ADR in the Workplace

TF 10:30-11:45
Room 310
Spring 2006

Prof. Bales
572-6937, balesr@nku.edu
Office 510
 

CLASSROOM PROCEDURE
I prefer to take volunteers rather than calling on people, particularly in a seminar-type setting. However, I will use a card system if (1) there is a persistent lack of volunteers, (2) the same few people volunteer every time, or (3) the volunteers are not demographically representative of the class as a whole. Everyone’s name goes on a playing card. If I draw your card, you are “on.” At the end of class, the “on” cards will be returned to the deck, and the deck shuffled.

You are responsible for everything discussed or distributed in class. If you miss a class, it is your responsibility to get notes, handouts, etc. from a trusted fellow student.

Your grade will be determined as follows:

25% Attendance, class preparation, presentation of your paper, participation in class and in exercises (a sign-up sheet for the exercises is on my office door). My standard for evaluating students on this basis will be: did the student contribute significantly to the overall success of the class?

75% Paper

Papers may be on a topic of your choice. The paper should be 25-30 pages, in 12-point Times New Roman (or the substantial equivalent) type with 1" margins, and must conform to all the requirements for an upper-division writing class.

You may choose your topics on a first-come, first-reserved basis. You may reserve a topic by giving or e-mailing me a note. On your note, please provide me with your name, your topic, your email address, and, if you choose a topic from the attached list, please identify the topic number. You may choose from the attached list of possible topics, or you may choose your own. If you choose your own, you must get prior approval from me (I want to help you avoid selecting an overly-broad or -narrow topic). Choose a novel legal topic—one that allows you to argue for a position that has not yet been advanced in a law review article. You are not ineluctably tied to your topic selection. If subsequent research pulls you toward a tangential issue, just let me know and obtain my approval.

A proposed topic (1 short paragraph) is due to me on January 27, 2005. Please provide me with your name, your topic, your email address, and, if you choose a topic from the attached list, please identify the topic number. Please also form groups of two, and inform me who your “buddy” is. At some point in the month of April, you must edit your buddy’s paper, and vice-versa. The editor must make at least one red mark per paragraph, must use the proofreading chart included in the writing packet, and must sign and date the writer’s ALW form. Please turn in your buddy’s edits to your paper when you submit the final version of your paper.

The schedule for turning in drafts is indicated on the ALW form in the research packet. I will be happy to review additional drafts as long as you submit them to me well before the final due date. Papers are due at noon on Tuesday, April 25, 2006. I will not, under any circumstances, accept any late papers. Plan to have your paper prepared early in case an emergency requires your absence on or near the due date. I need the papers in on time so I can timely submit final grades.

We all learn better writing techniques from having someone critique our written work. If you do not turn in drafts, you will learn little from the writing experience. I will not sign an ALW form for anyone who does not comply with the schedule for drafts. Please fill out and turn in the ALW form with each draft. Please include your e-mail address on the ALW form, so that I can promptly notify you once I have finished reviewing your drafts.

This is the last significant writing experience that most of you will have in law school before you graduate and begin your practice of law. It is my responsibility to make sure that when you leave my class, you have the research and writing skills necessary to practice successfully. I take this responsibility very seriously. (I have a personal interest in the issue – if Chase a graduate is a poor writer, the legal community will think poorly not only of that graduate, but also of Chase.) If you are unwilling to do the work it takes to ensure that your paper is grammatical, understandable, demonstrates a basic familiarity with the Bluebook, and avoids blatant misstatements of law, then I suggest you seek ALW credit elsewhere. If you cannot comply with these criteria, then you should not be practicing law, and I will not sign your ALW form.

OFFICE HOURS:
I will always be available for a few minutes before class, and as long after class as you are willing to stay. I usually am in my office from about 8:15 a.m. until about 2:30 p.m.

ASSIGNMENTS:

1. When a group of employees is first organized into a union, the next step is to negotiate a collective bargaining agreement with the employer. Frequently, the employer refuses to agree to any alterations in the terms and conditions of employment, creating impasses and making the whole process of unionization rather pointless. In Canada, the terms of the first collective bargaining agreement are established by arbitration. Is this a better way of doing things? Does it fit the Supreme Court’s vision of labor autonomy (that is, its doctrine of government noninterference) and self-determination? See, e.g., Dunlop Commission Report at 21-22; 12 Labor Lawyer at 128-29; Paul Wieler, Governing the Workplace.
    
2. Is a labor arbitrator bound by an arbitral decision in a prior case? The circuits are split. See Dana Corp., 278 F.3d 548 (6th Cir. 2002).
    
