Originally from Dispute Resolution Journal

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It is not uncommon for one or both parties at labor arbitration, more
often the union but sometimes the employer, to have a representative
who is not a lawyer. For the union, it may well be a full-time staff
member with various duties in support of several locals. For the
company, it may be a member of the human resources staff.

Does this practice violate state legal codes that define the practice
of law and prohibit individuals engage in it if they are not licensed as
an attorney? If so, the opposing side has the opportunity to raise a
challenge before or after the arbitration in terms of arbitrability,
and/or vacatur. Even without such a challenge, the opposing side or
members of the state bar may initiate prosecution to enforce the
integrity of their profession as a protection for the public.

The purpose of this article is to address this question via an
impartial, concise, and systematic analysis of the pertinent law. The
specific scope of the answer is limited to grievance arbitration under a
collective bargaining agreement. Thus, it does not extend to other
forms of arbitration, such as non-unionized employment arbitration
and securities arbitration. Similarly, the scope is limited to nonattorney
representation exclusive of other related issues, such as
whether arbitrators (or mediators) who are not attorneys or, being
represented by out-of-state attorneys, constitutes unauthorized
practice of law.

I. LABOR ARBITRATION: LEGAL BACKDROP AND
REPRESENTATION PRACTICE

The legal context and character of labor arbitration has gradually
and cumulatively changed during the modern era, which started in
1960. Yet the practice of non-attorney representation has continued
at a notable level. This backdrop sets the stage for the intersecting
issue of unauthorized practice of law.