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文/William B. Gould

In the meantime, absent initiatives undertaken at the state level, arbitrators and the parties who appear before them desiring Enterprise Wheel-type finality ought to provide for detailed fact-finding on the rehabilitation issue when public policy is at issue in the arbitration proceeding. In the discharge cases which have emerged frequently before and after Misco, the employer argued that the reinstatement of the worker or invalidation of the discharge would be inconsistent with public policy. Detailed fact-finding, while not required by Enterprise Wheel, could diminish substantially the increase in attacks upon and reversals of arbitration awards on public policy grounds.

No threat at informality in the arbitration process is posed by such a standard. Indeed, notwithstanding Enterprise Wheel and its acknowledgement that opinions are not required with a labor arbitration award, labor and management fully expect an opinion and a well reasoned one at that! Thus, my proposed judicial review standard would create no difficulties for the parties. To the contrary, it comports with their practices and understandings.

The arbitration process is coming to resemble the courtroom, with the undeniable and pervasive presence of lawyers, the severe cross-examination of witnesses, the writing of briefs submitted by counsel and lay advocates, and opinions filled with legal citation and discussion. These phenomena burden and contort the arbitration process, depriving it of its redeeming virtues, ie., economy, speed and informality. My proposals, however, will not have that effect, for they do not involve lawyers or legalistic proceedings. Basic findings, as a prerequisite to the deference exhibited in the cases described above, are a common sense requirement. Judicial review should be circumscribed substantially only when they are present.

Penultimately, arbitral inflexibility about the remedies that they devise frequently prompts excessive judicial review of labor arbitration awards. Arbitrators generally believe that if a violation of the collective bargaining agreement is found, then automatic reinstatement is mandated. This view parallels the position of the National Labor Relations Board in connection with its unfair labor practice jurisdiction. In my view, this remedial rigidity has prompted the Supreme Court, both in the *494 first amendment arena [FN115] and under the National Labor Relations Act, [FN116] to create more difficulties for the charging parties in proving violations of the Constitution or statute in question. [FN117] Faced with the prospect of reinstatement of an apparently undesirable or incompetent employee, the courts have responded by making the burden of proof more difficult for the plaintiff. An identical situation is occurring in connection with judicial review of labor arbitrations. The courts are reacting against the reemployment of workers whom they perceive as harmful to the employment relationship and the absence of findings which can convince them of a contrary proposition.

In 1974, acting as an arbitrator in a similar reemployment situation, I took the position that reinstatement was inappropriate. The grievant's behavior made it unlikely that she would be a good employee in the future, notwithstanding the fact that the employer had violated the collective bargaining agreement when it discharged her. [FN118] I took the position that arbitral discretion in connection with the remedy was necessary. [FN119]

Thus, where specific findings are not made with regard to the potential for rehabilitation, in their review of arbitration proceedings, the courts may properly refuse to enforce the award unless the award provides for monetary relief and not reinstatement. Where reinstatement is not ordered, but rather some other form of relief is fashioned in its place, the concerns of the court ought to diminish.

Remedial flexibility is intrinsically desirable and arbitrators ought to exercise it more often. [FN120] Such a position would fit neatly with judicial concerns in the public policy arena. Careful arbitral remedies should deter excessive judicial intervention, and thus avoid the untoward results in the arbitration arena that earlier befell workers attempting to prove violations of the NLRA and the Constitution.

Finally, where rehabilitation is not relevant and where the employee has engaged in criminal behavior, the Second Circuit's view in Otis Elevator, [FN121] that the criminal prosecution may have implemented the public policy involved, is appropriate. There will be circumstances, however, where arbitral findings are relevant and necessary, that is, with regard to the implementation of policy through criminal prosecution, and the arbitrator's*495 basis for believing that reinstatement is appropriate. The latter finding should relate to the actual behavior of employees. However, arbitrators often simply refer to seniority and length of service when setting aside a discharge and concluding that a suspension or some other form of discipline is the appropriate remedy. This approach should not be tolerated by the courts when confronted with public policy issues.


VI. Conclusion


In retirerating its adherence to the Steelworkers Trilogy principles, the Court's opinions in AT & T and Misco have taken us part of the way up cause the Supreme Court cannot resolve the inevitable tension which arises in a system where federal labor policy is riding two separate horses which pull the courts in opposite directions. Even considering institutional limits, conflicting federal labor policy was not articulated and accommodated adequately in either AT & T or Misco.

AT & T properly required some kind of preliminary judicial examination of the arbitrability issue, but it ought to have left the way open for arbitral re-examination of the issue. This would guard against judicial involvement in the substantive merits of the grievance which is at issue-a basic concern of the Court in Steelworkers Trilogy. It would also permit the institution that is more expert than the judiciary to re-examine the case, a role that is particularly significant given the limited judicial consideration of the arbitrability issue under either Steelworkers Trilogy or AT & T. A more sensible balance should be fashioned than that promoted by the Court in AT & T. The view that, absent explicit language, arbitrability is not within the province of arbitrators, simply flies in the face of industrial relations experience in this country. Justice White's hostility toward arbitral resolution of arbitrability issues has no warrant or justification.

Misco, on the other hand, is a step in the right direction. The problem is that the Court's holding in Justice White's opinion is not sufficiently clear or ambitious. That is why a large number of circuits have gone on approving or providing for the vacation of arbitral awards, on both public policy and contract construction grounds, despite the Court's soothing language about the need for arbitral finality. Some involvement of law is necessary. If a revision of Enterprise Wheel, in particular, is undertaken which requires some form of arbitral fact-finding as advocated above and more judicial laissez-faire where reinstatement is not in order, it would provide a basis for avoiding some of the more nonsensical arbitral and judicial rulings in this area.

Some kind of balance is inevitable in a system of state regulation and industrial self-government. Federal national labor policy promotes autonomy in the collective bargaining process. The courts, in dealing with arbitrability, judicial review, and with the host of other issues that Steelworkers Trilogy still provides, must shape a more appropriate and thoughtful balance.

*496 Acceptance of these ideas will improve matters considerably. Yet I fear that the best efforts will never resolve the concundrum. In the absence of radical labor law reform or repeal of the National Labor Relations Act-steps which I do not now advocate-the same basic problems will be with us in another thirty years time. That may be the price which our system mandates.

[FNa] This Article is based on a speech given by the author to the Industrial Relations Research Association in Los Angeles, California, on November 15, 1988, and an earlier presentation at the George Meany Center in Silver Spring, Maryland on December 11, 1987. Copyright is reserved by the author.

[FNaa] Charles A. Beardsley Professor of Law at Stanford Law School. Member of the National Academy of Arbitrators since 1970. To my knowledge, two of my awards in 24 years of arbitration have been challenged in the courts: Marine Transport Lines, Inc. v. Curran, 65 L.R.R.M. (BNA) 2095 (S.D.N.Y. February 27, 1967) (Arbitration awards vacated under authority later reversed by Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 U.S. 235 (1970)); Brotherhood of Teamsters Local 85 v. S.E. Rykoff and Co., No. C 87 4915 DLJ (N.D. Cla., May 19, 1988) (confirming arbitrator's decision and granting summary judgment in favor of defendant).

