Alghanim & Sons v. Toys "R" Us decision now available:   Request 297148    (reported last issue)

ABA to Develop Model Law for Regulating Mediation

Employer's Enjoining Union's Strike to Pursue Arbitration of Dispute Upheld CBA Provisions Displace NY Statute Procedures Texas Court Finds Parties to Custom Home Agreement Intended to Replace    Arbitration Clause with Provision Allowing Suit Florida Court Reverses Trial Court's Referral of Question of Arbitrability    to Arbitration Panel Court Mandates Arbitration of Employee's Harassment and Discrimination    Claim

Web site for the Seventh Annual Northwest ADR Conference (Seattle, April 24-25, 1997):   http://www.willamette.edu/dis-res/nwadr/

ABA to Develop Model Law for Regulating Mediation     

The ABA Section of Dispute Resolution will lead a three-year effort to develop a simplified national uniform standard on mediation.  The    project will be co-chaired by Roberta Cooper Ramo (former ABA president)    and Ohio Supreme Court Chief Justice Thomas J. Moyer (former chair    of the National Conference of Chief Justices), and will proceed in four    phases.  The first two phases involve research:  reviewing the more than    2,000 state and federal mediation statutes and court rules, and defining    the issues affecting mediation (such as qualifications of mediators and    confidentiality).  The third phase will involve the actual drafting of    the model law, and will begin in 1998.  Finally, the proposed law will be    presented for consideration to the Section of Dispute Resolution's    Council in the year 2,000, and then on to the ABA House of Delegates and    the National Conference of Commissioners on Uniform State Laws.  The    project welcomes ideas and suggestions, which can be directed to Richard    C. Reuben of the Stanford Center on Conflict and Negotiation.  He can be    reached by e-mail at richardr@leland.stanford.edu.

Employer's Enjoining Union's Strike to Pursue Arbitration of Dispute Upheld Kansas City Southern Transport Co., Inc. v. Teamsters Local Union #41 (8th Cir 10/2/97)

The dispute arose after plaintiff Kansas City Southern Railway Co.    terminated use of plaintiff Transport's facilities in Kansas City,    resulting in Transport's laying off 17 employees represented by    Teamsters, who planned a strike in response to the layoffs. Teamsters    appealed from a District Court ruling enjoining  the strike and    compelling arbitration (pending an evidentiary hearing).  The Circuit    Court upheld the District Court's injunction, and found that the dispute    should be settled by arbitration, provided that the District Court    concludes after a hearing that plaintiffs Transport and Railway are a    single employer, thus binding the Union to arbitrate with the latter.    [Full Decision:  Request 297151]

CBA Provisions Displace NY Statute Procedures Oliver Grandi v. New York City Transit Authority (ED NY 9/19/97)

     Plaintiff, a former New York City Transit Authority (NYCTA) employee,    brought this action alleging a violation of his right to due process as    protected by the Fourteenth Amendment.  He claims that NYCTA was required    by New York Civil Service Law  sec. 72 to provide written notice or a    hearing before placing him on involuntary medical leave.  This court    found that the collective bargaining agreement between the Transport    Workers Union and the NYCTA clearly replaced the provisions of sec. 72.    The court stated that even if plaintiff had a due process right to the    sec. 72 scheme, his union waived these rights in the CBA with defendant.    Plaintiff argued that the procedures set forth in sec. 72 may not be    modified or replaced by a CBA without explicit statutory authorization.    This court disagreed, stating that New York law does not require an    affirmative grant of statutory authority for a CBA to displace the    procedures of sec 72.    [Full Decision Not Available Online: 1997 WL 594714]

Texas Court Finds Parties to Custom Home Agreement Intended to Replace Arbitration Clause with Provision Allowing Suit Ward v. McFarland (Tex App - Austin 9/18/97)(unpublished opinion)

The court affirmed the trial court order denying Ward's motion to compel    arbitration.  McFarland and Ward entered into a contract whereby    McFarland purchased a custom cedar home kit.  This contract contained a    clause requiring the parties to submit all conflicts to arbitration. The    parties entered into a second agreement, which did not include an    arbitration clause, but instead provided that in the event of Ward's    failure to consummate the contract for any reason, McFarland may enforce    specific performance or may bring suit for damages against Ward.    McFarland alleged that the parties intended the second contract to    replace the first, and the court said that Ward's failure to counter this    evidence resulted in Ward's failure to meet the burden of proof that a    valid agreement to arbitrate existed.    [Full Decision Not Available Online:  1997 WL 576473]

Florida Court Reverses Trial Court's Referral of Question of Arbitrability to Arbitration Panel Romano v. Goodlette Office Park, Ltd. (Fla App 2nd Dist 9/19/97) (unpublished opinion)

The court found that the trial court erred when it referred the question    of arbitrability to an arbitration panel.  The court relied on the    decision of the U.S. Supreme Court in First Options of Chicago, Inc. v.    Kaplan, 514 U.S. 938 (1995), in which the Court held that    trial courts should not assume the parties intended questions of    arbitrability to be determined by arbitration, even where the contract is    silent or ambiguity exists.  The Court of Appeal said the arbitrability    question is one for the trial court to decide.    [Full Decision Not Available Online:  1997 WL 577728]

Court Mandates Arbitration of Employee's Harassment and Discrimination Claim Freeman v. Minolta Business Systems, Inc. (La App  2nd Cir 9/24/97) (unpublished opinion)

This case concerns whether an employee's claims of sexual harassment,    discrimination, retaliation and respondeat superior are subject to    arbitration under the parties' employment agreement.  The Court of Appeal    of Louisiana ordered that the matter be arbitrated, and thus overturned    the trial court order which denied the defendants' motion to compel    arbitration.  The Court of Appeal held that Freeman's claims fell within    the scope of the parties' agreement to arbitrate because they constituted    allegations that Minolta ". . . was in violation of [a] term or condition    of  [Freeman's] employment, whether found in fact or in law[.]"    [Full Decision Not Available Online:  1997 WL 59438]

Full text also on our web page: http://www.willamette.edu/dis-res/