Monday, November 19, 2012

Professor Drummonds on the public policy exception to enforcement of arbitration awards

Professor Henry Drummonds has written an article analyzing the current status of the public policy exception to the enforcement of arbitration awards. He summarizes the article:

This article argues that labor union advocates, management representatives, arbitrators, and reviewing courts and labor boards sometimes misconstrue the public policy exception. Union representatives often interpret the exception too narrowly, effectively denying its existence; conversely, management lawyers often attempt to use this narrow exception to excuse a failure to prove misconduct by, or the incompetence of, the employee. For their part, arbitrators sometimes fail to give the exception proper weight in their consideration of remedies. Although arbitrators properly exercise broad remedial discretion, nothing requires a rote award of reinstatement, as distinct from other forms of relief where a contract violation is found. Arbitrators should consider a variety of other remedies including, in appropriate cases, front pay for a reasonable time in lieu of reinstatement. (footnotes omitted).

The article was triggered in part by the controversy surrounding the arbitration award reinstating Portland police officer Ron Frashour (addressed here, here, and here).

Professor Drummonds discusses the current law in both the private and public sector concerning the public policy exception to enforcement of awards, and distills  "Seven Principles"  from the case law.

The article, The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush, can be found on the Social Science Research Network (SSRN)  here.

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