Wednesday, February 15, 2012
Michael Z. Green (Texas Wesleyan) has just posted on SSRN his article (forthcoming Indiana L.J. 2012) Reading Ricci and Pyett to Provide Racial Justice Through Union Arbitration. Here's the abstract:
Despite a longstanding strategy employed by labor unions of staying out of the handling of statutory employment claims, this article suggests a framework and a rationale for unions to embrace arbitration of race discrimination disputes by analyzing the results from two key 2010 Supreme Court decisions, Ricci v. DiStefano and 14 Penn Plaza v. Pyett. In reviewing the statutory employment discrimination claims involved and comparing the actions of the union representing the firefighters in the Ricci case with the actions of the union representing the office security workers in Pyett, the article explains the difficulties faced by unions in taking the appropriate action to resolve these disputes while also identifying an arbitration process that will address the concerns of all the stakeholders. In applying interest-convergence analysis, the article proposes a unique approach of using arbitration to merge the interests of unions in fairly representing all employees without conflicts about choices related to the dispute resolution forum, the interests of employers in having a single efficient forum to resolve these disputes, and the interests of employees of color in having a fair forum with effective representation by their union to obtain a satisfactory resolution of their statutory discrimination claims.