I have gained much from discussion about an earlier draft of this Article with Professor William Simon of the Stanford Law School. I am also grateful for the research assistance provided by Thomas Thompson, Stanford Law School '89. Of course, I take full responsibility for this Article.

[FN1] United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). See Aaron, On First Looking into the Lincoln Mills Decision, 12 ANN. MEETING, NAT'L ACAD. OF ARB. (BNA) 1 (1959); Cox, Current Problems in the Law of Grievance Arbitration, 30 ROCKY MTN. L. REV. 247 (1958); Cox, Reflections Upon Labor Arbitration, 73 HARV. L. REV. 1482 (1959); Gould, The Supreme Court and Labor Arbitration, 12 LAB. L.J. 330 (1961); Kramer, In the Wake of Lincoln Mills, 9 LAB. L.J. 835 (1958); Meltzer, The Supreme Court, Arbitrability and Collective Bargaining, 28 U. CHI. L. REV. 464 (1961); Shulman, Reason, Contract and Law in Labor Relations, 68 HARV. L. REV. 999 (1955); Summers, Judicial Review of Labor Arbitration, 2 BUFFALO L. REV. 1 (1952).

[FN2] Labor Management Relations (Taft-Hartley) Act, ch. 120, § 301, 61 Stat. 136, 156 (1947) (codified as amended at 29 U.S.C. §§ 141-144, 171-183, 185-187, 557) (1982).

[FN3] National Labor Relations (Wagner) Act, ch. 372, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151-168 (1982)).


[FN5] Sherman Antiturst Act, ch. 647, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§ 1-15 (1982)).

[FN6] Norris-LaGuardia Act, ch. 90, 47 Stat. 70 (1982) (codified as amended at 29 U.S.C. §§ 101-115 (1982).

[FN7] National Labor Relations (Wagner) Act, 29 U.S.C. §§ 151-168 (1982).

[FN8] Id. § 3 (codified as amended at 29 U.S.C. § 153 (1982)).

[FN9] Id. § 10 (codified as amended at 29 U.S.C. §§ 159-160 (1982)). See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

[FN10] 353 U.S. 448, 450-56 (1957). The courts are divided on the question of whether an agreement to arbitrate the terms of a new contract is covered by the Lincoln Mills rationale. To the effect that such ‘quasi-legislative’ arbitration is not enforceable, see Boston Printing Pressmen's Union v. Potter Press, 141 F. Supp. 553 (D. Mass. 1956), aff'd, 241 F.2d 787 (1st Cir.), cert. denied, 355 U.S. 817 (1957). However, a number of other courts have held that section 301 of the Act makes interest arbitration provisions enforceable. Builders Ass'n of Kansas City v. Kansas City Laborers, 326 F.2d 867 (8th Cir.), cert. denied, 377 U.S. 917 (1964); A. Seltzer & Co. v. Livingston, 253 F. Supp. 509 (S.D.N.Y.), aff'd, 361 F.2d 218 (2d Cir. 1966); Winston-Salem Printing Pressman v. Piedmont Publishing Co., 393 F.2d 221 (4th Cir. 1968); Chattanooga Mailers v. Chattanooga News-Free Press, 524 F.2d 1305 (6th Cir. 1975). Sometimes it is difficult to distinguish or characterize grievance or rights arbitrations involving the interpretation of a collective bargaining agreement as opposed to interest arbitration. Lodge 802, Intern'l Bhd. of Boilermakers v. Pennsylvania Shipbuilding Co., 85 F.2d 1045 (3d Cir. 1987). Interest arbitration agreements may also provide for grievance arbitration to take place subsequently. American Metal Products, Inc. v. Sheetmetal Workers Local 104, 794 F.2d 1452 (9th Cir. 1986); Sheetmetal Workers' Int'l Ass'n Local 206 v. R.K. Burner Sheetmetal, Inc., 859 F.2d 758 (9th Cir. 1988). The scope of this Article relates exclusively to grievance or rights arbitration in the private sector.

[FN11] 353 U.S. at 457. See also Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Local 174, Teamsters v. Lucas Flour, 369 U.S. 95 (1962); UAW v. Hoosier Cardinal Corp., 383 U.S. 696 (1966).

[FN12] Norris-LaGuardia Act, 29 U.S.C. §§ 101-110 (1982). Like judicial intervention in labor disputes itself, arbitration has a considerable history antedating the Taft-Hartley amendments. See, e.g., R. FLEMING, THE LABOR ARBITRATION PROCESS (1965); Nolan & Abrams, American Labor Arbitration: The Early Years, 35 U. FLA. L. REV. 373 (1983); Nolan & Abrams, American Labor Arbitration: The Maturing Years, 35 U. FLA. L. REV. 557 (1983); Freidin & Ulman, Arbitration and the National War Labor Board, 58 HARV. L. REV. 309 (1945).

[FN13] 393 U.S. 235 (1970); see generally Gould, On Labor Injunctions, Unions and the Judges: The Boys Markets Case, 1970 SUP. CT. REV. 215.

[FN14] 398 U.S. at 254.

[FN15] For the standard for arbitral review as articulated in the Trilogy, see United Steelworkers v. American Mfg., 363 U.S. 564, 568 (1960) (‘[T]he courts, therefore, have no business weighing the merits of the grievance, considering whether there is equality in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.’); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 585 (1960) (The ‘court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provision of a labor organization.’); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596-99 (1960) (Courts may refuse to enforce an arbitrator's award only if it does not ‘draw its essence from the collective bargaining agreement.’).

In contrast, the standard of review for Board decisions is more exacting. ‘[A] reasonable construction by the Board [in interpreting the NLRA] is entitled to considerable deference.’ NLRB v. City Disposal Sys., 465 U.S. 822, 829 (1984). If the Board's construction of the NLRA ‘is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute.’ Ford Motor Co. v. NLRB, 441 U.S. 448, 497 (1979). The court has ‘refused enforcement of Board orders where they had ‘no reasonable basis in law” or where it was ‘fundamentally inconsistent with the structure of the Act.’ Id. ‘The deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.’ American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965).

In regard to the standard for reviewing trial court decisions, when reviewing decisions of a federal district court, ‘the appellate court has the duty to correct the legal error of the trial judge without limitation, by doctrines of ‘clearly erroneous' and ‘abuse of discretion’ that are applicable to review of factual determinations.' FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977), cert. denied, 431 U.S. 974 (1977).

[FN16] Warrior & Gulf, 363 U.S. at 582-85.

[FN17] Id. at 578 (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 455 (1957).

[FN18] Enterprise Wheel, 363 U.S. at 599.

[FN19] Id. at 597.

