Arbitrator Dennis Nolan heads NAA
May 27, 2006 by Ross Runkel at LawMemo
The NAA is a national professional and honorary association of labor-management arbitrators. Membership is limited to arbitrators who are of good moral character and have extensive experience serving as a neutral arbitrator in final and binding labor arbitration cases.
The Academy has been instrumental in drafting (along with FMCS and AAA) the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes and in interpreting the Code.
Dennis R. Nolan joined the faculty of the University of South Carolina School of Law in 1974, and is now the Webster Professor of Labor Law.
Nolan has published eight books and dozens of articles. Among other things, he is about to publish a second edition of "Labor and Employment Arbitration in a Nutshell."
He serves on the labor arbitration panels of the American Arbitration Association and the Federal Mediation and Conciliation Service, as well as many private panels. He has been a member of the National Academy of Arbitrators since 1985. He has served as a member of the Academy's Board of Governors from 1993-96, chair of the Southeastern Region from 1998-2001, Vice President in 2001-03, and President-Elect in 2005-06.
Hospital must fire 73 nurses says arbitrator
May 25, 2006 by Ross Runkel at LawMemo
The collective bargaining agreement between a hospital and its nurses union contained a standard "union security" clause. Individual nurses were required to pay dues to the union. If they refused, then the hospital was obligated to discharge them.
Seventy-three nurses didn't pay. The hospital didn't fire them. So the union took the matter to arbitration.
The arbitrator ordered the hospital to fire the nurses, as the contract required. He also ordered the hospital to pay the nurses' overdue fees and dues.
The hospital refused to implement the award, so the union took off in two directions:
NLRB unfair labor practice
The NLRB ruled that it was an unfair labor practice for the hospital to refuse to fire the nurses. The hospital argued that firing the nurses would violate public policy. The 8th Circuit enforced the NLRB decision, finding that there was no statute forbidding a discharge of nurses on the ground that they had not paid union dues, and finding that state law did not require the hospital to maintain any specific number of nurses on its staff. St. John's Mercy Health Systems v. NLRB (8th Cir 02/01/2006).
Suit to enforce the award
The 8th Circuit again got this case when the union sued to enforce the award. Applying standard analysis to the review of an arbitrator's award, the court enforced the award. The same public policy argument was made and rejected.
UFCW v. St. John's Mercy Health Systems (8th Cir 05/24/2006).
My view: The 8th Circuit got it right both times. A contract is a contract.
Florida Arbitration Law . com
May 23, 2006 by Ross Runkel at LawMemo
A hearty welcome to Florida Arbitration Law . com, an interesting new blog devoted to discussion of
enforcement and issues in arbitration.
The blog started last month and has a had a steady outpouring of posts.
The title sounds like quite a narrow niche. I think that's good. It will allow the authors to concentrate on something they already know a lot about, and will enable them to continue learning even more.
Why Florida arbitration law? According to the authors, the Florida courts have been especially active in deciding cases dealing with the enforcement of pre-dispute arbitration clauses, and with other details related to the law of arbitration.
At the same time, the blog will not be limited to Florida law. The authors promise to keep us abreast of what's going on all over the country.
I'm especially happy to have this new resource. My blog has its focus on arbitration in the field of employment law and labor law. Although I often venture outside that narrow band, Florida Arbitration Law . com has already demonstrated that it will be covering cases involving everything that has to do with arbitration.
Assisting with the blog are Allison S. Bernstein (right) and Stafford N. Sheely.
Class action waiver goes to California Supreme Court
May 18, 2006 by Ross Runkel at LawMemo
Will a court enforce an arbitration class-action waiver in a case arising under wage and hour statutes? The California Supreme Court will decide that question.
In Gentry v. Superior Court (California Ct App 01/19/2006) a lower court held that a class action waiver could be enforced. The California Supreme Court said it would review the Gentry case. [Press release]
The uncertainty arises because the decision in Discover Bank v. Superior Court 36 Cal. 4th 148 (2005), which held such a clause to be unconscionable in a case involving credit card holders whose individual claims involved small amounts of money.
Gentry sued the employer in a putative class action, asserting claims for violations of state statutes. The claims arose from the employer's alleged misclassification of Gentry and others as "exempt" managerial or executive employees not entitled to overtime pay. The trial court granted the employer's petition to compel arbitration pursuant to the employer's arbitration agreement. Since the agreement contained a provision waiving Gentry's right to pursue a class action, the trial court ordered Gentry to arbitrate on an individual basis.
On remand from the California Supreme Court for reconsideration in light of Discover Bank v. Superior Court 36 Cal. 4th 148 (2005), the court concluded that the class action waiver was enforceable.
The court determined that the class action provision was
- not procedurally unconscionable because Gentry was given 30 days within which to opt out of the arbitration agreement
- not substantively unconscionable because it didn't fit the type of facts involved in the Discover Bank case. In Discover Bank the waiver clause was "found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages," and it was "alleged that the party with the superior bargaining power as carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money ...."
The reasoning in Discover Bank was extremely narrow. It would need to be expanded in order for the Gentry case to fit.
#5 of 5 - Kristian v. Comcast Corp - discovery limitations
May 02, 2006 by Ross Runkel at LawMemo
In Kristian v. Comcast Corp (1st Cir 04/20/2006) the court ordered arbitration even though the arbitration agreement provided:
Moreover, participating in arbitration may result in limited discovery.
Kristian was an antitrust case, but the court's ruling will be equally applicable in employment cases. This exact issue was resolved by the US Supreme Court in Gilmer v. Interstate/Johnson Lane, 500 US 20 (1991).
This is #5 in a series of 5 on the Kristian case.
Others in this series:
- #4 of 5 - Kristian v. Comcast Corp - attorney fees and costs
- #3 of 5 - Kristian v. Comcast Corp - limits on damages in arbitration
- #2 of 5 - Kristian v. Comcast Corp - limitation period
- #1 of 5 - Kristian v. Comcast Corp - class action arbitration
- Overview of the Kristian case
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