An Empirical Evaluation of the Adjudication of Statutory Human Rights Claims before Labour Arbitrators and Human Rights Tribunals in Ontario
Institute for Law and the Workplace
Illinois Institute of Technology
Osgoode Hall Law School<
College of Business and Economics
University of Wisconsin
Arbitral jurisdiction over external statutes – particularly human rights statutes – is of current concern in the United States and Canada. Concern exists over whether arbitral adjudication of statutory rights adequately protects or jeopardizes these worker rights.
Using empirical evidence, this study examines the handling of statutory human rights claims in labor arbitration and compare it to such claims before statutory human rights tribunals to determine whether, or to what extent, such concerns are justified.
Labor arbitration in Canada has a long history of exercising jurisdiction over statutory claims
under collective agreements and has developed a significant body of case law. Data will be collected from labour arbitration decisions involving human rights claims and Human Rights Tribunal decisions issued between 2009 and 2012 period in Ontario.
Multivariate analysis will examine whether significant differences exist between the two forums regarding:
- characteristics of complaints
- legal issues raised
- sources of law relied on
- remedies sought and awarded
- likelihood that judicial review will be sought or obtained
Existing research offers limited examination of these questions. Therefore this study will significantly contribute to the dialogue concerning the arbitration of statutory claims under collective agreements.
Study of the Extent and Causes Delay in Labor Arbitration
Kevin Banks and Richard Chaykowsi, Queen’s University and George Slotsve, Northern Illinois University
This research will examine trends over several time periods and focus on whether the mid-1990 expansion of the jurisdictional mandate of arbitrators to consider external statutes is a factor in delay. We expect the study to make a substantial contribution to our understanding of why delay occurs during the various stages of the arbitration process. This important topic has been of interest to arbitrators and the parties for decades, particularly because delay appears to be increasing for reasons that are not well understood.
The Art and Science of Arbitration
College of Labor and Employment Lawyers, Inc.
Video History Project
A unique, historical 50-minute documentary made by two-time Emmy winner Carol M. Rosenbaum. The video will focus on arbitration and feature the insight, knowledge, anecdotes and advice of distinguished arbitrators including George Nicolau, Sec. George Shultz, Arvid Anderson, James Harkless, Theodore Kheel, Frances Bairstow, Hon. Harry Edwards, Arnold Zack, Theodore St. Antoine, and Edgar A. (Ted) Jones, Jr.
A Labor Arbitration Case Study: The Suspension of Nurse Kevin
Paul Clark and Amy Dietz, Pennsylvania State University
A 60-minute instructional film on arbitration that portrays an arbitration hearing and back story with timely narrative breaks to explain the proceeding to the viewer. The film provides the viewer a real life demonstration of the arbitration process and is accompanied by a comprehensive teaching guide.
To see the film trailer: http://patterson-brandt.com/projects/LER/
Bonnie G. Bogue and Katherine J. Thomson, California Punlic Employee Relations Program
A portable handbook published in 2010 by the University of California, Berkeley for use by labor relations representatives, union representatives, and lawyers, the guide provides a breadth and depth of coverage not available elsewhere at an affordable price.
To view the Table of Contents or order the Guide: http://cper.berkeley.edu
Employment Arbitration, Labor Arbitration, and Arbitrators
Richard N. Block, Michigan State University and Hoyt Wheeler, University of South Carolina
A study of the relative frequency of labor and employment cases among arbitrators and the extent to which arbitrators are asked to mediate cases. Characteristics such as full-time and part-time practice, credential preferences, and the use of the Due Process Protocol in employment cases are examined.
An Empirical Investigation of Factors Affecting Outcomes of Discipline Arbitrations Where Work and Family Responsibilities Conflict
Martin H. Malin, Chicago-Kent College of Law and Monica Biernat, University of Kansas
An investigation of whether demographic characteristics of the grievant or the arbitrator affect the outcomes in cases where family responsibilities conflict with work responsibilities.
