Employee Responsibilities and Rights Journal VoL 4, No. 2, 1991

Book Review Labor Arbitration: A Practical Guide for Advocates. American Bar Association,

Section of Labor and Employment Law. Edited by Max Zimny, William F. Dolson, and Christopher A Barreca. The Bureau of National Affairs, Washington, D.C., 1990, 394 pp. + xxi, $45.00. This is a useful volume that should have been produced about 25 years ago. Better late than never. As a "Practical Guide" for labor arbitration advocates, it will be most helpful to neophytes, lawyers or not; but even old hands will find useful reminders and cautions between the covers. For the nonattorney labor relations specialist or union representative called upon to present arbitration cases, the Guide provides a valuable "how to" manual. In addition, it places arbitration in useful historical perspective and reviews the legal supports and constraints that labor arbitration advocates should know. For the attorney who may know labor law but not industrial relations, the Guide--which, after all, bears the imprimatur of the American Bar Associationexplains how and why the arbitration hearing differs from a trial in court. Various authors emphasize that arbitration is a substitute not for litigation but for the strike; that the parties, unlike many litigants, have a continuing relationship within which the arbitration process functions; and that advocates, by their comportment and tactics, should enhance rather than undermine the quality of that continuing relationship. The volume is well organized and offers little that is not relevant to its purpose. The contributions of its 34 authors (who include 14 arbitrators and 14 advocates), mostly well-known members of the arbitration establishment, contain remarkably little redundancy and many sharp perceptions. Background chapters on collective bargaining, arbitration history, and pertinent law are followed by union and management perspectives on "Drafting and Administering Grievance/Arbitration Provisions." Four sections of the book (about four chapters each) then deal with the nitty gritty: arbitrator selection , preparing one's case, the "rules" of evidence, examination and cross-examination of witnesses, opening and closing statements, briefs, the meaning of the "law of the shop," and much more. Four excellent papers examine "The Impact of External Law," and a final section looks at expedited arbitration, at individual rights in arbitration, and at judicial review of arbitration awards. A closing essay by Arbitrator Ralph Seward observes: 169

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Arbitration procedures can, if they are well done, have an effect throughout a plant and on future collective bargaining relations.., and on the day-to-day relationships between employees and supervision. The best advocate-on either side of the table -is the advocate who constantly keeps in mind this larger framework and who realizes his responsibility not only for the outcome of the particular case at hand but also for the health and effectiveness of the arbitration process. It is not a criticism but an accurate description to state that this c o m p e n d i u m is narrowly focused on advocacy in grievance ("rights") arbitration. It seeks to lubricate existing machinery by better advocacy. T h e r e is only perfunctory reference to alternative kinds of arbitration machinery. N o t h i n g is said a b o u t improving grievance p r o c e d u r e s or using mediation as a prearbitration step so as to minimize arbitration. T h e r e is almost nothing about the substance of arbitration cases and little c o n c e r n about delays and costs, although one union attorney has useful observations o n settlement considerations. O n e significant omission is the subject o f ethics, except for a suggestion that advocates should read the 1975 C o d e of Professional Responsibility for Arbitrators of L a b o r - M a n a g e m e n t Disputes. 1 T h e original 1951 version of this C o d e contained a useful section on advocate ethics that has now been omitted. 2 It is important, of course, that advocates recognize unprofessional or unethical c o n d u c t by arbitrators and take appropriate remedial steps3; but no training p r o g r a m for advocates in l a b o r a r b i t r a t i o n s h o u l d fail to i n s t r u c t such a d v o c a t e s in their o w n ethical obligations. Grievance arbitration is firmly established as a desirable m e c h a n i s m for joint living during the term o f a collective bargaining a g r e e m e n t and as a necessary comp l e m e n t to any no-strike clause. This volume ought to be required reading for all advocates and would-be advocates in labor arbitration. L a b o r arbitrators, as well, would find its content helpful. M a r k L. K a h n

Arbitrator and Professor Emeritus Wayne State University Detroit, Michigan 48202

1This Code was adopted in May 1975 by the American Arbitration Association (AAA), the Federal Mediation and Conciliation Service (FMCS) and the National Academy of Arbitrators (NAA). One amendment in May 1985 related to the publication of awards. ZCode of Ethics and ProceduralStandardsfor Labor-ManagementArbitration, 1951, prepared by the AAA and the NAA and approved by the FMCS. Part III. "Conduct and Behavior of the Parties," has been reprinted in Tim Bornstein, "Arbitration Advocacy," Chap. 3 of Labor and Employment Arbitration. New York: Matthew Bender (1988), w pp. 3-8 to 3-12. 3The 1951 Code included this admonition: "In keeping with the desire for complete impartiality, advocates should reject as arbitrators persons who solicit cases."

Employee Responsibilities and Rights Journal, VoL 4, No. 2, 1991

Book Review Arbitration 1989. The Arbitrator's Discretion During and After the Hearing. Edited by Gladys W. Gruenberg. Proceedings of the Forty-Second Annual Meeting N a t i o n a l A c a d e m y of Arbitrators. The Bureau of National Affairs, Washington, D.C., 1990, 291 pp., $35.00.