[FN20] Courts will uphold an arbitrator's award if it is a ‘plausible reading of the contract’ (United States Postal Serv. v. National Ass'n of Letter Carriers, 789 F.2d 18, 20 (D.C. Cir. 1986) and Hughes Aircraft Co. v. Electronic & Space Technicians Local 1553, 822 F.2d 823, 826 (9th Cir. 1987)); if it is ‘not in manifest disregard of the law’ (Bevles Co. v. Teamsters Local 986, 791 F.2d 1391, 1394 (9th Cir. 1986), cert. denied, 108 S. Ct. 500 (1987)); if it is ‘not without a rational basis' (Newark Morning Ledger Co. v. Newark Typographical Union Local 103, 797 F.2d 162, 167 (3d Cir. 1986)); if it is ‘not based on facts contrary to the record’ (Safeway Stores v. United Food and Commercial Workers Local 400, 621 F. Supp. 1233, 1241 (D.C. Cir. 1985)); if it is ‘not arbitrary and capricious' (Alhambra Foundry Co. v. General Warehouseman's Union Local 598, 687 F.2d 287, 290 (9th Cir. 1982)); if it is ‘not without foundation in reason and fact’ (Singer v. Flying Tiger Line, Inc., 652 F.2d 1349, 1356 (9th Cir. 1981)); if it ‘can in any rational way, be derived from the agreement’ (Sun Petroleum Products v. Oil, Chemical and Atomic Workers Int'l Union Local 8-901, 681 F.2d 924, 927 (3d Cir. 1982)); if it is not ‘based on reasoning so palpably faulty’ (Local 1445, United Food and Commercial Workers v. Stop & Shop Cos., 776 F.2d 19 (1st Cir. 1985)).

[FN21] See Gould, Substitutes for the Strike Weapon, 28 ARB. J. 111, 113-14 (1973); F. ELKOURI AND E. ELKOURI, HOW ARBITRATION WORKS 7-9 (4th ed. 1985) [hereinafter ELKOURI].

[FN22] Gould, Mistaken Opposition to the NLRB, N.Y. Times, June 20, 1985, § I, at 27, col. 2.

[FN23] See NLRB v. Insurance Agents Int'l Union, 361 U.S. 477, 488 (1960) (‘Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences.’); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 547, 578 (1960) (‘[A]rbitration is the substitute for industrial strife [between unions and management]. Since arbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement, the hostility evinced by courts toward arbitration of commercial agreements has no place here. For arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself.’).

[FN24] This assumes that frivolous litigation cannot be substantially deterred by Federal Rule of Civil Procedure 11 or Federal Rule of Appellate Procedure 38. Courts have applied sanctions under Federal Rule of Civil Procedure 11 against a union which filed a duplicitous motion to compel arbitration, Pipe Trades Council of N. Cal. v. Underground Contractors Ass'n of N. Cal., 835 F.2d 1275 (9th Cir. 1987), and against an employer for filing a frivolous action to vacate an arbitral award. Dreis & Krump Mfg. Co. v. International Ass'n of Machinists and Aerospace Workers, District No. 8, 802 F.2d 247 (7th Cir. 1986). Appellate courts have also imposed sanctions under Federal Rule of Appellate Procedure 38 where an appeal taken from a district court order to enforce an arbitral award was frivolous. Trustees of Boston Univ. v. Boston Univ. Chapter, Am. Ass'n of Univ. Professors, 746 F.2d 924 (1st Cir. 1984). But see Local 239, Int'l Bhd. of Teamsters v. Colvin Motor Parts, 130 L.R.R.M. (BNA) 2984, 2985 (E.D.N.Y. 1988). See generally Schwarzer, Rule 11 Revisited, 101 HARV. L. REV. 1013 (1988). However, the Fourth and Fifth Circuit have awarded attorney's fees in an appropriate case, where a party makes an unjustified challenge to an arbitrator's decision, ‘lest federal labor policy be frustrated by judicial condonation of dilatory tactics that lead to wasteful and unnecessary litigation.’ International Ass'n of Machinists v. Texas Steel Co., 639 F.2d 279, 284 (5th Cir. 1981); United Food & Commercial Workers Local 400 v. Marval Poultry Co., Inc., 131 L.R.R.M. 2465 (4th Cir. 1989).

[FN25] Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 463 (1957) (Frankfurter, J., dissenting). Justice Frankfurer's views were well supported by the Court's previous resolution of arbitration and public policy issues through judicial review in Black v. Cutter Laboratories, 43 Cal. 2d 788, 278 P.2d 905 (1955), cert. granted, 350 U.S. 816 (1955), cert. dismissed, 351 U.S. 292 (1956) (arbitral reinstatement of dismissed Communist Party member is against California public policy).

[FN26] United States Postal Serv. v. National Ass'n of Letter Carriers, 839 F.2d 146 (3d Cir. 1988) (reversing district court decision vacating arbitral award on grounds that it violated public policy).

[FN27] Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 843 F.2d 357, reh'g granted, 857 F.2d 682 (9th Cir. 1988) (vacating award as contrary to public policy).

[FN28] Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 861 F.2d 665 (11th Cir. 1988) (vacating award).

[FN29] Florida Power Corp. v. International Bhd. of Elec. Workers, 847 F.2d 680 (11th Cir. 1988) (reversing district court's order vacating arbitrator's decision).

[FN30] Iowa Elec. Light & Power Co. v. Local Union 204 of Int'l Bhd. of Elec. Workers, 834 F.2d 1424 (8th Cir. 1987) (vacating award).

[FN31] Given the rather bizarre nature of some of the awards which arbitrators have fashioned in response to the above-described facts situations, one would think that employers would quickly exclude the offending arbitrators from future lists. This does not seem to be an effective remedy for employers, perhaps in part because unions generally have more information about arbitrators and the way in which they decide cases than do employers. This may be attributable to the fact that union representatives are more likely to have contact with different locals and different unions whereas, because of the small number of employer associations in this country, employers are not in as good a position to obtain the same benefits through an informal network. Cf. Irving, Enforceability of Awards: A Management Viewpoint, 41 ANN. MEETING, NAT'L ACAD. OF ARB. 96 (BNA 1989).

[FN32] See George Day Constr. Co. v. United Bhd. of Carpenters Local 354, 722 F.2d 1471 (9th Cir. 1984) (upholding district court confirmation of arbitral award).

[FN33] See Dunau, Three Problems in Labor Arbitration, 55 VA. L. REV. 427 (1969); Jones, The Name of the Game is Decision-Some Reflections on ‘Arbitrability’ and ‘Authority’ in Labor Arbitration, 46 TEX. L. REV. 865 (1968); Aaron, Judicial Intervention in Labor Arbitration, 20 STAN. L. REV. 41 (1967); Smith & Jones, The Supreme Court and Labor Dispute Arbitration: The Emerging Federal Law, 63 MICH. L. REV. 751 (1965); Meltzer, The Supreme Court, Arbitrability and Collective Bargaining, 28 U. CHI. L. REV. 464 (1961); see also Torrington Co. v. Metal Prod. Workers Union Local 1645, 362 F.2d 677 (2d Cir. 1966); Glendale Mfg. Co. v. Local No. 520, Int'l Ladies' Garment Workers' Union, 283 F.2d 936 (4th Cir. 1960), cert. denied, 366 U.S. 950 (1961).

