Alternative Dispute Resolution

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Hello,

Interesting questions! Let's take a closer look through discussion, research and examples. Also see attached resource on ADR.

RESPONSE:

1. What type of employment disputes are most often resolved by alternative dispute resolution approaches such as mediation, negotiation, or arbitration?

"Alternative Dispute Resolution (ADR)" is the term used to describe a variety of ways of dealing with disputes, including the option of going to court. There is a broad range of dispute resolution options in ADR (http://www.settlement.org/sys/faqs_detail.asp?faq_id=4000353). In fact, ADR techniques such as mediation, negotiation, or arbitration have been used successfully in a variety of disputes involving individuals, small and large businesses, employment, the government, and the general public. ADR is becoming very popular in family law cases, in which divorce settlements, property disputes, child custody and visitation matters, and spousal and child support issues often lend themselves to an alternative and informal method of dispute resolution. Other business and employment disputes often settled by ADR include:

· Business disputes
· Consumer/merchant disputes, include questions about refunds, repairs, services, and warranties
· Employment disputes, such as interpretation of employment contracts or terminations http://www.weblocator.com/attorney/ca/law/c09.html

Other examples of the use of ADR to resolve employment disputes - Federal and state laws reflecting societal intolerance for certain workplace conduct, as well as court decisions interpreting and applying those statutes, have redefined responsible corporate practice and employee relations. Increasingly, employers and employees face workplace disputes involving:

. Alleged wrongful termination,
. Sexual harassment, or
. Discrimination based on race, color, religion, sex, national origin, age and disability (http://www.ilr.cornell.edu/alliance/resources/Guide/resolving_emp_disputes_guide.html).

When Should Disputes Be Left to the Courts to decide?

· The issue of violence itself is not something that can be mediated. The courts may provide better protection for people who have been the victim of violence or threats of violence. Further, where a power imbalance between the parties is so pronounced that it cannot be properly managed, even by an experienced mediator, the courts may be better equipped to handle the matter.
· A DR processes are generally confidential and therefore are not appropriate if one of the parties wants the issue to be publicized or wants the outcome to be seen as an example for other similar disputes.
· Where there is a need to establish precedent, where the outcome of the case could affect a great number of people or where a definite and broadly applicable solution is required, the court would be the appropriate forum to resolve the dispute (http://www.settlement.org/sys/faqs_detail.asp?faq_id=4000353).

The National Labor Relations Act also established the rights of workers to join trade unions and to bargain collectively with their employers through representatives of their own choosing. Workers were now protected from their employers and as a result union membership grew rapidly (http://www.spartacus.schoolnet.co.uk/USARnlra.htm).

2. What provisions exist in the National Labor Relations Act regarding processes for resolving disputes?

The National Labor Relations Act (NLRA) is a Federal law signed in 1935 guaranteeing workers the right to participate in unions without management reprisals. It was modified in 1947 with the passage of the Taft-Hartley Act, and modified again in 1959 by the passage of the Landrum-Griffin Act. The NLRA is also referred to as the Wagner Act. (http://www.americanrightsatwork.org/resources/glossary2.cfm). Specifically in relation to to the process of resolving labor disputes, the NLRA protects the rights of most workers in the private sector to:

a. organize labor unions,
b. to engage in collective bargaining, and
c. to take part in strikes and other forms of concerted activity in support of their demands.

The Act does not, on the other hand, cover those workers who are covered by the Railway Labor Act, agricultural employees, domestic employees, supervisors, independent contractors and some close relatives of individual employers (http://en.wikipedia.org/wiki/National_Labor_Relations_Act).The amendments enacted in Taft-Hartley added a list of prohibited actions, or "unfair labor practices", on the part of unions to the NLRA, which had previously only prohibited "unfair labor practices" committed by employers. The Taft-Hartley Act prohibited jurisdictional strikes, secondary boycotts and "common situs" picketing, closed shops, and monetary donations by unions to federal political campaigns. Union shops were heavily restricted, and states were allowed to pass "right-to-work laws" that outlawed union shops. Furthermore:

d. the executive branch of the Federal government could obtain legal strikebreaking injunctions if an impending or current strike "imperiled the national health or safety," a test that has been interpreted broadly by the courts (http://en.wikipedia.org/wiki/Taft-Hartley_Act#Closed_shops).

The Role of the National Labor Relations Board in resolving disputes:

Specifically, the act also established a federal agency for resolving disputes, the National Labor Relations Board (NLRB), who had the power to investigate and decide on charges of unfair labor practices and to conduct elections in which workers would have the opportunity to decide whether they wanted to be represented by a union hhttp://en.wikipedia.org/wiki/National_Labor_Relations_Act). Many accused the NLRB of a general pro-union and anti-employer bias, pointing to the Board's controversial decisions in such areas as employer free speech and "mixed motive" cases, in which the NLRB held that an employer violated the Act by firing an employee for anti-union reasons, even if the employee had engaged in misconduct; thus, the need for amendments.

The amendments in Taft-Hartley made sweeping changes to labor laws, some of which are in the following two paragraphs. It involved the federal courts more directly in enforcing the secondary boycott provisions of the act by giving employers the right to sue unions for damages caused by a secondary boycott, while giving the General Counsel exclusive power to seek injunctive relief against such activities. The Taft-Hartley amendments also provide for federal court jurisdiction to enforce collective bargaining agreements while imposing a number of procedural and substantive standards that unions and employers must meet before they may use employer funds to provide pensions and other employee benefits to unionized employees. With Federal government could obtain legal strikebreaking injunctions if an impending or current strike "imperiled the national health or safety," a test that has been interpreted broadly by the courts ...