IRL402-Arbitration Cliff Donn
Spring 2006 Office R-228 Ext. 4339 

TOPICS: The basic focus of this course is on the resolution of disagreements between labor and management when there is a collective bargaining agreement in place. Particular emphasis will be placed on the most common terminal step of the grievance procedure in the United States, the submission of the dispute to an independent third party for a binding decision.

SOURCES: The text for the course will be Elkouri and Elkouri, How Arbitration Works, 6th edition. Other references, on reserve at the library, include selections from the Labor Law Journal, the Dispute Resolution Journal and several books.

REQUIREMENTS: All students will take a comprehensive final examination on Wednesday, May 11, at 9:00 a.m.. In addition there will be one mid-term examination in class on Wednesday, March 15. The mid-term examination is optional in the sense that anyone who misses it for any reason will simply have that much additional weight added to the final examination. Alternatively, any student who wishes to substitute a term paper for the mid-term examination may do so by securing the permission of the instructor during the first three weeks of the semester.

Each student will also write four arbitration briefs and two arbitration decisions (five of these six will count) as well as participating in a simulated arbitration exercise. These activities together will count for 30% of the student's grade, as will the mid-term examination. The final examination will count 40% of the grade for students who have taken the mid-term or written a term paper and 70% for those who have not. It is also possible to gain a 2% increase in your semester grade by attending a real arbitration and writing a one-page analysis of the issues in the case. See the instructor for details.

Cell phones must be turned off during class (not set to vibrate). Students are not allowed to leave class to receive or make phone calls. If you anticipate an emergency telephone call on some particular day that necessitates your leaving your phone on, tell the instructor before class begins.

You must complete all assigned work in order to receive a passing grade in the course. Finally, regular class attendance and participation in class discussion are expected. Students who attend class and are prepared for discussion on a daily basis can expect these facts to be reflected in their grades. The inverse is also true.  The instructor will announce specific policies with regard to class attendance and class preparation.

DISABILITY: If you have a documented disability and wish to discuss academic accommodations, please contact the instructor during the first week of class.

CLASS SCHEDULE:  Please use this schedule to plan your reading which should be done before the relevant class.
I. Course Introduction
A. Introduction January 18
B. Nature of Arbitration January 20
II. Grievance Procedures
A. Nature of the Grievance Procedure January 23,25,27
B. Scope of the Grievance Procedure January 30
III. Legal Framework of Arbitration
A. Basic Legal Framework February 1,3
B. Arbitrability February 6,8
IV. Procedural Issues
A. The Hearing and the Award February 10,13,15,17
B. Evidence in Arbitration February 20,22,24, March 6
V. Interpreting the Agreement
A. Language of the Agreement March 8,10,13
B. Relevance of Law March 17,20
C. Awards as Precedents March 22
D. Custom and Past Practice March 24,27
VI. Substantive Issues
A. Management Rights March 29,31
B. Seniority April 3,5
C. Discipline and Discharge April 7,10,12,26
D. Employee Rights and Benefits April 28, May 1
VII. Summary and Conclusions May 3,5

Mid-term Exam March 15
Simulation April 19,21,24
Final Examination May 11, 9:00 a.m.


WHAT I EXPECT FROM YOU:  I expect that you will come to class each day on time, having done the reading assignment and prepared to participate by asking and answering questions and by expressing your opinions. I expect that you will ask questions about anything you don't understand. I expect that assignments will be done and turned in on time and that they will reflect the best work you can do and that they will reflect only your own work. I expect that you will contact me if you are having any problems in the course or if you are having personal problems which may affect your performance in the course. Overall, I expect you to work hard at getting the most out of this course that you possibly can.

WHAT YOU CAN EXPECT FROM ME:  You can expect that I shall come to class on time each day having thought about and prepared the material. You can expect that I shall answer your questions to the best of my ability and that your opinions will be heard with respect. You can expect that your assignments and exams will be graded carefully and returned in a timely manner and that you will be given an explanation of why you receive the grades you receive. You can expect that I shall make time to see you if you need to see me and that I shall keep regular office hours.

WHAT WE SHOULD EXPECT FROM EACH OTHER:  A serious commitment to learning and a serious effort toward that end.

OUTCOMES: At the end of this class, the successful student will be familiar with the various stages of grievance procedures and with the factors that determine whether grievance procedures work well or not.  The student will understand how arbitrators make decisions and how arbitration advocates present cases.  The student will be able to identify the information an arbitration advocate would want to have in preparing to present a case and will be able to access sources containing such information.  The successful student will be able to present and/or consider an arbitration case in an organized and logical manner.