[FN34] For a particularly valuable commentary see especially Heinsz, Judicial Review of Labor Arbitration Awards: The Enterprise Wheel Goes Around and Around, 52 MO. L. REV. 243 (1987); see also Dunsford, The Judicial Doctrine of Public Policy: Misco Reviewed, 4 LAB. LAW. 669 (1988); Parker, Judicial Review of Labor Arbitration Awards: Misco and Its Impact on the Public Policy Exception, 4 LAB. LAW. 683 (1988); Kaden, Judges and Arbitrators: Observations on the Scope of Judicial Review, 80 COLUM. L. REV. 267 (1980); St. Antoine, Judicial Review of Labor Arbitration Awards: A Second Look at Enterprise Wheel and Its Progeny, 75 MICH. L. REV. 1137 (1977).

[FN35] The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law-the practices of the industry and the shop-is equally a part of the collective bargaining agreement although not expressed in it. The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished. For the parties' objective in using the arbitration tensions is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs. The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed.

United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960). Cf. Burlington N.R.R.C. v. United Transport. Co., 862 F.2d 1266 (7th Cir. 1988); Brotherhood of Locomotive Engineers v. Boston & Maine Corp., 788 F.2d 794 (1st Cir.), cert. denied, 479 U.S. 829 (1986); Air Line Pilots Ass'n, Int'l v. Eastern Airlines, 130 L.R.R.M. (BNA) 2895 (D.C. Cir. 1989) for the similar approach employed under the Railway Labor Act, 45 U.S.C. § 151 (1982).

[FN36] 363 U.S. 593, 598 (1960).

[FN37] See International Ass'n of Machinists Local No. 402 v. Cutler-Hammer, Inc., 271 A.D. 917, 67 N.Y.S.2d 317, aff'd, 297 N.Y. 519, 74 N.E.2d 464 (1947).

[FN38] See Gould, The Supreme Court's Labor and Employment Docket in the 1980 Term: Justice Brennan's Term, 53 U. COLO. L. REV. 1 (1981).

[FN39] United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 572 (1960) (Brennan, J., concurring).

[FN40] Posadas de Puerto Rico Ass'n, Inc. v. Asociacion de Empleados de Casino de Puerto Rico, 821 F.2d 60, 61 (1st Cir. 1987).

[FN41] See Alexander v. Gardner-Denver Co., 415 U.S. 36, 49-52 (1974); cf. Gould, Labor Arbitration of Grievances Involving Racial Discrimination, 118 U. PA. L. REV. 40 (1969) (analysis of potential interplay between lbor arbitration and Title VII of the 1964 Civil Rights Act).

[FN42] 108 S. Ct. 1877 (1988) (holding that § 301 pre-empts state law if application of state law requires interpretation of collective bargaining agreement); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985); International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851 (1987). In the absence of legislation such as that advocated in California State Bar Ad Hoc Comm. on Termination at Will and Wrongful Discharge, To Strike a New Balance: A Report of the Ad Hoc Committee on Termination At All and Wrongful Discharge (Special Ed., Labor and Employment Law News, Feb. 8, 1984), litigation in this arena probably will continue to escalate. See generally Glendon & Lev, Changes in the Bonding of the Employment Relationship: An Essay on the New Property, 20 B.C.L. REV. 457 (1979); Gould, The Idea of the Job as Property in Contemporary America: The Legal and Collective Bargaining Framework, 1986 B.Y.U. L. REV. 885; Miller & Estes, Recent Judicial Limitation on the Right of Discharge: A California Trilogy, 16 U.C. DAVIS L. REV. 651 (1982); Summers, Individual Protection Against Unjust Dismissal: Time for a Statute, 62 VA. L. REV. 481, 485 (1976); Note, Implied Contract Rights to Job Security, 26 STAN. L. REV. 335 (1974). For a vigorous and radical attack upon the modern wrongful termination cases of the past decade, see Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV. 947 (1984).

[FN43] Lingle, 108 S. Ct. at 1881-82 (citing Kelsay v. Motorola Inc., 74 Ill. 2d 172, 384 N.E.2d 353 (1978) in which Illinois courts recognize a ‘tort of retaliatory discharge for filing a workers' compensation claim’).

[FN44] Lingle, 108 S. Ct. at 1885 (noting that Congress ‘affirmatively endorsed state anti-discrimination remedies in Title VII of the [1964] Civil Rights Act’).

[FN45] See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981) (employees may sue de novo under the Fair Labor Standards Act despite having their claim arbitrated); see also Gould, supra note 38, at 22-28.

[FN46] See Vaca v. Sipes, 386 U.S. 171 (1967).

[FN47] See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976).

[FN48] Gould, supra note 38, at 28-37; See Bowen v. United States Postal Serv., 459 U.S. 212 (1983).

[FN49] In order for a union to justify a work stoppage under § 502 of the Taft-Hartley Act, it ‘must present ‘ascertainable, objective evidence supporting the conclusion that an abnormally dangerous condition for work exists.’' Gateway Coal Co. v. United Mine Workers of Am., 414 U.S. 368, 387 (1974). See also Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980); NLRB v. Knight Morley Corp., 251 F.2d 753 (6th Cir. 1957), cert. denied, 357 U.S. 927 (1958); Philadelphia Marine Trade Ass'n v. NLRB, 330 F.2d 492 (3d Cir. 1964), cert. denied sub nom. International Longshoremen's Ass'n v. NLRB, 379 U.S. 833 (1964).

[FN50] See Oil, Chemical and Atomic Workers, Int'l Union, Local No. 4-228 v. Union Oil Co. of Cal., 818 F.2d 437 (5th Cir. 1987), cert. denied, 109 S. Ct. 1129 (1989) (holding that arbitrator's reinstatement of employee who no longer used drugs and would not be a safety risk was not contrary to public policy); Local Union 453, IBEW v. Independent Broadcasting Co., 849 F.2d 328 (8th Cir. 1988) (grievances involving employer's replacement of economic strikers are arbitrable). Frequently, the question of whether the courts or arbitrators will handle such issues is extremely problematic. See, e.g., Jackson v. Liquid Carbonic Corp., 863 F.2d 111 (1st Cir. 1988); On the balanced and cautious approach on this issue undertaken by the Supreme Court, see generally Skinner v. Ry. Labor Executives Ass'n, 109 S. Ct. 1402 (1989); National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989).

