Thirty-seven years ago Bernie Meltzer and the late Bob Howlett squared off at our annual meeting in a classic confrontation on an issue that refuses to die. What should an arbitrator do when there is a seemingly irreconcilable conflict between a provision of a collective bargaining agreement and the dictates of external law? Professor Meltzer was the hard-boiled logician. Arbitrators' proper domain is the parties' contract, said he, and we "should respect the agreement and ignore the law" when the two diverge. Howlett took the softer, more accomodating approach. He reasoned that "every agreement incorporates all applicable law" and so arbitrators "should render decisin ... based on both contract language and law." A year later Dick Mittenthal joined the fray, along with this interloper. Dick preferred to look on the bright, practical side and not follow either Meltzer or Howlett to their rigidly logical conclusions. Staking out a "middle ground," he would allow an arbitral award to "permit conduct forbidden by law but ... not require conduct forbidden by law." After paying all due respect to Mittenthal's thoughtful analysis, neither Meltzer nor Howlett budged an inch from his original position. My contribution as discussant was to side with Meltzer's hard-boiled stance, and to give priority to the contract rather than to the law. This paper is going to discuss what a cross-section of today's Academy members think about this persisting problem. As we shall see, they tend to accept the Meltzer/St. Antoin thesis in theory - but when the going gets tough, most of them move over into Dick Mittenthal's corner, if not Bob Howlett's. If I must declare a winner in this 40-year marathon, I believe it is Dick who gets the palm for the most widely accepted compromise solution. Before setting forth the results of my little survey, however, I shall briefly set forth my reasons for supporting the hard-line Meltzer position.
Publication Information & Recommended Citation
St. Antoine, Theodore J. "External Law in Arbitration: Hard-Boiled, Soft-Boiled, and Sunny-Side Up." In Proceedings of the Fifty-Seventh Annual Meeting of the National Academy of Arbitrators, by National Academy of Arbitrators; 185-201. Washington, D.C.: BNA Books, 2004.