and performance.
AFL-CIO Affiliate Launches Q & A Service on Job Rights
NLRB Elections Down, Union Win Rate Up in 2006
Bill to Ban Mandatory Arbitration of Claims Introduced in Congress
Major Court Victory for Unions in Canada
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