Title: Judicial Review of Teacher-School Board Grievance Arbitration: An Empirical Analysis
Abstract: Although not at all universal, collective bargaining is authorized for public school teachers in approximately 35 states, with remaining state laws either silent or prohibitive.1 The majority of these 35 states include grievance procedures as mandatory subject of bargaining.2 Yet, despite its importance as culminating, binding, and third-party step in grievance process, teacher-board arbitration has received very limited empirical attention.3This article provides an empirical analysis of published and unpublished court decisions that reviewed grievance arbitration in context of teacher-board collective bargaining agreements (CBAs). The case coverage for analysis is for ten-year period from August 1, 2005 to July 31, 2015. The two overlapping issues are (1) arbitrability, which usually arises but not uniformly during pre-arbitration phase (i.e., prior to hearing),4 and (2) vacatur, which arises during postarbitration phase (i.e., after award).5The article follows a traditional organization for empirical legal scholarship. The first part provides reader with a brief overview of evolving legal framework. The second part reviews applicable research literature to date. The third part summarizes method and results of empirical analysis. Finally, fourth part discusses results with particular attention to their practical significance and recommendations for follow-up research.I. EVOLVING LEGAL FRAMEWORKThe applicable posture and standards for judicial review of grievance arbitration awards are result of three successive primary frameworks. Serving only as background for specifically applicable context of teacher-board grievance arbitration,6 first two frameworks are Federal Arbitration Act (FAA or Act) of 1925 and Steelworkers Trilogy of Supreme Court decisions in I960.7 The third and culminating framework consists of state laws and court decisions specific to judicial review of teacher-board grievance arbitration.A. Federal Arbitration ActOriginally intended primarily for commercial and maritime contexts,8 FAA established framework for a broad-based judicial receptivity to grievance arbitration.9 In addition to establishing enforceability of written agreements for such arbitration,10 Act authorizes judicial vacatur for limited reasons largely concerning arbitration process.11 The only one specific to product-the award, or written arbitration decision-focuses on alternatives of exceeding or imperfectly executing arbitral authority.12 Moreover, express exclusion for the merits,13 along with Act's legislative history,14 reflect an intent for restrictive judicial review.15B. Steelworkers TrilogyAimed instead at collective bargaining context generally referred to as labor rather than commercial arbitration and doing so primarily as a matter of common rather than statutory law,16 U.S. Supreme Court issued three companion decisions 35 years later that similarly provided for deferential judicial review. In this Trilogy, Court specifically addressed separable, but overlapping, issues of arbitrability and vacatur. Providing a broad presumption in favor of substantive arbitrability,17 Court prescribed a positive assurance standard in United Steelworkers v. Warrior & Gulf Navigation Company.(TM) Conversely providing a restrictive posture for vacatur, Court established, in United Steelworkers v. Enterprise Wheel & Car Corporation, an essence test19 that is unmistakably deferential.20 The remaining decision in Trilogy, while focused on threshold arbitrability issue, served as an over-arching reminder of judicial deference to what parties had collectively bargained.21C. Teacher-Board ContextInasmuch as teacher-board grievance arbitration is a matter of public employees collectively bargaining under state law22 rather than private employees under individual or collective contracts under FAA or other federal legislation,23 foregoing two frameworks serve only indirectly for applicable judicial standards for arbitrability and vacatur. …
Publication Year: 2016
Publication Date: 2016-04-01
Language: en
Type: article
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