There are, of course, numerous issues involving the relationship between the National Labor Relations Act and arbitration. ‘[A]n entire field of jurisprudence has grown up with respect to the deference that the [NLRB] will give arbitrators' decisions in cases where those decisions also involve unfair labor practices and bargaining rights under the National Labor Relations Act.’ Oil, Chemical and Atomic Workers Int'l Union Local No. 4-23 v. American Petrofina Co. of Tex., 820 F.2d 747, 753 (5th Cir. 1987) (holding that arbitrator must decide whether striker was an employee on day contract went into effect and whether employer had just cause to fire). See also Carey v. Westinghouse Elec. Corp., 375 U.S. 261 (1964) (holding that arbitrator may decide issue covered by contract arbitration clause where NLRB does not have exclusive jurisdiction over the matter); Gateway Structures, Inc. v. Carpenters of the United Bhd. of Carpenters, 779 F.2d 485 (9th Cir. 1985) (stating that arbitrator would probably be permitted to make unit representation determination even though district court cannot make such a determination in the first instance); International Union United Auto., Aerospace and Agric. Implement Workers of Am. v. Telex Computer Prod., Inc., 816 F.2d 519 (10th Cir. 1987) (holding that concurrent jurisdiction of NLRB does not deprive arbitrator of authority to decide whether employees at newly constructed plant are covered by labor agreement); Warehouseman's Union Local No. 206 v. Continental Can Co., 821 F.2d 1348 (9th Cir. 1987) (NLRB's refusal to issue unfair labor practice complaint does not deprive arbitrator of authority to decide whether employer's hiring of non-union drivers violated collective bargaining agreement). On the Board and arbitration, see also United Technologies Corp., 268 NLRB No. 83 (1984); William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12 (1974).

[FN51] See Reinhardt, Arbitration and Courts: Is the Honeymoon Over? 40 ANN. MEETING, NAT'L ACAD. OF ARB. 25 (BNA 1987).

[FN52] See Hughes Aircraft Co. v. Electronic & Space Technicians Local 1553, 822 F.2d 823, 827 (9th Cir. 1987) (Kennedy, J., dissenting) (arguing that arbitrator cannot nullify a conflicting contract provision if a plausible interpretation will give effect to both provisions). But see United Food & Commercial Workers Local Union 1119 v. United Mkts., Inc., 784 F.2d 1413 (9th Cir. 1986) (Kennedy, J., dissenting) (arguing that arbitrator, in fashioning an award, must bring his informed judgment to bear to reach a fair solution). Recent labor disputes in transportation provide yet more expectations about Justice Kennedy's views on the relationship between the courts and arbitration in the sympathy strike arena. See Justice Kennedy's opinion in Trans Int'l Airlines, Inc. v. International Bhd. of Teamsters, 650 F.2d 949 (9th Cir. 1980), cert. denied, 449 U.S. 1110 (1981).

[FN53] The reasons for disenchantment with labor arbitration on the part of the parties themselves, independent of judicial review considerations, have been well chronicled in J. HOERR, AND THE WOLF FINALLY CAME: THE DECLINE OF THE AMERICAN STEEL INDUSTRY (1988) and T. KOCHAN, H. KATZ & R. McKERSIE, THE TRANSFORMATION OF AMERICAN INDUSTRIAL RELATIONS (1986).

[FN54] 475 U.S. 643 (1986).

[FN55] Id. at 646.

[FN56] Communications Workers v. Western Elec. Co., 751 F.2d 203, 206 (7th Cir. 1984), cert. granted, AT & T Technologies, Inc. v. Communications Workers, 474 U.S. 814 (1985), vacated, 475 U.S. 643 (1986).

[FN57] AT & T, 475 U.S. at 649. The AT & T decision does not involve procedural arbitrability or disputes about the timeliness of grievance handling, an issue which is for the arbitrators and not the courts. In International Union of Operating Engineers v. Flair Builders, 406 U.S. 487 (1972), the Court held that whether a union grievance is barred by laches is a question for the arbitrator to decide. In John Wiley & Sons v. Livingston, 376 U.S. 543 (1964), the Court stated that ‘≠procedural’ questions which grow out of a dispute and bear on its final disposition should be left to the arbitrator.' Id. at 557. Other federal courts of appeal have similarly construed Wiley. See Becton Dickinson & Co. v. Dist. 65, United Auto., Aerospace and Agric. Implement Workers of Am., 799 F.2d 57, 60 (3d Cir. 1986); Pilot Freight Carriers v. Teamsters, 659 F.2d 1252, 1257 (4th Cir. 1981); Oil, Chemical and Atomic Workers' Int'l Union Local 4-447 v. Chevron Oil Co., 815 F.2d 338, 340 (5th Cir. 1987); Local P-9, United Food and Commercial Workers Int'l Union v. George A. Hormel & Co., 776 F.2d 1393, 1394 (8th Cir. 1985); Niro v. Fearn Int'l, Inc., 827 F.2d 173, 175-76 (7th Cir. 1987); Washington Hospital Center v. Service Employees Int'l Union, Local 722, 746 F.2d 1503, 1506-08 (D.C. Cir. 1984); Toyota of Berkeley v. Automobile Salesman's Unionl Local 1095, 834 F.2d 751, 754 (9th Cir. 1987), cert. denied, 108 S. Ct. 2036, modified on other grounds, 856 F.2d 1572 (9th Cir. 1988); Denhardt v. Trailways, Inc., 767 F.2d 687, 690 (10th Cir. 1985). But see United Steelworkers v. Cherokee Elec. Coop., 829 F.2d 1131 (11th Cir.) (affirming district court decision dismissing union's action to compel arbitration on grounds that arbitration of timeliness issue is a waste of arbitration time where no dispute exists over facts bearing on timeliness issue), reh'g denied, 833 F.2d 1021 (11th Cir. 1987), cert. denied, 108 S. Ct. 1601 (1988) (White, J., dissenting).

[FN58] AT & T, 475 U.S. at 651.

[FN59] 461 U.S. 757 (1983).

[FN60] Id. at 766.

[FN61] Id. at 767 n.9.

[FN62] 108 S. Ct. 364 (1987).

[FN63] Misco., Inc. v. United Paperworkers Int'l Union, 768 F.2d 739, 743 (5th Cir. 1985).

[FN64] 108 S. Ct. at 374-75 n.12.

[FN65] Id. at 373-74.

[FN66] 36 Lab. Arb. (BNA) 695 (1961) (Holly, Arb.).

[FN67] Id. at 696 (‘When the Supreme Court held that the language in the Labor Agreement did not prevent arbitration, it left the basic question of arbitrability for the Arbitrator to decide.’).

[FN68] 398 U.S. 235 (1970). Other arbitrators have been of a similar view. Hughes Tool Co. v. Electrical & Space Technicians Local 1553, 36 Lab. Arb. (BNA) 1125 (1960) (Aaron, Arb.); Western Electric Co. v. International Bhd. of Elec. Workers Local 1898, 46 Lab. Arb. (BNA) 1018 (1966) (Dugan, Arb.); Zoological Soc'y of San Diego v. International Bhd. of Teamsters Local 481, 50 Lab. Arb. (BNA) 1 (1967) (Jones, Arb.); Bunn-O-Matic Corp. v. International Bhd. of Teamsters Local 916, 70 Lab. Arb. (BNA) 34 (1977) (Talent, Arb.). See generally, Smith & Jones, The Supreme Court & Labor Dispute Arbitration: The Emerging Federal Law, 63 MICH. L. REV. 751, 761 (1965).