I. B. Nature of Arbitration

  1. EE Chap. 1

II. A. Nature of the Grievance Procedure

  1. EE Chap. 5
  2. Lewin and Peterson, "Behavioral Outcomes of Grievance Activity," Industrial Relations, October 1999


  1. Bacharach and Bamberger, "The Power of Labor to Grieve: The Impact of the Workplace, Labor Market and Power-Dependence on Employee Grievance Filing," Industrial and Labor Relations Review, July 2004
  2. Ichniowski and Lewin, "Grievance Procedures and Firm Performance," in Kleiner, et al., Human Resources and the Performance of the Firm

II. B. Scope of the Grievance Procedure

  1. Posthuma and Swift, "Legalistic vs Facilitative Approaches to Arbitration: Strengths and Weaknesses," Labor Law Journal, Fall 2001
  2. EE Chap. 3, (beginning with section entitled "Subject Matter of Rights Arbitration")


  1. Graham and Heshizer, "The Effect of Contract Language on Low-Level Settlements of Grievances," Labor Law Journal, July 1979
  2. Zack, Grievance Arbitration, Chap. 11

III. A. Basic Legal Framework

  1. EE Chap. 2


  1. St. Antoine, "The Law of Arbitration," Stern and Najita, Labor Arbitration Under Fire
  2. Nicolau, "Whatever Happened to Arbitral Finality?  Is It Their Fault or Ours?" Labor Law Journal, May 1997

III. B. Arbitrability

  1. EE Chap. 6


  1. Widman, "What's Certain is the Lack of Certainty About Who Decides the Existence of the Arbitration Agreement," Dispute Resolution Journal, May-July 2004
  2. Zack and Bloch, Labor Agreement in Negotiation and Arbitration, Chap. 5

IV. A. The Hearing and the Award

  1. EE Chap. 7


  1. Nelson and Uddin, "Arbitrators as Mediators," Labor Law Journal, April 1995
  2. Mittenthal, "The Impact of Lawyers on Labor-Management Arbitration," Dispute Resolution Journal, August-October 2005

V. B. Evidence in Arbitration

  1. EE Chap. 8
  2. Wolff, "Use of Incognito Testimony of a Non-Employee Witness in a Discharge for Conduct Arbitration," Labor Law Journal, March 1999
  1. Sullivan and Harrick, "The Resolution of the After-Acquired Evidence Controversy," Labor Law Journal, May 1995

V. A. Language of the Agreement

  1. EE Chap. 9


  1. LaRocca, "Ambiguities in Labor Contracts: Where Do They Come From?" Dispute Resolution Journal, February-April 2004
  2. Zack and Bloch, Labor Agreement in Negotiation and Arbitration, Chap. 2

V. B. Relevance of Law

  1. EE Chap. 10


  1. Zack and Bloch, Labor Agreement in Negotiation and Arbitration, Chap. 3
  2. Keene, "Collective Bargaining and Compulsory Arbitration of Americans with Disabilities Act Claims," Labor Law Journal, December 1997

V. C. Awards as Precedents

  1. EE Chap. 11


  1. Harris, "The Use of Precedent in Labor Arbitration," The Arbitration Journal, March 1977

V. D. Custom and Past Practice

  1. EE Chap. 12

VI. A. Management Rights

  1. EE Chap. 13


  1. Zack and Bloch, Labor Agreement in Negotiation and Arbitration, Chap. 4
  2. Zack, Grievance Arbitration, Chap. 1

VI. B. Seniority

  1. EE Chap. 14


  1. Zack and Bloch, Labor Agreement in Negotiation and Arbitration, Chap. 6
  2. Zack, Grievance Arbitration, Chap. 9

VI. C. Discipline and Discharge

  1. EE Chap. 15


  1. Bingham and Mesch, "Decision Making in Employment and Labor Arbitration," Industrial Relations, October 2000
  2. Bamberger and Donahue, "Employee Discharge and Reinstatement: Moral Hazards and the Mixed Consequence of Last Chance Agreements," Industrial and Labor Relations Review, October 1999
  3. Walsh et al., "Firefighters Off-Duty Misconduct and 'Just Cause' for Discipline: A Review of Arbitration Cases," Journal of Collective Negotiations in the Public Sector, V.30, n.3, 2003
  4. Wolkinson and Ormiston, "The Reconciliation of Work-Family Conflicts in Arbitration," Dispute Resolution Journal, August-October, 2004

VI. D. Employee Rights and Benefits

  1. EE Chap. 17


  1. Zack, Grievance Arbitration, Chaps. 5,7,8
  2. Anton and Ward, "Every Breath You Take: Employee Privacy Rights in the Workplace -- An Orwellian Prophecy Come True?" Labor Law Journal, March 1998
  3. Lichtash, "Inappropriate Use of E-mail and the Internet in the Workplace," Dispute Resolution Journal, February-April 2004