As indicated by Professor Morris's thorough historical survey, arbitration has gone almost the whole distance from being an outcast of the law to being a darling of the law. Arbitration-the use of impartial outsiders selected by private parties themselves to resolve a dispute between them-was regarded by the early common law judges as an attempt to usurp the courts' own function. For a long time in both England and America, the courts would generally not enforce an executory agreement to arbitrate. A judicial remedy would be available only if a party was refusing to comply with an award that had actually been issued. Eventually, either by passing statutes or by modifying the common law, many states in this country made executory agreements to arbitrate legally enforceable.
The arbitration of labor disputes between unions and employers received its biggest boost during the Second World War. The National War Labor Board was responsible for setting the terms of contracts when the parties themselves could not agree, and the Board often included arbitration clauses as part of the imposed package. By the mid-1940s, arbitration clauses were found in 30 percent to 40 percent of all labor contracts, an increase from only about 10 percent in the 1930s. Right now, as Professor Morris has noted, about 95 percent of the major collective bargaining agreements in this country provide for final and binding arbitration as the last step in the grievance procedure.
Something like 50,000 arbitration cases take place annually in the United States. According to figures that are now a few years old, only a couple hundred of those cases wound up in litigation in the courts. So the vast majority of arbitrations do not require judicial intervention; they are handled voluntarily by the parties themselves. But of course the law provides a framework for the persons administering the arbitration system, and it is there as a last resort if something goes wrong with the voluntary process. Moreover, my impression is that in recent years, unfortunately, there has been an increasing tendency to challenge the finality of arbitral awards in the courts.
In the eyes of many industrial relations experts, the grievance and arbitration procedure, and the freedom from arbitrary treatment that it ensures for American working people, is the greatest single contribution of collective bargaining in this country-even more important than the economic gains it has achieved for employees.
St. Antoine, Theodore J. "The Legal Framework of Labor Arbitration in the Private Sector." In Labor Arbitration: A Practical Guide for Advocates, edited by M. Zimny et al. Washington, D.C.: Bureau of National Affairs, 1990.