[FN69] See American Tel. and Tel. Co. v. Communications Workers, 75 L.R.R.M. (BNA) 2178 (S.D.N.Y. 1970) (Frankel, J.) (ordering temporary restraining order to enjoin strike and directing parties to arbitrated whether change in wage rate violated collective bargaining agreement).

[FN70] 428 U.S. 397 (1976).

[FN71] See Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 403 (1976); Gould, On Labor Injunctions Pending Arbitration: Recasting Buffalo Forge, 30 STAN. L. REV. 533 (1978). For expedited arbitration of work stoppages which is provided by the existing collective-bargaining agreement, see New Orleans Steamship Ass'n, 67 Lab. Arb. (BNA) 805 (1976) (Hebert, Arb.) (expedited arbitration machinery not invoked when strikers returned to work); Ford Motor Co., 41 Lab. Arb. (BNA) 619 (1963) (Platt, Arb.). For court ordered expedited arbitration, see National Homes Mfg., 72 Lab. Arb. (BNA) 1127 (1979) (Goodstein, Arb.); Philadelphia Newspapers, 68 Lab. Arb. 401 (BNA) (1977) (Jaffee, Arb.).

[FN72] 428 U.S. at 430 n.26 (‘[T]he arbitrator remained free to decide that the underlying dispute was not arbitrable and hence that the enjoined strike was not in violation of the agreement.’); see also id. at 431 n.27 (arbitrator could disagree with court's determination that strike is clearly prohibited subject to ordinary review for arbitral awards). This has been the assumption employed by those courts that have granted temporary or preliminary relief to unions confronted with irreparable harm pending arbitration on the employer practice in question. These are the so-called reverse Boys Markets cases. Local Lodge No. 1266, Int'l Ass'n of Machinists & Aerospace Workers v. Panoramic Corp., 668 F.2d 276 (7th Cir. 1981); Lever Bros. v. International Chem. Workers Union Local 217, 554 F.2d 115 (4th Cir. 1976); Nursing Home & Hospital Union No. 434 v. Sky Vue Terrace, Inc., 759 F.2d 1094 (3d Cir. 1985); International Union, UAW v. Mack Trucks, 820 F.2d 91 (3d Cir. 1987); Miscellaneous Workers Local 610 v. Kroger Co., 858 F.2d 415 (8th Cir. 1988); United Steelworkers of America v. USX Corp., 130 L.R.R.M. (BNA) 3089 (E.D. Pa. 1989). Cf. Wood v. International Bhd. of Teamsters, Local 406, 807 F.2d 793 (6th Cir. 1986); Independent Oil and Chemical Workers, Inc. v. Proctor & Gamble Mfg., 864 F.2d 927 (1st Cir. 1988).

[FN73] Communications Workers v. Pacific Northwest Bell Tel. Co., 337 F.2d 455, 459 (9th Cir. 1964); see also Aaron, Judicial Intervention in Labor Arbitration, 20 STAN. L. REV. 41, 42-44 (1967).

[FN74] See Teamsters Union Local 287 v. Frito-Lay, Inc., 849 F.2d 1210, 1212 (9th Cir. 1988).

[FN75] See American Mfg. Co., 363 U.S. at 571.

[FN76] Morristown Daily Record, Inc. v. Graphic Communications Union Local 8N, 832 F.2d 31 (3d Cir. 1987).

[FN77] Id. at 34.

[FN78] See ELKOURI, supra note 21, at 216-20.

[FN79] See Cox, Reflections Upon Labor Arbitration, 72 HARV. L. REV. 1482 (1959).

[FN80] Id. at 1509-10.

[FN81] See Pitta v. Hotel Ass'n, Inc., 806 F.2d 419, 423-24 (2d Cir. 1986) (where issue is application of arbitrator's own employment contract, arbitrator ‘may not decide dispute in which he or she has a personal stake’).

[FN82] See ELKOURI, supra note 21, at 216-20.

[FN83] W. R. Grace, 461 U.S. at 765.

[FN84] I am indebted to Professor William Simon, Professor of Law, Stanford Law School, for making this obvious and straightforward point to me in private conversation (Stanford, Ca., March 23, 1989).

[FN85] See International Union of Elec. Workers v. General Elec. Co., 450 F.2d 1295 (2d Cir. 1971); International Union of Elec. Workers v. General Elec. Co., 407 F.2d 253 (2d Cir. 1968), cert. denied, 395 U.S. 904 (1969).

[FN86] Johnson v. United Food & Commercial Workers, Int'l Union Local No. 23, 828 F.2d 961, 964 (3d Cir. 1987). Contra Hutter Constr. Co. v. International Union of Operating Eng. Local 139, 862 F.2d 641, 644 (7th Cir. 1988). Some courts extend deference to arbitral awards which define the arbitrator's jurisdiction based upon the submissions by the parties. See Pack Concrete, Inc. v. Cunningham, 866 F.2d 283 (9th Cir. 1989); Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299 (3d Cir. 1982); Kurt Orban Co. v. Angeles Metal Sys., 573 F.2d 739 (2d Cir. 1978); Textile Workers Union v. American Thread Co., 291 F.2d 894 (4th Cir. 1961).

[FN87] 856 F.2d 1307 (9th Cir. 1988), cert. denied, 109 S. Ct. 869 (1989).

[FN88] E. M. Diagnostic Sys., Inc. v. Local 169, Int'l Bhd. of Teamsters, 812 F.2d 91, 95 (3d Cir. 1987).

[FN89] See supra notes 20, 26-34 and accompanying text.

[FN90] Compare United States Postal Serv. v. National Ass'n of Letter Carriers, 847 F.2d 775 (11th Cir. 1988) with American Postal Workers Union v. United States Postal Serv., 682 F.2d 1280 (9th Cir. 1982), cert. denied, 459 U.S. 1200 (1983). For varying approaches compare also Maggio v. Local 1199, 702 F. Supp. 989 (E.D.N.Y. 1989) and American Fed. of State, County & Mun. Employees v. State, 124 Ill. 2d 246, 529 N.E.2d 534 (1988) with Georgia Power Co. v. IBEW Local 84, 130 L.R.R.M. (BNA) 2419 (N.D. Ga. 1989).

[FN91] Stead Motors, 843 F.2d at 359.

