Teacher-School Board Grievance Arbitration Awards in the Courts: Facts and Figures

By Zirkel, Perry A. | Dispute Resolution Journal, February 1, 2016 | Go to article overview

Teacher-School Board Grievance Arbitration Awards in the Courts: Facts and Figures


Zirkel, Perry A., Dispute Resolution Journal


Collective bargaining is authorized for public school teachers in approximately 35 states, with the remaining state laws either silent or prohibitive.1 The majority of these 35 states include grievance procedures as a mandatory subject of bargaining.2 Yet, despite its importance as the culminating, binding, and third-party step in the grievance process, teacher-board arbitration has received only limited empirical attention.3

A particular gap concerns judicial review of the resulting arbitration awards. For example, what is the frequency and location of court decisions that review teacher-board arbitration awards? Do these judicial rulings support the general view that courts almost always uphold arbitrators under doctrines of deference and finality? And do the judicial outcomes differ for the arbitral rulings concerning arbitrability from those concerning the vacatur of the award?

The purpose of this article is to address these questions via an empirical analysis of the pertinent case law. The frame of reference for the analysis consists of the legal backdrop for labor arbitration and the empirical backdrop of prior research, each largely in the successively surrounding sectors for teacher-board arbitration

I. LEGAL BACKDROP

The applicable posture and standards for judicial review of teacherboard grievance arbitration awards is the result of three successive legal frameworks. The first two, as explained in more detail elsewhere,4 are the Federal Arbitration Act (FAA) of 1925 and the Steelworkers Trilogy of Supreme Court decisions in 1960.5 The third and culminating framework consists of the state laws and court decisions specific to judicial review in the teacher-board context of grievance arbitration.

A. Federal Arbitration Act

Originally intended primarily for the commercial and maritime contexts,6 the FAA established the framework for a broad-based judicial receptivity to grievance arbitration.7 In addition to establishing the enforceability of written agreements for arbitration,8 the Act authorizes judicial vacatur9 for limited reasons largely concerning the arbitral process.10 The only one specific to the product-the "award," or written arbitration decision-focuses on the alternatives of exceeding or imperfectly executing arbitral authority.11 Moreover, the express exclusion for "the merits,"12 along with the Act's legislative history,13 reflect an intent for restrictive judicial review.14

B. Steelworkers Trilogy

Targeting the collective bargaining context generally referred to as labor rather than commercial arbitration and doing so primarily as a matter of common rather than statutory law,15 the Supreme Court issued three companion decisions 35 years after the passage of the FAA that similarly provided for deferential judicial review. In the Trilogy, the Court specifically addressed the separable, but overlapping, issues of arbitrability and vacatur. Providing a broad presumption in favor of substantive arbitrability,16 the Court prescribed a "positive assurance" standard in United Steelworkers v. Warrior & Gulf Navigation Company.17 Conversely providing a restrictive posture for vacatur, the Court established, in United Steelworkers v. Enterprise Wheel & Car Corporation, an "essence" test18 that is unmistakably deferential.19 The remaining decision in the Trilogy, while focused on the threshold arbitrability issue, served as an over-arching reminder of judicial deference to what the parties had collectively bargained.20

C. Teacher-Board Context

Inasmuch as teacher-board grievance arbitration is a matter of public employees collectively bargaining under state law rather than private employees under individual or collective contracts under federal law, the foregoing two frameworks serve only indirectly for the specifically applicable judicial standards for arbitrability and vacatur. The intervening development was the Uniform Arbitration Act (UAA), generally resulting-with very limited differences-in state statutory standards for vacatur that were substantially the same as those under the FAA. …

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