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Arbitration training DVD
December 20, 2005 by Ross Runkel at LawMemo
EVIDENCE PROGRAM DVD AVAILABLE: Interested in a thought-provoking and lively instructional DVD for classroom and training use that deals with evidence issues in labor arbitration? The National Academy of Arbitrators has released a video production of "The Case of the Accused Assistant," from its panel on Evidence and Labor Arbitration, presented at the Academy's 2005 Annual Meeting in Chicago.
The case scenario involves the discharge of a nursing home employee for alleged patient abuse. A number of difficult evidentiary problems are considered regarding relevance, hearsay, patient privacy, opinion testimony, contract interpretation, and more. The running time of the video is 93 minutes.
The panel program was prepared and moderated by Barry Winograd, an arbitrator from Oakland, CA, who also is on the adjunct law school faculty at the University of California, Berkeley, and the University of Michigan. Management and union advocates from Chicago provide opening and closing statements, as well as argument on 10 evidence objections. The advocates are Howard Bernstein and Marc Jacobs for the employer, and Patricia Collins and Gilbert Cornfield for the union.
After each question, a five arbitrator panel from throughout the United States and Canada provides evidence rulings and comments. The arbitrators are Terry Bethel (Indiana), Morris Davis (California), Jane Devlin (Ontario), Rocky Perkovich (Illinois), and Carol Wittenberg (New York). At the end of the session, the arbitrators render their awards, explaining how they would decide the case. Over 300 people attending the program also provided rulings as the session unfolded, and at the conclusion of the proceeding.
Use of the video for education and training in the labor relations and academic communities is encouraged. The video includes chapter breaks to permit stop-action classroom discussion for each evidence issue. Accompanying the DVD is the written fact scenario and the questions posed for arbitrator rulings.
"The Case of the Accused Assistant" can be ordered for $25 (shipping included) from the NAA Operations Center, One North Main Street, Suite 412, Cortland, New York 13045. The NAA phone is (607) 756-8363, and email is naa@naarb.org.
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Federal jurisdiction to vacate $zero award
December 12, 2005 by Ross Runkel at LawMemo
If a party in federal court seeks to vacate a $zero award, does the court have jurisdiction?
Assume there is diversity of citizenship. The amount of the award was $0. The amount that will be sought in the next arbitration if the $0 award is vacated was $2,000,000.
The question is whether the amount in controversy exceeds $75,000 as required by the statute that grants federal courts jurisdiction.
The answer is yes.
So says the 11th Circuit. Peebles v. Merrill Lynch (11th Cir 12/12/2005).
An earlier case from the 9th Circuit reached the same result. Theis Research v. Brown & Bain (9th Cir 10/20/2004).
Source: Paul Secunda at Workplace Prof Blog: Federal Jurisdiction and the Vacation of Arbitration Awards
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Use it or lose it
December 06, 2005 by Ross Runkel at LawMemo
Here's an interesting legal theory for not enforcing an agreement to arbitrate: material breach of contract.
An ex-employee (who had signed an arbitration agreement) claimed she had been wrongfully terminated, she filed an arbitration demand, but the employer refused to participate in the arbitration proceedings. The employee then sued in state court, and the employer removed the case to federal court and moved to compel arbitration.
I would have thought this was a simple waiver by the employer of the right to arbitrate.
The trial court denied arbitration on the ground that the arbitration agreement was unconscionable.
The 9th Circuit affirmed on a totally different ground. The employer's refusal to participate in the arbitration proceedings was a material breach of contract. Not just the employment contract, but a breach of the arbitration agreement. Therefore, the employee was excused from arbitrating.
I'm not sure why the court relied on breach-of-contract theory, because it went on to say that the employer had waived the right to arbitrate.
Brown v. Dillard's, Inc. (9th Cir 12/06/2005).
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