Ruminations about Ideology, Law, and Labor Arbitration
1967; University of Chicago Law School; Volume: 34; Issue: 3 Linguagem: Inglês
10.2307/1598847
ISSN1939-859X
Autores Tópico(s)Labor Movements and Unions
ResumoI propose to say something about three persistent and interdependent questions: First, is the arbitration system especially vulnerable to pressures that are incompatible with a fair and even-handed disputesettling mechanism?Second, what is the appropriate role of the courts in actions challenging an award as wholly incompatible with the governing agreement?Third, what is the proper role of the arbitrator with respect to statutory or policy issues that are enmeshed with issues concerning the interpretation of the collective bargaining agreement?The first two issues have been highlighted by the sharply conflicting assessments of arbitration by Mr. Justice Douglas and Judge Hays.There are several ironic aspects to their disagreement.Mr. Justice Douglas, evidencing an unusual devotion to the passive virtues, said in effect: "Anything We Can Do, Arbitrators Can Do Better."Judge Hays, although an eminent ex-arbitrator, implied: "They Got Plenty 0' Nuttin'" and "Let's Call the Whole Thing Off." Incidentally, my own view' about each of those performances is: "It Ain't Necessarily So."Before venturing some comments about the principal counts in Judge Hays' indictment, let me summarize my views about his methodology.His charges generally suffer from a painful lack of documentation, and when he reaches for evidence, his methods are distorted by a passion for denunciation.In short, he has substituted for the Supreme Court's mythology of arbitral excellence a new mythology of arbitral corruption and incompetence.Any judgment about the competence of arbitrators is complicated by two factors.First, arbitration is obviously not a unitary system.It
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