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LABOR ARBITRATION
Law 2511
Professor Roger I.
Abrams
Fall 2004
Description
This is
a course about the practice of labor arbitration, a critical part of the work
of labor lawyers on both union and management sides. It is a workshop, and so
students will develop lawyering skills useful across
the spectrum of alternative dispute resolution forums. We focus on the most
common issues, trying to understand the importance of contract interpretation
and application and how the arbitral decision making process differs from
typical court adjudication.
During
the course of the quarter, students will develop skills of brief writing and
oral argument, presenting evidence, doing examination and cross-examination of
witnesses, and presenting documentary evidence into a record. The workshop
culminates in a comprehensive arbitration simulation with witnesses and
documents.
Students
will be required to write two arbitration briefs – one for the union side, the
other for management. (In lieu of a
second arbitration brief, students may write an arbitrator’s opinion.) The
first project is based on a complete transcript. The second project is based on notes taken
during the arbitration simulation. The
evaluation for the course includes class participation.
Assignment
For the first day of
class, Monday September 13, we will discuss two typical labor arbitration cases,
the first demonstrating the importance of contract language, the second the
pliability of the central context of “just cause.”
Kroger Supermarkets
in
The materials for
the course are available through Gnomon Copy and my secretary, Mrs. Mary
Murphy, has copies of the syllabus. Read pages 1-18 for the first day of class.
Call the bookstore (617/373-2286) or Gnomon Copy (617/536-4600) to determine if the course materials are available in advance.
LABOR ARBITRATION SYLLABUS
Professor Roger I. Abrams Fall
2004
Days
1 & 2 -- INTRODUCTION: The Process
and the People
A.
Kroger (contract
reading) 3
B.
Walt Disney
World (just cause) 11
C.
The Legal
Context: The Steelworkers Trilogy
a. American Mfg. 18
b. "Arbitral Therapy" 22
c. Warrior & Gulf 23
d. Problem: Play Ball 30
e.
D.
Code of
Professional Responsibility Sec.1 35
E.
Arbitrator
Biographies - selection 37
Day
3 -- ARBITRABILITY: The Jurisdiction of the Arbitrator
A.
Procedural
Arbitrability
1. Adelphia Cable (timeliness) 42
2. Problem – Golden Gopher Timeliness 48
B. Substantive
Arbitrability
1. Problem: What’s an Employee to Do? 50
2.
Problem: Play Baseball Redux 51
C.
Code
- Sec 2 Responsibilities 52
Day 4 -- FACT-FINDING AND DECISION-MAKING
A.
Velsichol (What
happened?) 55
B.
Code -
Sec. 5 Hearing Conduct 63
C.
Contract
Interpretation
1. CMHA (bargaining history) 65
D.
Arbitral Decision
Making 75
Days
5 & 6 -- DISCHARGE AND DISCIPLINE
A.
Toward a Theory
of Just Cause 92
B.
Inability to Do
the Job
1.
C.
Absenteeism
1. Stanford
University 99
D.
Misconduct
1.
IRS (Veltsos) (threat) 108
2.
Kindred Nursing
Centers 115
E.
Negligence at
Work
1.
Marine Corps 129
F.
Disruptive
Behavior at Work
1.
Boston Globe
(alcohol and drugs) 138
G.
Work Rules 147
H.
Off-Duty
Misconduct
1.
U.S. Customs
(spousal abuse) 148
I.
Discipline and
Discharge Problems 157
Day
7 -- MANAGEMENT
RIGHTS, WAGES, OVERTIME
A.
Orange County
Schools (management directives) 160
B.
Problem: Java 165
C.
Gaylord Container
Corp. (subcontracting) 166
D.
Problem -
Bargaining Unit Work 174
E.
City of
F.
Problems: Call-In
Pay and Mistaken Overtime 185
G.
Industrial
Maintenance Co. (overtime) 188
H.
Code Section 6 193
I.
Problem –
Computing Premium Pay 194
J.
Problem – The
Bomb Scare 195
Day
8 -- VACATIONS, HOLIDAYS, FRINGE BENEFITS,
EXTERNAL LAW
A.
Unified Services (sick leave and
vacations) 196
B.
Problem: Too Late for a Vacation? 205
C.
Leaves of Absence 206
D.
Problem – Happy
Christmas 206
E.
F.
IRS (Veltsos II) (FMLA) 208
G.
DAY
9 -- ARBITRATION SIMULATION