Document Type

Article

Publication Date

2001

Abstract

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration could fairly be considered "part and parcel of the collective bargaining process itself," and the courts were more than happy to keep hands off. When unions and employers began to make federal and state statutes part of the agenda of arbitration, however, as happened increasingly in the 1970s, it became an entirely different story. Statutory interpretation is the special province of the courts. They are not going to let some private arbitrator get away unchallenged with palpable misreadings of the legislative text.' Academics like me may think a sound argument can be made that, at least as between the initial contracting parties, arbitrators' honest mistakes of law should still receive deference in the courts much like the deference accorded their honest mistakes of fact. Yet even the proponents of this view would not allow an arbitrator to mangle an individual employee's right against race or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Closer judicial scrutiny of arbitration awards involving statutory claims was inevitable. So, the first great change in the role of arbitration was its extension into the statutory domain in the collective bargaining context Perhaps not coincidentally, the courts about this time became more and more willing to test traditional contract awards against the vaguer standard of "public policy." Then, beginning mostly in the 1980s and accelerating sharply in the 1990s, came another major development-arbitration systems established unilaterally by nonunion employers. These systems were sometimes designed to divert from the courts employee claims of "wrongful discharge" under several modifications in the traditional American doctrine ofemployment at will. Even more eagerlypromotedby employers, however, was the use of arbitration to keep statutory discrimination claims away from civil tribunals and especially juries. This Article will treat the legal and policy implications of these various procedures and standards for dispute resolution. I shall deal briefly in turn with (1) mandatory arbitration of statutory rights, (2) judicial review of arbitration awards on public-policy grounds, and (3) arbitration of claims" that there was not "good cause" for employee discharges.