Dennis Nolan - Labor and Employment Arbitration

_________

JESSE H. CHOPER

Professor of Law,
University of California, Berkeley

DAVID P. CURRIE

Professor of Law, University of Chicago

YALE KAMISAR

Professor of Law, University of San Diego
Professor of Law, University of Michigan

MARY KAY KANE

Chancellor, Dean and Distinguished Professor of Law,
University of California,
Hastings College of the Law

LARRY D. KRAMER

Dean and Professor of Law, Stanford Law School

WAYNE R. LaFAVE

Professor of Law, University of Illinois

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, University of California, Los Angeles

JAMES J. WHITE

Professor of Law, University of Michigan

Second Edition

By

DENNIS R. NOLAN

Webster Professor of Labor Law
University of South Carolina

Mat #40332643

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ISBN13: 9780314158826

ISBN10: 0314158820

In Memory of

Joseph L. Nolan, 19101990

And for

Fran,

To Whom I Owe All

*

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The world of workplace dispute resolution has been transformed since I began work in that field. Twenty-seven years ago I published a predecessor volume, LABOR ARBITRATION IN A NUTSHELL. In 1979, workplace dispute resolution was virtually synonymous with labor arbitration. Like most other labor lawyers at the time, I had no inkling that labor arbitration would become a mere subset of a much broader topic.

In 1991, the Supreme Court decided Gilmer v. Interstate/Johnson Lane , 500 U.S. 21, and inadvertently expanded individual employment arbitration from a niche market largely confined to the securities industry into a growth market now covering many millions of employees. When the world was ready for another new book, I published the first edition of LABOR AND EMPLOYMENT ARBITRATION IN A NUTSHELL (1998). Despite equal billing in the title, employment arbitration occupied a relatively small portion of the work, and even that coverage appeared almost as afterthoughts at various points in the expanded coverage of labor arbitration. The explanation for such limited treatment was simple: the legal parameters of employment arbitration were, even seven years after Gilmer , just beginning to be drawn. Even the most basic questions, such as whether the Federal Arbitration Acts exclusion of contracts of employment meant that the FAA did not apply to any employment contract, were still up VI for grabs. There were still very few employment arbitration agreements in place, and these produced relatively few attempts to compel or resist arbitration. There was, in short, little raw material for the writer to use.

How the field has changed since then! Labor arbitration, which at the beginning of my career filled the universe, has shrunk apace with the unions that use it. Unions represent barely an eighth of todays workforce (and less than a twelfth of the private sector workforce) compared to nearly a quarter in 1979. Union membership dropped by 29% during those years from a near-peak of 22 million to just 15.7 million. There are no precise figures on the total number of labor arbitrations, but some data support an educated guess that the they have declined roughly in proportion to the decline in union membership. That correlation is intuitively reasonable, given the lack of any reason to believe that unions would arbitrate more frequently, in relation to their membership numbers, than they used to.

In the meantime, however, individual employment arbitration became an established practice. The courts now uniformly enforce arbitration agreements in the face of most legal challenges. Various court decisions have marked the requirements necessary to make an arbitration binding. Arbitration providers like the American Arbitration Association have created separate panels of arbitrators qualified to deal with statutory issues. Ethical guidelines have been developed by arbitration providers, by the National Academy of Arbitrators, and by the blue-ribbon VII committee of advocates, arbitrators, and agencies that drafted the Due Process Protocol in 1995. The number of such cases remains smallperhaps several thousand a yearbut those arrangements cover more employees each year and inevitably will produce more arbitrations.

The time is therefore ripe for a second edition that gives employment arbitration the serious attention and analysis it deserves, while also updating the material on labor arbitration. Because one can no longer view employment arbitration as a simple addendum to labor arbitration, the second edition now consists of two distinct parts. Part I covers labor arbitration. The changes from the last edition consist mainly of updating, stylistic improvements, and some reorganization. Part II covers employment arbitration. In three new chapters, I consider employment arbitrations origins and legal bases; the requirements for, and impediments to, enforcing individual arbitration agreements; and the special procedural concerns presented by employment arbitration under the FAA.

This book is not intended as a substitute for classroom instruction in labor and employment arbitration, still less for practical experience in the field. Nor is it intended to (or could it) take the place of the detailed treatises already available to the practitioner and scholar. Its purpose is much narrower, to provide students and practitioners alike a simple but comprehensive description of labor and employment arbitration in America. Ideally this overview VIII will serve as an introduction to more thorough study in other forms.

Even this limited purpose requires a good bit of detail. While trying to strike a balance between simplicity and comprehensiveness, I may have erred too much in the latter direction. If so, I apologize to the reader who looks for a shorter treatment. Nevertheless, I found it necessary to present the major issues in arbitration law at length to permit a full exploration of their importance and of the conflicting opinions on them. I have made every effort to be fair, but inevitably some personal beliefs have made their way into the text. The attentive reader should be able to identify these easily, and evaluate them accordingly.