Do Cognitive Biases Infect Adjudication? A Study of Labor Arbitrators, 11 Penn. J. Bus. L. 175 (2008). http://works.bepress.com/cgi/viewcontent.cgi?article=1059&context=martin_malin
Political Ideology and Labor Arbitrators Decision-making in Work-Family Conflict Cases, 34 Personality & Social Psych. Bull. 888 (2008).
An Empirical Investigation of Factors Affecting Outcomes of Discipline Arbitrations Where Work and Family Responsibilities Conflict: Preliminary Results, in Arbitration 2005: The Evolving World of Work: Proceedings of the 58th Annual Meeting, National Academy of Arbitrators 132 (Stephen Befort & Paul F. Gerhardt eds. 2006). http://naarb.org/proceedings/index.asp
The Arbitration Profession in Transition – A Survey of the National Academy of Arbitrators
Michel Picher, and Ronald L. Seeber, Cornell University, David B. Lipsky, Cornell University
A survey based on written and telephone interviews with Academy members to determine the extent of their involvement in employment arbitration, as well as their attitudes toward it and the adjudication of statutory rights in the non-union setting. Additionally, the survey compiled wider information on the backgrounds and practices of members providing a baseline for the new century.
The Arbitration Profession in Transition – A Survey of the National Academy of Arbitrators, Cornell Studies in Conflict and Dispute Resolution No. 3, Cornell/PERC Institute on Conflict Resolution, Ithaca, NY (2000) http://digitalcommones.ilr.cornell.edu/icrpubs/1/
What do we really know about how labor arbitrators decide discipline and discharge cases? Testing Assumptions in a Comprehensive Empirical Study
Mario F. Bognanno, Laura J. Cooper and Stephen F. Befort
A study based on a large sample of actual arbitration decisions exploring how arbitrators decide discipline and discharge cases and why they decide them as they do.
An Empirical Study of Discipline and Discharge Arbitration: More Than We Have Ever Known [book submitted for publication].
How and Why Labor Arbitrators Decide Discipline and Discharge Cases: An Empirical Examination, in Arbitration 2007Workplace Justice for a Changing Environment, Proceedings of the 60th Annual Meeting, National Academy of Arbitrators 420 (Stephen Befort & Patrick Halter, eds. 2008). http://naarb.org/proceedings/index.asp
The following are the presentations that we have made based on our discipline and discharge arbitration study that was funded by the REF:
● University of Minnesota Law Faculty, April 2007
● NAA Annual Meeting, San Francisco, May 2007
● Minnesota Bureau of Mediation Services, May 2007
● Minnesota Labor and Employment Law Institute, November 2007
● Labor Arbitration Institute, September 2008
● Minnesota Public Employer Labor Relations Association, Feb 2009
● Federal Mediation and Conciliation Service Bi-Annual Midwest Arbitrators Symposium, Chicago, November 2010
● American Bar Association, Labor and Employment Law Section, ADR Cttee, Mid-Winter Meeting, Los Cabos, Mexico, Feb 2011
● Minnesota Bureau of Mediation Services, May 2011
● Symposium on Public Sector Collective Bargaining, American Constitution Society, Labor Law Group, and University of Richmond Law School, Richmond, Virginia, forthcoming September 2011
● NAA Fall Education Conference, Miami, forthcoming October 2011
● American Bar Association, Section of Labor and Employment Law, National Annual Conference, Seattle, forthcoming November 2011.
The Appointment of Grievance Arbitrators by State and Local Agencies,
Walter J. Gershenfeld and Nels E. Nelson, Cleveland State University
A survey or members of public labor relations agencies about the nature and extent of their grievance arbitration activity.
The Appointment of Arbitrators by State and Local Agencies, Labor Law Journal, Vol. 52, No. 4, Winter 2002, 258-6.
Subtle influences, significant effects: Understanding arbitration decision-making in order to guard against bias
Eugene Borgida, University of Minnesota, Grace Deason and Erik Girvan
Studies on the influence of potential implicit biases on arbitral decision-making using validated psychological measures to shed light on how personal belief systems influence decisions.