109 see martin 670 ne2d at 124142 if the collective

109
See Martin , 670 N.E.2d at 1241–42. If the collective bargaining agreement is
a personal service contract, the arbitration provision contained in that contract may
not be assignable based upon contractual principles that prohibit such assignments.
For a discussion of these contractual principles, see supra notes 100–02 and
accompanying text.

CP_RUBINSTEIN 4/6/2007 2:48:15 PM
2007] ASSIGNMENT OF LABOR ARBITRATION 69
under the collective bargaining agreement.
110
An arbitral
interpretation that employees may not come into work late on
election day, for example, may affect the rights of other
employees, yet the individual grievant does not represent other
employees.
111
This concern, however, needs to be understood in
context. Specifically, the union consented to allowing that
individual to arbitrate a dispute that might affect other
employees. Thus, if the union is concerned about creating
precedent, it does not have to agree to the assignment.
C. The Need to Protect the Employer
The public policy expressed in Padovano and Dillman was
the protection of employer rights. If a union did not want to go
forward with arbitration, these courts were concerned that
allowing an assignment would saddle an employer with having to
defend cases that lacked merit. While there certainly is some
truth to this proposition, as noted above, there may be times
when an individual prefers his own representative for reasons
that have nothing to do with the merits of the underlying case.
112
If the union refuses to arbitrate, however, that employee
might file a duty of fair representation case against his or her
union, employer, or both.
113
Generally, it is the employer who
has the deep pocket, and for that reason it is typically named as
a party in duty of fair representation litigation.
114
If the matter
is in litigation, the employer will likely have to litigate the breach
of contract issue in the context of the hybrid duty of fair
representation claim.
115
If this occurs, the employer will be
110
Unlike courts, which are bound by other judicial decisions under the doctrine
of stare decisis , labor arbitrators are not bound by decisions of other arbitrators. See
D
ISCIPLINE AND
D
ISCHARGE IN
A
RBITRATION
486–88 (Norman Brand ed., 1998);
F
RANK
E
LKOURI
& E
DNA
A. E
LKOURI
, H
OW
A
RBITRATION
W
ORKS
574–76 (Alan M.
Ruben ed., 6th ed. 2003). A well-reasoned prior arbitration decision may be
persuasive authority, but it is not controlling. See E
LKOURI
& E
LKOURI
, supra , at
577.
111
Rather, the union is the exclusive representative of employees. See supra
notes 22–25 and accompanying text (discussing the exclusivity principle).
112
See supra notes 73, 82, 87.
113
See supra Part I (outlining the history and application of the duty of fair
representation).
114
See supra note 35.
115
Duty of fair representation claims are hybrid causes of action. The claim
against the employer is for breach of contract (the collective bargaining agreement)
and the claim against the union involves breach of duty. See supra notes 34–35 and