3. Does a union or airline ee have a statutory right under § 184 of the RLA to compel arbitration before a System Board of Adjustment when the matter in dispute involves the proper scope of jurisdiction of the Board but does not involve the interpretation or application of a provision in a collective bargaining agreement? See Whitaker v. American Airlines, 285 F.3d 940 (11th Cir. 2002).
    
4. Does the doctrine of complete preemption apply to the Railway Labor Act (the statute, analogous to the NLRA, that governs railroad and airline workers)? The circuits are split. See Geddes v. American Airlines, No. 02-13885 (2/21/03).
    
5. In a suit to compel arbitration under the Federal Arbitration Act, is the presence of a federal question in the underlying dispute (e.g., a Title VII claim) sufficient to support subject matter jurisdiction? Cf. Discover Bank v. Vaden, 396 F.3d 366 (4th Cir. 2005) (jurisdiction exists) and Tamiani Partners, Ltd. v. Miccosukee Tribe, 177 F.3d 1212 (11th Cir. 1999) (same) with Westmoreland Capital Corp. v. Findlay, 100 F.3d 263 (2d Cir. 1996) (no jurisdiction).
    
6. Does federal diversity jurisdiction to review an arbitration award depend on whether the amount of the award meets the $75,000 minimum amount in controversy, or on whether the underlying claim met that amount? The circuits are split. See Luong v. Circuit City Stores Inc., No. 02-56522 (9th Cir. 1/30/04).
    
7. What type of notice must an employee receive before she is held bound by an employment arbitration agreement? See, e.g., 321 F. Supp. 2d 142.
    
8. What type of consent must an employee give before she is held bound by an employment arbitration agreement?
    
9. May an employer retain the unilateral right to modify an employment arbitration agreement?
    
10. Are arbitration agreements that apply to employee claims but not to employer claims enforceable? What if the er “carves out” certain types of claims that tend to be brought by ers and not ees?
     
11. What type of consideration must an employer give to an employee in return for the employee’s promise to arbitrate?
     
12. Are arbitration agreements that impose a statute of limitations (either explicitly or through a notice provision) different from the statute of limitations imposed by law enforceable?
     
13. Are arbitration agreements containing forum selection clauses enforceable?
     
14. Should employment arbitration agreements containing confidentiality provisions be enforceable? See, e.g., 103 P.3d 753.
     
15. Evaluate the arguments made concerning the "repeat player effect" in employment arbitration.
     
16. What is the proper scope/standard of discovery in employment arbitration?
     
17. Are arbitration agreements containing attorney-fee provisions enforceable, especially as they relate to fee-shifting statutes?
     
18. What is the breadth of the FAA’s exclusion of “transportation workers”?
     
19. Should a union be permitted to agree to the arbitration of statutory claims on behalf of its members?
     
20. Compare arbitrator use of external law in labor arbitration v. employment arbitration.
     
21. Compare arbitrator use of precedent in labor arbitration v. employment arbitration.
     
22. Should judicial review be different for employment arbitration than it is for labor arbitration?
     
23. Compare discovery in labor arbitration and employment arbitration.
     
24. Compare the use of evidence in labor arbitration and employment arbitration.
     
25. Reinstatement (with or without back pay) is a typical remedy in labor arbitration, but is rare in litigation. Should it be a typical remedy in employment arbitration?
     
26. Are “open door policies” meaningful, or just window-dressing?
     
27. When do peer review systems violate the NLRA? See text at 772-75.
     
28. Are ombudspersons really neutral, or are they just employer stooges?
     
29. What should an ombudsperson do if an employee reports sexual harassment but requests that the report be kept confidential?
     
30. What is arbitrability? [If this topic turns out to be too broad, you might want to focus on one type of arbitrability.]
     

ADR in the Workplace
Exercise Sign-Up Sheet

Arbitration Exercise:

Social worker Sandy Walker ______________________________

Walker’s lawyer #1 ______________________________

Walker’s lawyer #2 ______________________________

Walker’s supervisor M. J. Lucas ______________________________

Riverside lawyer #1 ______________________________

Riverside lawyer #2 ______________________________

Mediation Exercise:

Social worker Sandy Walker ______________________________

Walker’s spouse ______________________________

Walker’s lawyer #1 ______________________________

Walker’s lawyer #2 ______________________________

Walker’s supervisor M. J. Lucas ______________________________

Riverside’s VP / Human Resources ______________________________

Riverside’s general counsel ______________________________

Riverside’s outside counsel ______________________________

Mediator ______________________________

Copyright 2006 Richard Bales. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.