Arbitration

• What Can Be Arbitrated
• Judicial Deference

Arbitration refers to the process whereby parties involved in Collective Bargaining disputes agree to be legally bound by the decision of neutral, third-party intermediaries called arbitrators. Usually, arbitrators are chosen by state labor relations boards. In public education labor disputes, arbitrators are typically selected by mutual agreement of local school boards and employee bargaining units. The Arbitration process needs to be distinguished from Mediation, conciliation, fact-finding, and other forms of conflict resolution in Collective Bargaining disputes, because, unlike Arbitrations, these other measures of conflict resolution are not legally binding on the parties involved in the disagreements.
The Arbitration process is preferred in labor disputes in both the private and public sectors, because it is seen as a relatively fast and inexpensive method of resolving legal disputes involving the meaning and interpretation of a contract. Additionally, the Arbitration process effectively reduces judicial workloads. The current and continued judicial deference given to the Arbitration process should ensure its wide use as a viable method of conflict resolution in labor disputes involving public education.

What Can Be Arbitrated?

There is a strong legal as well as public policy inclination in the United States favoring the use of Arbitration to settle labor oriented disputes. This strong predisposition toward the use of Arbitration to settle labor disputes is reflected in the law. In a famous trio of U.S. Supreme Court labor cases, commonly referred to as “the steelworkers’ trilogy,” the justices were of the opinion that the rights of employees to bargain collectively and to engage in Arbitration should be construed broadly. These three labor cases are United Steelworkers of America v. American Manufacturing Company (1960), United Steelworkers of America v. Warrior & Gulf Navigation Company (1960), and United Steelworkers of America v. Enterprise Wheel & Car Corporation (1960). Presently, national and state laws endorse the use of Arbitration in disputes involving public education.
In recent years, a majority of states have adopted the legal principles of the steelworker’s trilogy cases for the arbitrability and enforcement of Collective Bargaining disputes in the public sector, including public schools. In both private and public sector labor cases, the judicial tendency is to take a very broad view of the issues covered under Arbitration. While variations and disagreements still exist among states concerning what issues are specifically subject to Arbitration, no state currently allows the Arbitration of prohibited subjects of Collective Bargaining. For instance, examples of collective-bargaining–prohibited subjects in public schools would be issues relating to staffing, transfer and assignment, school curricula, and the length of the school year. Topics in education labor disputes routinely covered under Arbitration include labor conflicts involving teacher evaluations, contractual definitions of what constitutes a normal work week for teachers, and terminations of teachers’ paid Extracurricular Activities.
Determining whether specific disputes are subject to Arbitration falls into two basic categories: contractual or legal arbitrability. Contractual arbitrability refers to whether the parties agreed to bring their disputes to Arbitration. Conversely, legal arbitrability addresses whether the parties lawfully can agree to allow an arbitrator to settle their dispute. Again, courts must evaluate whether Collective Bargaining agreements permit, or can legally be subject to, Arbitration.

Judicial Deference

In the steelworkers’ trilogy collection of labor cases, the Supreme Court effectively limited judicial involvement in the Arbitration process and imposed a policy of judicial deference favoring Arbitration. When Arbitration is employed in the conflict resolution process of labor disputes, the role of the courts is significantly curtailed. Insofar as disputing parties in the Arbitration process rely on an arbitrator’s interpretation of the issues as well as the imposition of decisions and awards, the judiciary does not often deal with the merits of the cases. Instead, courts review Arbitration decisions and awards only to assure that their legal outcomes draw their essences from the underlying Collective Bargaining agreements and that the legal remedies that arbitrators imposed were not contrary to law or the managerial prerogatives of local school boards.
The legal standard of review for Arbitration disputes can potentially have a significant impact on their outcome. While the judicial review of Arbitration orders is often limited in scope, the majority of state courts have developed specific standards of review for Arbitration using both Common Law principles and statutory requirements. The most basic Common Law standard of review is that an arbitrator’s award can be disallowed only in instances where there has been Fraud or misconduct or there are obvious mistakes in law or fact that were used in the arbitrator’s award decision.
Many state courts use what is referred to as the “essence” test developed by the Supreme Court in the steelworkers’ trilogy cases. Basically, the essence test analyzes whether an arbitrator’s award “derives its essence” from a Collective Bargaining agreement. If an award does draw its essence from the agreement, the courts must uphold the Arbitration award.

See also Collective Bargaining; Contracts; Mediation; Unions
Further Readings
Brady, K. P. (2006). Bargaining. In C. J. Russo (Ed.), The yearbook of education law: 2006 (pp. 101–110). Dayton, OH: Education Law Association.
DeMitchell, T. A., & Cobb, C. D. (2006). Teachers: Their union and their profession: A tangled relationship. West’s Education Law Reporter, 212, 1–18.
Dodd, V. J. (2003). Practical education law for the twentyfirst century. Durham, NC: Carolina Academic Press.
Hodges, A. C. (1990). Symposium on labor Arbitration thirty years after the steelworker’s trilogy in the public sector. Chicago–Kent Law Review, 66, 631–683.
Legal Citations
United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564 (1960).
United Steelworkers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593 (1960).
United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574 (1960).