The Job of the Labor Arbitrator: To Do Justice?… Or…? - Dispute Resolution Journal - Vol. 71, No. 4
Originally from Dispute Resolution Journal
Recently, I attended a gathering of a professional association of labor arbitrators. One of the hallmarks of such meetings is the often-animated give and take about the practice of the profession. Some refer to them as “war stories.” Having tried 200 labor arbitrations as first chair counsel and now having delivered Opinions and Awards in over 300 cases around the country, I always look to these exchanges as grist for what I regard as a an evolving learning experience in the work of being a better labor arbitrator. During one of these exchanges I listened as one arbitrator animatedly pressed the following statement, “My job as a labor arbitrator is to do justice!”
That comment triggered a rush of thoughts for me, including: what is my job as a labor arbitrator? While I have been doing that job for the last 23 years I have always felt that one should not hold a fixed view of their work, or indeed, life in general. This comment triggered a desire to reassess my job as an arbitrator.
Under a collective bargaining agreement (CBA), parties can agree to settle their dispute through arbitration. Arbitration allows parties “to regulate all aspects of the complicated relationship” by an “agreed-upon rule of law.” Instead of requiring parties to submit disputes to a judge who does not understand labor practices, arbitration allows parties to “[solve] the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which generally accords with the various needs and desires of the parties.” Indeed, what a labor arbitrator must consider to grant an award may be “foreign to the competence of courts.” Though the labor arbitrator must look at the words of the CBA, “the practices of the industry and the shop [are] equally a part of the collective bargaining agreement although not expressed in it.”