Marilyn Teitelbaum: I think I have the best of all worlds because I can read these great papers, without having to prepare one of my own, and like all lawyers I like to talk. So, I can share my views, that sometimes diverge from both of the views just presented, particularly the view from the management perspective.
In one part of Ted St. Antoine’s paper that was not discussed with you today, he says that the external law question may be a “tempest in a tea pot.” My words would be similar—“much ado about nothing.” I think there is a fairly easy way to deal with the problem. I, as representative of “the union,” used to be the one that was always trying to bring in external law. I still do that, but now I do it in a different way. I agree that the arbitrator’s authority comes from the contract and I try to make things easier for the arbitrators by not asking them to decide external law as such. But, if I want the law to be considered, I word the issue in a way that I can argue external law under the contract. For example, if it’s an NLRA violation, I may define the issue as, “Did the employer violate the collective bargaining agreement by unilaterally changing the terms and conditions of employment?” Or if it’s a discharge case involving sex or race discrimination, “Did the employer violate the just cause clause of the contract by discharging the grievant because of her sex.”
Publication Information & Recommended Citation
St. Antoine, Theodore J., co-author. "A Commentary on the External Law Papers." M. Teitelbaum and R. Vercruysse, co-authors. In Arbitration 2004: Proceedings of the Fifty-Sixth Annual Meeting of the National Academy of Arbitrators, by The National Academy of Arbitrators; 216-27. Washington, D.C.: BNA Books, 2005