Arbitration versus Litigation

The terms ‘arbitration’ and ‘litigation’ are often paired off against each other. When or if a dispute arises, we recommend knowing the general differences and similarities between these procedures.  

Litigation is a lawsuit filed in a court of law. People may be self-represented, but more often, attorneys represent their clients in moving through the phases of litigation. Phases include filing a complaint (or petition, depending on the court and type of issues involved), answer, discovery, motions, and may eventually involve a trial to a judge or jury.

 Arbitration is like litigation in that it is a process to resolve a dispute between two or more parties. It is a private means of resolving disputes. Arbitration may occur non-publicly. It usually takes place when parties have agreed in advance, through a written contract, to arbitrate future disputes on a specified subject matter, in lieu of bringing a lawsuit in court. The arbitrators are paid by the parties to assist in resolving the matter. Pros of arbitration can be that it moves more quickly, can be less expensive, and results in a final resolution earlier.  A major con for some is that there is no means of appeal or review after an arbitrator enters an award. The exception to that would require showing deceit or fraud or major errors in the fairness of the process, within very limited circumstances.

 More and more, large employers may require new employees to enter arbitration agreements in the onboarding process at start of employment. They will often cover possible future employment-related disputes. Employees should think carefully about rights they give up doing so. Employers should think carefully about how to draft these kinds of agreements and about how to present them to employees for their review and agreement. Courts and policy makers in our legislatures continue to consider how, whether, and to what extent these kinds of arbitration contracts should be enforced.

 If you are faced with arbitration in lieu of litigation, or are considering entering an agreement to arbitrate claims, or would like to craft a valid arbitration clause for your business, an attorney may be able to help. An experienced attorney can ensure your rights are fully addressed and you are fully informed about what you give up and what you gain in arbitration versus litigation.

 Bonnie Boryca and Erickson | Sederstrom, PC’s team of attorneys are well-versed in these issues. 

Duty to Bargain on Residency of Officer in CBA between Police Union and City of York?

In Fraternal Order of Police v. City of York, the Nebraska Supreme Court considered whether the City of York’s failure to reach an agreement with the Fraternal Order of Police (FOP) regarding a requirement of residency in York County to obtain a promotion at the York Police Department was a prohibited labor practice.  309 Neb. 359 (2021).  The Court found that although it was not specifically mentioned in the collective bargaining agreement, the residency requirement was within the ‘compass’ of the agreement, and therefore no further bargaining on the issue was needed. Id. at 374.

The FOP is a labor organization/union that serves the purpose of dealing with public employers (here, the City of York Police Department) concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.  Id. at 361.  On January 9, 2019, the FOP entered a collective bargaining agreement with the City of York that gave the York Police Department the right to determine, establish, and implement policies for employee promotions.  Id. at 362.  The agreement made no specific mention of the Department’s right to require officers to reside in York County to be promoted.  Id.

After the Department directed an officer to sign an agreement requiring him to obtain residency in York County upon being promoted to sergeant, the FOP claimed such a requirement was not bargained for in their agreement with the City of York.  Id. at 364. The union then demanded bargaining of the residency requirement, alleging that it was a mandatory subject of bargaining under the Industrial Relations Act (IRA).  Id.  The City declined to bargain, and the FOP filed their petition before Nebraska’s Commission of Industrial Relations (CIR).  Id. at 366. 

At trial, the parties stipulated that the residency requirement for promotion was a mandatory subject of bargaining.  Id. at 363.  However, the CIR dismissed the claim holding that the matter was addressed by the collective bargaining agreement between the City of York and the FOP, and therefore the parties had no further obligation to bargain the issue.  Id. at 369.

The Nebraska Supreme Court affirmed the CIR’s decision, further noting that while broad and vague statements that employers “may do whatever they please” are insufficient to establish that all topics are covered by a collective bargaining agreement, such an agreement does not need to specifically mention every subject in order for it to be covered by the agreement.  Id. at 373.

This article was drafted by Erickson Sederstrom’s law clerk, Joe Johnson, with assistance and supervision of our employment law attorney Bonnie M. Boryca. She can be reached at 402-397-2200 or boryca@eslaw.com.