Of Words and Contracts: Arbitration and Lexicology

Dispute Resolution Journal, May-Jul 2005 by Dilts, David A

There are several ways that negotiators of collective bargaining agreements might reduce the risk that an arbitrator will construe specific contract language in a manner they didn't contemplate. One method was employed in the ColgatePalmolive Co. case. There, the parties included in the collective bargaining agreement definitions of particular terms so that they could be uniformly applied during the life of the contract. Putting definitions in the four corners of the written agreement usually is due to hard-learned lessons from multiple grievances involving the same or similar language in previous contracts. Negotiators can agree to define terms in the collective bargaining agreement when anticipating that those terms might be considered ambiguous later on. The definitions in the agreement resolve any issue of ambiguity. However, it is not always easy to anticipate the source of problems and it is impractical to define every word in a collective bargaining agreement. These are the land mines of contract interpretation.

Another way to reduce the risk of ambiguity is to carefully proofread the final draft of the collective bargaining contract to make sure there are no errors that would alter the parties' mutual intent.21 In addition, after the contract is signed by both parties, it could be helpful to conduct joint training sessions on the newly negotiated agreement to assure that both stewards and first line managers fully understand what the negotiators intended and how to apply the contract language in routine circumstances. This is often done in small bargaining units. These undertakings could help prevent disputes by assuring the broadest possible understanding of the mutual intent of the negotiators among management and union officials.

The parties may also define in the collective bargaining agreement any terms they agreed upon during negotiations to provide guidance in the administration of the contract and, perhaps, assist third-party neutrals who might be called upon to resolve a grievance. Instead of doing this, the U.S. Postal Service and the National Association of Letter Carriers, during the 1990s negotiations, developed an adjunct to their National Agreement called the Joint Contract Administration Manual (JCAM), which defines terms and provides other evidence of the parties' mutual intent with respect to each article in the main agreement.22 The object of the JCAM was to prevent and resolve grievances before reaching the arbitration step of the grievance procedure. Drafting the JCAM was an ambitious endeavor, inasmuch as it required the parties to examine their contract and decide what it had come to mean through industry practice and interpretations of labor cases over a period of decades.

In arbitration proceedings between the Letter Carriers and the Postal Service, counsel for the parties often introduce into evidence provisions of the JCAM to illustrate the parties' intent to the arbitrator. In essence, the JCAM is a reference document, much like a dictionary, but containing much more than definitions of terms found to be ambiguous or troublesome in previous applications.