Arbitration Awards in an Environment of Compulsory Unionization: Is the High Degree of Deference Warranted?

By Hardman, Nephi | Brigham Young University Law Review, July 1, 2009 | Go to article overview

Arbitration Awards in an Environment of Compulsory Unionization: Is the High Degree of Deference Warranted?


Hardman, Nephi, Brigham Young University Law Review


I. INTRODUCTION

Advocates of compulsory unionization have long maintained that conditioning continued employment upon union membership is not discriminatory so long as anyone may join the union; a closed shop is justified so long as there is an open union.1 The idea, stripped down to its essentials, is that unions must play fair, whatever obligation there is at the outset for unions to practice non- discriminatory admission practices,2 that obligation grows when unions hold the keys to the workshop.3

Since unions often hold the keys to the courtroom as well,4 they must play fairly when pressing employee grievances. For example, it is well-settled that a union that fails to press black union members' allegations of discrimination runs afoul of both Title VII and § 198 1;5 once the union is exclusively entrusted with filing claims for its members, it must exercise that power fairly.6 Under compulsory unionism, however, the union holds the courthouse keys for both the willingly and unwillingly unionized.7

The judiciary, while occasionally distinguishing between the levels of deference given to union-controlled and individualcontrolled grievance procedures,8 has never used similar rationale to distinguish between the subsets of union-controlled grievance procedures - namely, closed9 and open shops.

The distinction drawn in Alexander v. Gardner-Denver Co.10 between individual- and union- entered arbitration agreements provides a workable rationale that could be extended to warrant different treatment of closed- and open-shop arbitration awards. A union's previous arbitration of an employee's racial discrimination claim did not stop the employee from subsequently litigating on his own behalf, because, inter alia, "[i]n arbitration, as in the collectivebargaining process, the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit," and "harmony of interest between the union and the individual employee cannot always be presumed, especially where a claim of racial discrimination is made."11 The same rationale should be applied in the context of arbitration awards - in particular, that in at least some cases of individual arbitration awards agreed upon through unionized arbitration, "the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit," and, further, that "harmony of interest between the union and the individual employee cannot always be presumed."12

Thus, because of the increased likelihood of divergent interests between the individual worker and the union in a closed-shop setting, arbitration awards rendered in a closed shop ought to be viewed with a higher level of scrutiny than they currently receive.13 Specifically, courts ought to view closed-shop labor arbitration awards with a "manifest disregard of the law" standard of review that involves actually verifying that an arbitrator has correctly applied the law.

In making that argument, this Comment traces the evolutionary split in case law governing union- based arbitration agreements and union- based arbitration awards. Under current law, a union may only agree to mandatory arbitration on behalf of its members when the waiver of the right to litigate in the collective bargaining agreement ("CBA") is clear and unmistakable. In notable contrast, once a labor arbitrator has rendered an award, a judge views the completed award with substantial deference that involves an extreme unwillingness to overturn labor arbitrators' decisions. By claiming that closed- shop labor arbitration decisions ought to be viewed under a strict "manifest disregard of the law" standard of review, this Comment argues that at least a subset of arbitration decisions should follow the path of arbitration agreements.14

Part II of this Comment explores the divergence between the judiciary's unwillingness to enforce labor arbitration agreements and its willingness to enforce completed labor arbitration awards. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Arbitration Awards in an Environment of Compulsory Unionization: Is the High Degree of Deference Warranted?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.