[FN92] Northwest Airlines v. Air Line Pilots Ass'n, 633 F. Supp. 779 (D.D.C. 1985), rev'd, 808 F.2d 76 (D.C. Cir. 1987), cert. denied, 108 S. Ct. 1751 (1988). See also United States Postal Serv. v. National Ass'n of Letter Carriers, 789 F.2d 18 (D.C. Cir. 1986); World Airways v. International Bhd. of Teamsters, Airline O.V., 578 F.2d 800 (9th Cir. 1978). Cf. Kane Gas Light & Heating Co. v. International Bhd. of Firemen & Oilers Local 112, 687 F.2d 673 (3d Cir. 1982), cert. denied, 460 U.S. 1011 (1983); Local 863, Int'l Bhd. of Teamsters v. Jersey Coast Egg Producers, 773 F.2d 530 (3d Cir. 1985), cert. denied, 475 U.S. 1085 (1986); United States Postal Serv. v. American Postal Workers Union, 736 F.2d 822 (1st Cir. 1984); Amalgamated Meat Cutter & Butcher Workmen, Local Union 540 v. Great Western Food Co., 712 F.2d 122 (5th Cir.), reh'g denied, 717 F.2d 1499 (1983). Great Western was not followed in Teamsters Local 330 v. Elgin Ebby-Brown Co., 670 F. Supp. 1393 (N.D. Ill. 1987).

[FN93] Northwest Airlines, 808 F.2d at 83. See also E. I. DuPont de Nemours v. Grasselli Employees Ind. Ass'n, 790 F.2d 611, 618 (7th Cir.) (Easterbrook, J., concurring) (arguing that a ‘power to set aside awards on grounds of public policy, as distinct from rules of law, is too sweeping’), cert. denied, 479 U.S. 853 (1986); Jones Dairy Farm v. Local No. P-1236, United Food and Commercial Workers Int'l Union, 755 F.2d 583, 584-88 (7th Cir.) (Posner, J., dissenting), rev'd, 760 F.2d 173, cert. denied, 474 U.S. 845 (1985). Judge Posner points out that the arbitrator looked outside the contract to external law, in this case a Board decision in Milwaukee Spring Division of Illinois Coil Spring Co., 265 N.L.R.B. 206 (1982), rev'd, 268 N.L.R.B. 601 (1984), aff'd sub nom. International Union, UAW v. N.L.R.B., 765 F.2d 175 (D.C. Cir. 1985), because ‘the contract told him to look out.’ Accordingly, the arbitrator's award drew its essence from the contract despite a later Board decision reversing Milwaukee Spring, contrary circuit precedent and the fact that the arbitrator had misread Milwaukee Spring itself.

[FN94] Florida Power Corp. v. International Bhd. of Elec. Workers, 847 F.2d 680, 685 (Garza, J., dissenting).

[FN95] Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 843 F.2d 357, reh'g granted, 857 F.2d 682 (9th Cir. 1988).

[FN96] Northwest Airlines, 808 F.2d at 83 (public policy exception ‘applies only when the public policy emanates from clear statutory or case law’).

[FN97] Misco, 108 S. Ct. at 374 n.12.

[FN98] Id.

[FN99] See W. R. Grace, 461 U.S. at 706 (‘question of public policy is ultimately one for resolution by the courts').

[FN100] Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) (arbitration of Civil Rights Equal Employment Opportunity claim does not bar statutory right to de novo trial); see generally Gould, supra note 42; subsequently, I set forth the same point of view in Gould, Judicial Review of Employment Discrimination Arbitrations, 25 ANN. MEETING, NAT'L ACAD. OF ARB. 114 (NBA 1973); W. GOULD, BLACK WORKERS IN WHITE UNIONS: JOB DISCRIMINATION IN THE UNITED STATES, 207-42 (1977). I have put these views into practice in the labor arbitration process in Basic Vegetable Products, 64 Lab. Arb. (BNA) 620 (1975) (Gould, Arb.); Weyerhauser Co., Oklahoma and Arkansas Regions, 78 Lab. Arb. (BNA) 1109 (1982) (Gould, Arb.). The broader issue of the relationship between public law and the arbitration process has been debated for years at the annual meetings of the National Academy of Arbitrators. See, e.g., Feller, The Coming End of Arbitration's Golden Age, 29 ANN. MEETING, NAT'L ACAD. OF ARB. 97 (BNA 1976); Gould, Judicial Review of Employment Discrimination Arbitration, supra, Howlett, The Arbitrator, The NLRB, and The Courts, 20 ANN. MEETING, NAT'L ACAD. OF ARB. 67, 83 (BNA 1967); Meltzer, The Role of Law in Arbitration: Rejoinders, 21 ANN. MEETING, NAT'L ACAD. OF ARB. 58 (BNA 1968); Platt, The Relations Between Arbitration and Title VII of the Civil Rights Act of 1964, 3 GA. L. REV. 398 (1969); Sovern, When Should Arbitrators Follow Federal Law?, 23 ANN. MEETING, NAT'L ACAD. OF ARB. 29 (BNA 1970).

[FN101] See International Union of Elevator Constructors v. National Elevator Indus., 772 F.2d 10, 12 (2d Cir. 1985) (‘[The arbitrator's] decision would not be binding in a later proceeding if it involved arbitrability, which, in the absence of a specific agreement to the contrary, must be determined independently by the court.’); Centralab, Inc. v. Local 815, Int'l Union of Elec. & Radio Workers, 827 F.2d 1210, 1217 (8th Cir. 1987) (‘[W]here an arbitrator goes beyond his contractual authority to decide issues not properly before him, his award fails to draw its essence from the agreement and must be vacated, despite the usual great deference given to arbitrator's awards.’); McKinstry Co. v. Sheet Metal Worker's Int'l Ass'n Local Union 16, 859 F.2d 1382, 1385 (9th Cir. 1988) (The ‘court should independently review the [collective bargaining agreement when determining the question of arbitrability, and] should not give deference to arbitrator's decision [in this regard].’). See also supra notes 32, 85.

[FN102] Misco, 108 S. Ct. at 371.

[FN103] Id. at 372-73.

[FN104] See S. D. Warren Co. v. United Paperworkers' Int'l Union Local 1069, 849 F.2d 827, 828 (1st Cir.), cert. denied, 109 S. Ct. 555 (1988) (Warren II). Of course, the question of whether the parties have limited the arbitrator's discretion is a much litigated one. Cf. IBEW Local 84 v. Sawnee Elec. Membership Corp., 862 F.2d 1534 (11th Cir. 1989); Georgia-Pacific Corp. v. Local 27, United Paperworkers' Int'l Union, 864 F.2d 940 (1st Cir. 1988); Ferran v. Columbia Univ., 695 F. Supp. 1544 (S.D.N.Y. 1988). The Sixth Circuit Court of Appeals in United Steelworkers of America v. The Timken Co., 717 F.2d 1008 (6th Cir. 1988) held that the court generally treats questions of arbitrability and jurisdiction as limitations on an arbitrator's authority, ‘under the enterprise Wheel ‘essence of the contract’ standard and not as an issue of arbitrability.' Id. at 1014 (citing Sears, Roebuck & Co. v. Teamsters' Local Union No. 243, 683 F.2d 154 (6th Cir. 1982) (‘arbitrator improperly modified express contract language permitting subcontracting’)); Detroit Coil Co. v. International Assoc. of Machinists and Aerospace Workers, Lodge No. 82, 594 F.2d 575 (6th Cir. 1979), cert. denied, 444 U.S. 840 (1979) (‘arbitrator improperly ignored express requirement that employer be notified of grievance within eight days'); International Bhd. of Firemen and Oilers Local No. 935-B v. Nestle Co., 630 F.2d 474 (6th Cir. 1980) (arbitrator substituted his own view of the proper sanction for insubordination where the agreement specifically reserved to the management the right to discharge for insubordination). See also Dobbs, Inc. v. Local No. 614, Int'l Bhd. of Teamsters, 813 F.2d 85 (6th Cir. 1987) (arbitrator improperly ordered employee's reinstatement with back pay where contract expressly recognizes employer's right to discharge employee for proper cause). But the Sixth Circuit now seems to heed the argument that Misco means a more circumscribed judiciary. Eberhard Foods, Inc. v. Handy, 130 L.R.R.M. (BNA) 2830 (6th Cir. 1989).

