Veteran Labor Arbitrators Impart Lessons

Dispute Resolution Journal, May-Jul 2006 by Fazzi, Cindy

Veteran Labor Arbitrators Impart Lessons The Common Law of the Workplace: The Views of Arbitrators (2nd Edition) Edited by Theodore St. Antoine (National Academy of Arbitrators). Washington, D.C.: BNA Books (www.bnabooks.com), 2005. Hardcover. $125. 425 pages.

In 1997, the National Academy of Arbitrators (NAA) celebrated its 50th anniversary. As part of its celebration, the first edition of this book was written and published a year later. Celebration aside, the book was meant to impart lessons and share with newcomers to the field the collective wisdom of veteran arbitrators.

There have been significant changes since 1997, including the growing emphasis on ethical considerations in arbitration and the problem of drug use and violence in the workplace. "Yet perhaps continuity rather than change is the larger theme of this work," writes Theodore St. Antoine, professor emeritus of law at the University of Michigan School of Law and editor of the second edition of this book. Indeed, the book provides important information about key arbitral principles, a legacy started by the first edition of this volume.

The book starts with a discussion of ethics, a broad subject that includes the arbitrator's duty to disclose current or past economic, or close personal relationship with parties, counsel, witnesses, and others, as well as other factors that could raise questions about the arbitrator's impartiality. Parties to labor arbitration are expected to understand that labor arbitrators are likely to have had past contacts with employers or their counsel, so there generally is no need to disclose these relationships, writes John Kagel, an NAA member from California. "It is assumed that such contacts are taken into account in the mutual selection of the arbitrator," Kagel says. "Nevertheless, labor arbitrators have a duty to make disclosures if requested or if extraordinary circumstances arise either because of past economic relationships or because of events that occur during the course of the hearing."

Contract Interpretation

In a chapter about contract interpretation, the late Carlton J. Snow, a former law professor at Willamette University, discussed the "plain meaning" rule. Arbitrators vary in their approach to ambiguity in contract interpretation. Some arbitrators follow the "Elkouri rule," which is that if words are plain and clear, then there's no need to resort to contract interpretation. According to Prof. Snow, other arbitrators believe that language per se does not convey unambiguous meaning without reference to the context in which the language was used. So intrinsic evidence about context is essential in discovering meaning.

"It is probably accepted by most arbitrators that at least some information concerning the circumstances of the agreement may be necessary to give words meaning," wrote Snow. He noted that either approach asserts fidelity to the intent of the parties. But ambiguity as a tool of contract interpretation could be a disadvantage to the drafting party because the arbitrator may choose the interpretation that most benefits the party not responsible for creating the ambiguous term.

Discipline and Discharge

In a chapter devoted to discipline and discharge, NAA member Janet Maleson Spencer tackled the subject of the "troubled employee," defined as a worker who is "addicted to drugs or alcohol, or who has a serious mental illness."

Most arbitrators will apply disciplinary procedures to an addicted employee, but not necessarily so in the case of a mentally ill employee, said Spencer. "Some arbitrators insist that a termination of a mentally ill employee, if warranted, be nondisciplinary. Others make no distinction between disciplinary and nondisciplinary terminations, arguing that the difference is one of semantics," she wrote.

To determine whether termination is warranted, most arbitrators expect the employer to consider the employee's potential for recovery or rehabilitation and to allow this to take place before termination. Spencer noted that an employee who is merely stressed or in crisis is not considered a troubled employee.

Smoking Restrictions

Mark Thompson, professor emeritus of industrial relations at the University of British Columbia, wrote about smoking restrictions in the workplace. Employers traditionally banned smoking in areas at risk for fire or explosion. Eventually they extended smoking restrictions to areas where there was no fire or explosion risk because of concerns about the health danger of second-hand smoke.

Unions challenged such restrictions, saying that the matter was subject to negotiation. But most arbitrators upheld management action either because the employer has the right to make reasonable rules, or because the agreement lacked any language limiting management action. A contentious workplace issue in the 1980s and 1990s, smoking bans are now widely accepted because of increased evidence of the harmful effects of second-hand smoke.

Prepared by 16 authors and editors, this book is a gold mine for arbitrators and advocates alike. The format is reader-friendly Chapters are divided into useful categories such as practice and procedure, contract interpretation, management and union rights, etc. Within a chapter are various topics and every topic is introduced through a concise statement, followed by an arbitrator's comments and references.