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109 see martin 670 ne2d at 124142 if the collective

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109See Martin, 670 N.E.2d at 1241–42. If the collective bargaining agreement isa personal service contract, the arbitration provision contained in that contract maynot be assignable based upon contractual principles that prohibit such assignments.For a discussion of these contractual principles, seesupranotes 100–02 andaccompanying text.
CP_RUBINSTEIN4/6/20072:48:15PM2007]ASSIGNMENT OF LABOR ARBITRATION69under the collective bargaining agreement.110An arbitralinterpretation that employees may not come into work late onelection day, for example, may affect the rights of otheremployees, yet the individual grievant does not represent otheremployees.111This concern, however, needs to be understood incontext.Specifically, the union consented to allowing thatindividual to arbitrate a dispute that might affect otheremployees.Thus, if the union is concerned about creatingprecedent, it does not have to agree to the assignment.C.The Need to Protect the EmployerThe public policy expressed inPadovanoandDillmanwasthe protection of employer rights. If a union did not want to goforward with arbitration, these courts were concerned thatallowing an assignment would saddle an employer with having todefend cases that lacked merit.While there certainly is sometruth to this proposition, as noted above, there may be timeswhen an individual prefers his own representative for reasonsthat have nothing to do with the merits of the underlying case.112If the union refuses to arbitrate, however, that employeemight file a duty of fair representation case against his or herunion, employer, or both.113Generally, it is the employer whohas the deep pocket, and for that reason it is typically named asa party in duty of fair representation litigation.114If the matteris in litigation, the employer will likely have to litigate the breachof contract issue in the context of the hybrid duty of fairrepresentation claim.115If this occurs, the employer will be110Unlike courts, which are bound by other judicial decisions under the doctrineofstare decisis, labor arbitrators are not bound by decisions of other arbitrators.SeeDISCIPLINE ANDDISCHARGE INARBITRATION486–88 (Norman Brand ed., 1998);FRANKELKOURI&EDNAA.ELKOURI,HOWARBITRATIONWORKS574–76 (Alan M.Ruben ed., 6th ed. 2003). A well-reasoned prior arbitration decision may bepersuasive authority, but it is not controlling.SeeELKOURI&ELKOURI,supra, at577.111Rather, the union is the exclusive representative of employees.See supranotes 22–25 and accompanying text (discussing the exclusivity principle).112See supranotes 73, 82, 87.113SeesupraPart I (outlining the history and application of the duty of fairrepresentation).114See supranote 35.115Duty of fair representation claims are hybrid causes of action. The claimagainst the employer is for breach of contract (the collective bargaining agreement)and the claim against the union involves breach of duty.See supranotes 34–35 and

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Term
Fall
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Trade union, National Labor Relations Act, Civil Rights Act of 1964,

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