Statement of Theodore J. St. Antoine Before the Commission on the Future of Worker-Management Relations

Testimony_St_Antoine_040694.pdf: 205 downloads, before Oct. 1, 2020

Gilmer in the Collective Bargaining Context

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Gilmer in the Collective Bargaining Context

Published in cooperation with the American Bar Association Section of Dispute Resolutio

The Wagner Act: Labor Law\u27s Signal Event

There\u27s no fun in stating the obvious. Sophisticated professionals bestow few kudos on those who declaim the conventional wisdom. Even so, one would have to be far more perverse than I, in this fiftieth anniversary year of the National Labor Relations Act, to suggest that the Wagner Act, wasn\u27t the most important (and at the time of it- passage the most controversial) development in the last half-century of labor law

Contract Reading\u27 in Labor Arbitration

A quarter century ago, I used the phrase contract reader to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the contract reader, it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator\u27s award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: What the arbitrator says this contract means is exactly what we meant it to say. That is what we intended by agreeing the award would be \u27final and binding.\u27 In this sense an erroneous interpretation of the contract by the arbitrator is a contradiction in terms. This paper updates this thesis, emphasizing what may be the hottest issue in judicial review: When may a court set aside an arbitral award on the ground that it violates public policy? It also addresses the contract interpretation aspect of the contract reader - namely, How should an arbitrator go about reading or interpreting a contract

Bakke: A Compelling Need to Discriminate

Two of America\u27s most cherished values collided head-on a few months ago, when the U.S. Supreme Court began to come to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental color-blindness, the appealing notion that the color of a person\u27s skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society, and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color are taken into account by educators, employers, and other key decision-makers, both public and private. Did the special admissions program at the University of California at Davis violate the equal protection clause of the Fourteenth Amendment to the Federal Constitution? Allan Bakke said it did, and the Supreme Court of California concurred when it sustained Bakke\u27s complaint-at least in the absence of a clearer demonstration that Davis could not integrate its medical school without resorting to racial preferences. Although distinguished legal authorities have said the Constitution is color-blind, the Constitution itself says no such thing. All that the Fourteenth Amendment guarantees is the equal protection of the laws. The mandate of equal treatment, however, would seem to presuppose equal status or circumstances. It is not unconstitutional to require the rich to pay higher taxes than the poor, or to impose military obligations on the young and healthy and not on the old or the infirm, or to provide emergency funds for the victims of natural disasters. Whether government-sponsored preferences based on race are constitutionally permissible should also depend, one can reasonably maintain, upon an examination of the similarity or dissimilarity in the contemporary situation of whites and minorities. Arguably, of course, racial distinctions are unique-a particular target of the post-Civil War amendments-and not to be compared with distinctions based on wealth or age or physical condition or acts of God. And indeed the Supreme Court has declared that race is a suspect governmental classification. But even racial preferences may be justified if they serve a compelling state interest and are the least drastic means of accomplishing an appropriate end

The Changing Role of Labor Arbitration (Symposium: New Rules for a New Game: Regulating Employment Relationships in the 21st Century)

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration\u27s golden age. I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration could fairly be considered part and parcel of the collective bargaining process itself, and the courts were more than happy to keep hands off. When unions and employers began to make federal and state statutes part of the agenda of arbitration, however, as happened increasingly in the 1970s, it became an entirely different story. Statutory interpretation is the special province of the courts. They are not going to let some private arbitrator get away unchallenged with palpable misreadings of the legislative text.\u27 Academics like me may think a sound argument can be made that, at least as between the initial contracting parties, arbitrators\u27 honest mistakes of law should still receive deference in the courts much like the deference accorded their honest mistakes of fact. Yet even the proponents of this view would not allow an arbitrator to mangle an individual employee\u27s right against race or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Closer judicial scrutiny of arbitration awards involving statutory claims was inevitable. So, the first great change in the role of arbitration was its extension into the statutory domain in the collective bargaining context Perhaps not coincidentally, the courts about this time became more and more willing to test traditional contract awards against the vaguer standard of public policy. Then, beginning mostly in the 1980s and accelerating sharply in the 1990s, came another major development-arbitration systems established unilaterally by nonunion employers. These systems were sometimes designed to divert from the courts employee claims of wrongful discharge under several modifications in the traditional American doctrine ofemployment at will. Even more eagerlypromotedby employers, however, was the use of arbitration to keep statutory discrimination claims away from civil tribunals and especially juries. This Article will treat the legal and policy implications of these various procedures and standards for dispute resolution. I shall deal briefly in turn with (1) mandatory arbitration of statutory rights, (2) judicial review of arbitration awards on public-policy grounds, and (3) arbitration of claims that there was not good cause for employee discharges

Why Mandatory Arbitration May Benefit Workers

Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided that due process guarantees are in place and statutory remedies are available

Employment-at-Will—Is the Model Act the Answer?

Over the last quarter century, the most significant development in the field of labor and employment law has been a nationwide movement toward a revision of the at-will employment doctrine. Courts in over forty-five jurisdictions have used one or more of three main theories to carve out exceptions to the previously allpervasive principle. Unfortunately, though one can applaud the values embodied in these decisions, there are serious deficiencies in the common law modifications. The purpose of this Article is to outline those defects and to demonstrate that the interests of employees and employers alike would be better served by new remedial legislation, such as the Model Employment Termination Act