NCJ Number
94687
Date Published
1979
Length
30 pages
Annotation
Public-Sector arbitration and the judicial response to it are analyzed.
Abstract
In a number of cases, courts have refused to enforce arbitration agreements or have set aside arbitration awards on the ground that some law or public policy external to the agreement precludes the public agency from delegating its authority or discretion in regard to the issue in dispute. Three trends have emerged: (1) courts are less inclined to defer to an arbitration award where a statute covering the subject matter exists, even if the statute is not deemed preemptive; (2) courts in the public sector are less tolerant than those in the private sector of awards that rely on past practice to establish obligations not expressed in the agreement; and (3) even where the arbitrator's award is based on express contract language, courts have displayed a greater propensity than in the private sector to overturn the arbitrator's interpretation. Problems posed by interest arbitration in terms of democratic-process variables are considered, and it is suggested that it appears to be the only workable and just alternative to the strike as a means of accommodating the interests of public employers and their employees. It is pointed out that interest arbitration is still in an experimental stage, and that courts should not terminate the experiment before the results can be determined. A total of 101 footnotes are provided.