MITCHELL H. RUBINSTEIN, New York Law School, St. John's University - School of Law
Email: professorrubinstein@gmail.com

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."

This Article makes two proposals to reform duty of fair representation jurisprudence. First, this Article posits that putative plaintiffs should be required to have their claims adjudicated before internal union review tribunals as opposed to courts. This internal tribunal system, if procedurally and substantively fair, would provide unions with a complete defense to duty of fair representation claims. This would move most duty of fair representation disputes from the ex-post stage (after a court dispute has arisen) to the ex-ante stage (before a court dispute has arisen) and reduce unnecessary litigation. Second, this Article argues that the current system needs to be "tweaked" to return to the original Vaca v. Sipes, 386 U.S. 171 (1967), intent of utilizing rearbitration as a remedy, as distinguished from money damages, when a breach of the duty of fair representation is found.

MICHAEL N. WIDENER, Bonnett, Fairbourn, Friedman & Balint PC
Email: mnwidener@gmail.com

Animal activists and animal enterprise managers share little common ground debating science and values. Activists are frustrated with the pace of improvements in animal welfare. Enterprise managers tire of activists’ increasingly threatening, urban-guerilla tactics. Meanwhile, legislation is ineffective to bring meaningful improvements to animal treatment or to stop activist civil disobedience-driven acts of property damage and public vilification of perceived animal 'enemies.' Lawsuits filed to sanction a camp’s behavior tax patience and resources on both sides. Violence against persons appears imminent between the factions.

This essay advocates implementing collective bargaining processes along certain animal enterprise sector lines to engage enterprise management with activist representatives to adopt animal labor accords. Animal exploitation in business renders sentient creatures 'workers' in laboratories, zoos and aquaria and food production, among other environments. Labor-management negotiations leading to improved animal welfare conditions should imitate the most efficient and timely processes that periodic union bargaining sessions use in setting human labor protocols. This essay further describes existing sources for adopting baseline standards of animal treatment in their various work environments, and argues that collective bargaining surpasses adjudicating or legislating for improving standards of animal welfare, whether in American agri-business, amusement or research-based enterprises.