Tuesday, April 14, 2009
Mitchell Rubinstein (Adjunct Prof Blog, adjunct at St. John's & NYLS) has just posted on SSRN his article (forthcoming 42 Mich. J. L. Ref.) Duty of Fair Representation Jurisprudential Reform: The Need to Adjudicate Disputes in Internal Union Review Tribunals and the Forgotten Remedy of Re-Arbitration. Here's the abstract:
This Article makes two proposals to reform duty of fair representation jurisprudence. First, this Article posits that putative plaintiffs should be required to have their claims adjudicated before internal union review tribunals as opposed to courts. This internal tribunal system, if procedurally and substantively fair, would provide unions with a complete defense to duty of fair representation claims. This would move most duty of fair representation disputes from the ex-post stage (after a court dispute has arisen) to the ex-ante stage (before a court dispute has arisen) and reduce unnecessary litigation. Second, this Article argues that the current system needs to be “tweaked” to return to the original Vaca v. Sipes, 386 U.S. 171 (1967), intent of utilizing rearbitration as a remedy, as distinguished from money damages, when a breach of the duty of fair representation is found.
This is a very timely article, given Justice Thomas's recent statement in 14 Penn Plaza that any ills caused by union arbitration of discrimination grievances are solved by the availability of DFR suits.