This text is suitable for use in law schools, business schools, and schools of industrial relations. It addresses ADR topics through a wide diversity of materials, including judicial decisions, arbitration awards, essays, and questions and problems for class discussion. Sections on judicial determinations of arbitrability, judicial review, injunctions, deferral, and the duty of fair representation offer thorough coverage of legal issues. Extensive treatment of the substance and practice of labor arbitration provides material for courses focusing on labor arbitration practice. Materials on dispute resolution in the nonunion setting address a broad range of issues including law, theory, practice, and policy.


Imprint: West Academic Publishing
Series: American Casebook Series
Publication Date: 02/06/2014

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The third edition of ADR in the Workplace is a substantial revision and update of the prior edition. It includes recent court and arbitration decisions, new scholarly analysis, and updated notes and questions. Following is a summary of the organization of the book, highlighting some of these changes.

Part 1 covers the topic of labor arbitration. The first two chapters introduce the subject by describing the historical development of labor arbitration and the mechanics of the grievance resolution process. Chapter II has been updated to include new statistical information descriptive of the labor arbitration process and more recent bibliographical materials. In addition, the third edition contains significant new materials comparing grievance arbitration in the United States to dispute resolution procedures in other countries.

Chapter III examines the development of the federal common law governing labor arbitration, with a particular focus on the role of the courts in determining arbitral jurisdiction, the scope of judicial review, and injunctive relief. This chapter includes a new extensive note on the relationship between the labor arbitration cases that use Section 301 of the Labor Management Relations Act as the source of law and the case law that has developed under the Federal Arbitration Act. Chapter III also includes new textual material addressing two 2010 Supreme Court cases as well as new hypotheticals drawn from recent court decisions.

Chapter IV covers two crucial forum issues concerning the interplay between arbitration and the National Labor Relations Board (deferral) and between arbitration and the courts in the construction of collective bargaining agreements (Section 301 preemption). New material in this chapter discusses the Acting General Counsel’s proposal for a new deferral standard in Section 8(a)(1) and (3) cases.

Chapter V examines the impact of law on the arbitration process, focusing on the union’s duty of fair representation and the role of external law such as that provided by employment discrimination statutes. The third edition includes a discussion of how a 2009 Supreme Court decision impacts the external law issue.

The next two chapters focus on the heart of labor arbitration. Chapter VI covers issues of evidence and procedure in the arbitration process. The third edition includes a new excerpt on evidentiary standards from the 2012 edition of Elkouri & Elkouri, How Arbitration Works. The chapter also includes notes on recent decisions recognizing an evidentiary privilege for communications between employees and union representatives and on the role of precedent in arbitration.

Chapter VII examines substantively the subjects most often addressed in labor arbitration decisions. The third edition significantly revised the material on discipline and discharge with one-half of the reprinted decisions being new and presenting enhanced empirical information on arbitral decision making. The new cases reflect the increased diversity of arbitration practice, including female arbitrators and grievants and the increased unionization of employees in the service sector. This chapter also adds a textual note on seniority list mergers that includes a discussion of a recent airline seniority list integration decision.

Part 1 concludes by looking at the unique context of arbitration in the public sector (Chapter VIII) and considering the efficacy of the labor arbitration process from a normative perspective (Chapter IX). Chapter VIII is almost completely rewritten with new decisions on arbitrability, judicial review, and interest arbitration. This chapter also contains material examining the recent upheaval in public sector labor relations and how the statutory amendments adopted in several states impact dispute resolution processes. In addition, the third addition contains an updated and expanded section on arbitration in the federal sector, including two new decisions.

Chapter IX covers two broad topics: (1) arbitral ethics, including pre-hearing, hearing, and post-hearing conduct, with a focus on the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes; and (2) criticism of labor arbitration, particularly of its efficiency, its honesty, and its ideology.

Part 2 of the casebook covers arbitration in the nonunion, individual employment setting. Chapter X introduces the topic and chronicles the greater judicial acceptance of employment arbitration agreements under the Federal Arbitration Act that has emerged over the past thirty years. The third edition updates that story by including the Supreme Court’s 2009 decision in 14 Penn Plaza v. Pyett.

Chapter XI examines the contours of judicial enforcement of employment arbitration agreements with reference to such issues as contract formation, discovery, and judicial review. The third edition updates and restructures this material to reflect the continuing evolution of this dynamic area of law. The new chapter includes a more recent case on the contract formation issue and a new section on unconscionability. New notes have been added on electronic discovery as well as on two recent Supreme Court decisions, Rent-A-Center West v. Jackson and AT&T Mobility v. Concepcion. The section on judicial review also has been expanded to add the Supreme Court’s decision in Hall Street Associates v. Mattel and to reflect the divergent approaches taken by the lower federal courts.

Chapter XII looks at employment arbitration in practice. The third edition expands this chapter significantly to reflect the increased prevalence of individual employment arbitration cases. Five new decisions have been added to illustrate such typical issues as the use of evidence, dismissal as a sanction for discovery abuse, the propriety of granting summary judgment, the resolution of discrimination claims, and the calculation of damages. The section on normative and empirical studies of employment arbitration has been completely rewritten to reflect recent studies.

Part 3 of the casebook covers mediation and other forms of alternative dispute resolution mechanisms. Chapter XIII examines the mediation of workplace disputes by looking at such issues as the mediator’s role, the mediation process, the law affecting mediation, and mediation ethics. The third edition adds scholarly commentary to this chapter describing the concomitant decline in civil trials and the increasing use of mediation as well as the use of mediation to resolve grievances arising under collective bargaining agreements. Chapter XIV explores other ADR methods such as open door policies, peer review systems, early neutral evaluation, and multistep approaches. Notes and questions have been updated for both chapters.

Learn more about this series.