[FN105] In S. D. Warren Co. v. United Paperworkers' Int'l Union, 845 F.2d 3 (1st Cir.), cert. denied, 109 S. Ct. 555 (1988) (Warren I), the court held that the language in the collective bargaining agreement, giving management the ‘sole right’ to discharge employees who violate Rule 7, permitted the court to find that the arbitrator's interpretation of the agreement was outside his delegated authority. Warren I, therefore, controlled the outcome of Warren II.

[FN106] Warren II, 846 F.2d at 829 (Coffin, J., concurring). Judge Coffin concurs in this holding only because Warren I controls and there is ‘no guarantee that there will be a rehearing en banc of Warren I, where [he] could express [his] views.’ Id. Judge Coffin's concurring opinion is, therefore, a dissent respecting both Warren I and Warren II.

[FN107] Id. at 832.

[FN108] Gardner-Denver, 415 U.S. at 56-58.

[FN109] See Lingle v. Norge Div. of Magic Chef, 108 S. Ct. 1877, 1884 (1988) (‘[T]here is nothing novel about recognizing that substantive rights in the labor relations context can exist without interpreting collective-bargaining agreements.’); see also Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 737 (1981) (despite federal policy favoring arbitration, ‘different considerations apply when the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.’); cf. Garcia v. NLRB 785 F.2d 807 (9th Cir. 1986).

[FN110] See Meltzer, After the Arbitration Award: The Public Policy Defense in Arbitration 40 ANN. MEETING, NAT'L ACAD. OF ARBITRATORS 39 (BNA 1987).

[FN111] Foley v. Interactive Data Corp., 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211 (1988) (holding that employee is not entitled to a tort claim of punitive damages for breach of the covenant of good faith and fair dealing by the employer). For discussion of Foley see Gould, State's High Court Takes Wrong Turn on Job Rights, L.A. Times, January 8, 1989, Part V, at 3, col. 1. The public policy exception to the principle that the contract of employment is terminable at will was previously accepted by the Supreme Court of California in Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 610 P.2d 1330, 164 Cal. Rptr. 839 (1980).

[FN112] In Misco, Justice White stated that:

[e]ven in very rare instances when an arbitrator's procedural aberrations rise to the level of affirmative misconduct, as a rule the court must not foreclose further proceedings by settling the merits according to its own judgment of the appropriate result, since this step would improperly substitute a judicial determination for the arbitrator's decision that the parties bargained for in the collective-bargaining agreement. Instead, the court should simply vacate the award, thus leaving open the possibility of further proceedings if they are permitted under the terms of the agreement. The court also has the authority to remand for further proceedings when this step seems appropriate.

Misco, 108 S. Ct. at 372 n.10. My proposal addresses the case where there is no fact-finding on an important issue, not inadequate fact-finding. It is in the former situation that I advocate that the arbitrator's award be vacated. Nevertheless, a remand may well be a useful adjunct to my proposal in most or some circumstances. On the approach that arbitrators should take on rehabilitation, see Collins, Just Cause and the Troubled Employee, 41 ANN. MEETING, NAT'L ACAD. OF ARB. 21 (BNA 1989); Denenberg, An Arbitrator's Perspective: The Arbitration of Employee Drug Cases, 36 ANN. MEETING, NAT'L ACAD. OF ARB. 90 (BNA 1983). For a provocative commentary on the rehabilitation issue in the context of the Valdez oil spill, see Mills, Society, Employers Owe Hazelwood Only So Much, Wall St. J., May 16, 1989, at A14, col 6.

[FN113] See Enterprise Wheel, 363 U.S. at 598. States generally construe their statutory arbitration provisions as not requiring a written opinion setting forth the arbitrator's reasons for his award. See UNIF. ARBITRATION ACT § 8, 7 U.L.A. 120 n.14 (1985 & Supp. 1989). A written opinion may be required, however, by a provision in the collective bargaining agreement or by statute. See Columbine Valley Constr. Co. v. Board of Directors, 626 P.2d 686, 695 (Colo. 1981) (holding that ‘[i]n the absence of a statute or provision in the arbitration agreement, an arbitration award need not recite specific findings of fact and conclusions of law’) and City of Burlington, Iowa, 68 Lab. Arb. (BNA) 454, 454 (1977) (Witney, Arb.) (‘statute specified that public-sector arbitrators ‘shall give written explanation for selecting party proposals.’ (quoting ELKOURI, supra note 21, at 281 n.257)).

[FN114] See Virgin Islands Nursing Ass'n Bargaining Unit v. Schneider, 668 F.2d 221, 223 (3d Cir. 1981) (quoting Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981).

[FN115] Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); cf. Givhan v. Western Line Consol. School Dist., 439 U.S. 410 (1979). More recently, the Court has taken the same approach to Title VII in Price Waterhouse v. Hopkins, 49 Fair Empl. Prac. Gas. (BNA) 954 (May 1, 1989).

[FN116] NLRB v. Transportation Management, 462 U.S. 393 (1983). See also Gould, The Burger Court and Labor Law: The Beat Goes On-Marcato, 24 SAN DIEGO L. REV. 51 (1987).

[FN117] Gould, The Supreme Court and Labor Law: The October 1978 Term, 21 ARIZ. L. REV. 621, 622-25 (1979).

[FN118] Safeway Stores, Inc., 64 Lab. Arb. (BNA) 563 (1974) Gould, Arb.).

[FN119] Cf. Bruno's Inc. v. United Food and Commercial Workers Int'l Union Local 1657, 858 F.2d 1529 (11th Cir. 1988).

[FN120] See W. GOULD, JAPAN'S RESHAPING OF AMERICAN LABOR LAW 44-93 (1984) (describing Japanese procedures and remedies, devised under a statute which mirrors American labor law, and promotes ongoing and harmonious employment relationships). The view that reinstatement is inappropriate outside union relationships has been expounded with vigor in West, The Case Against Reinstatement in Wrongful Discharge, 1988 U. ILL. L. REV. 1.

[FN121] Local 453, Int'l Union of Elec., Radio & Mach. Workers v. Otis Elevator Co., 314 F.2d 25 (2d Cir. 1963) (arbitral award not unenforceable on ground that award clashed with public policy or that reinstatement might expose employer to prosecution)


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