For some 42 years, the annual meetings of the National Academy of Arbitrators have incubated a miscellany of papers dealing, directly or collaterally, with grievance and interest arbitration of labor disputes. Some of these papers have explored new vistas, provided new insights, and made lasting contributions to the literature of union-management relationships. More often, they have recounted the rather routine experiences and observations of then-flourishing arbitrators and practitioners before them. These contributions are frequently flavored with personal anecdote, discreet self-promotion, or lamentations for the decay of the arbitration process, the corruption of collective bargaining, or the follies of the courts. The latest volume in the series, memorializing proceedings at the May-June meeting in Chicago in 1989, offers no unexpected deviations from the usual menu. However, the book continues to provide a backstage glimpse at the professional arbitration establishment, which may be rewarding to both the partisan advocate and the cultural anthropologist. The Academy's retiring president, Thomas T. Roberts, introduces the volume with a graceful remembrance of things past while Douglas Fraser confronts the future of the labor movement in what he pictures as its newly chosen course. There are many pages of discussion of specialized arbitration systems, permanent umpireships, arbitration in the airlines, arbitration in the federal sector, and an update on arbitration in the steel industry and among the railroads. These several papers review similarities as well as differences among the dispute resolution procedures that parties have developed in varied segments of the national economy. Generally, they reveal, more or less, the satisfied contentment of the authors with existing systems most familiar to them. Only a few dissenting voices are heard amidst Panglossian asseverations that "whatever is, is right." Nonetheless, for either the neophyte arbitrator entering these rather recondite areas or the scholar intent on evaluating them, the papers provide valuable information not readily obtainable from other sources. The denominated subject of the volume is "The Arbitrator's Discretion During and After the Hearing," to which about half of its pages are devoted. Under this rubric, Professor John T. Dunsford revisits the classic tests of "just cause" developed 171 0892-7545/91/0601Y~171506.50/0 9 1991 Plenum Publishing Corporation

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by the late Carroll Daugherty in Grief Bros. Cooperage Corp., 42 LA 455 (1964) and Whirlpool Corporation, 58 LA 421 (1972). Legal training teaches one to make use of concepts like "fraud" and "due process" without anguishing for definitions, but Professor Daugherty was an economist. In a search for Euclidean formulations, he devised seven "tests," which have commanded wide adherence. Professor Dunsford, acknowledging that these tests may be useful in "organizing a textbook," points out that they do not constitute a helpful agenda for deciding actual cases in that they are "misleading in substance and distracting in application." He regards as unexceptional those criteria that emphasize the need to give notice to employees of the conduct that is forbidden, the need for work rules that are related to the orderly, efficient and safe operation of the enterprise, and the requirements of evenhandedness in administering discipline and the need for "proper proportionality between offense and penalty." He contends, however, that the requirement that management must have conducted a fair and objective investigation prior to imposition of any discipline amounts to a gloss that does violence to the contractual language the parties employ. The arbitrator, Professor Dunsford argues, does not sit as a tribunal to "try" the employer, as Professor Daugherty himself insisted, perhaps reflecting his own experience on a tribunal reviewing cases for the railroad industry. Use of the Daugherty tests, Professor Dunsford contends, tends to distort the arbitrator's vision and award with a result reminiscent of the civil law approach, fitting the case into a code, rather than reflecting the artful flexibility of the common law tradition. The danger, Professor Dunsford says, is that "a process whose strength and uniqueness lies in the personal responsiveness of the decision maker to the daily problems of flesh and blood human beings in the shop may be transformed into an academic exercise, as tests and rules imported from extraneous sources begin to dominate the discretion and judgment of the arbitrator." This application of cynical acid should at least raise questions for those who have accepted the Seven Tests so uncritically. The S u p r e m e C o u r t authoritatively declared in 1960 that " T h e labor arbitrator's source of law is not confined to the express provisions of the contract," United Steelworkers of America v Warrior & Gulf Navigation Company, 363 US 574. Risk inheres in the arbitrator's search for other sources, however, and advocates find this approach discomfiting because of its inherent unpredictability. There are the usual vigorous reminders in this volume that the management approach to discipline usually seeks to confine the arbitrator's function to mere reading of the literal language of the contract, while abhorring all of its "implications." Such contentions, whether directed to Professor Dunsford's paper or to the interesting treatment of "Arbitral Implications: Hearing the Sounds of Silence," by Arbitrators Richard Mittenthal and Richard I. Bloch, have a predictable quality. They will no doubt reverberate for at least another 30 years. Indeed, they seem to mirror in the arbitration context the wider conflict between "intentionalism" and "activism" in constitutional interpretation sparked by the Bork confirmation hearings. In an organization of limited membership and purpose such as the Academy, it is to be expected that some themes are recurrent as appetite for them remains insatiable. Thus, Arbitrator Joseph Gentile explores the boundaries of permissible

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"arbitral advocacy" and Arbitrator George Nicolau revisits such issues as when to assist the weaker party, the sequestration of witnesses, and the unwisdom of reserving opening statements. To an advocate appearing before them, these nuts and bolts comments may provide tools for success. A generation of inbreeding, however, has tended to make pronouncements of the Academicians predictable. Nowhere is their parochialism more evident than in the section entitled "The Code and Postaward Arbitral Discretion." This section is directed toward one provision of the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes that was first promulgated in 1951 and revised in 1974 by the Academy, the American Arbitration Association and the Federal Mediation and Conciliation service. Section 6(D)(1) proclaims that, without the mutual consent of the parties, no "clarification or interpretation of an award is permissible." This imposes, as an ethical imperative, unqualified obedience to the old common law doctrine of functus officio, which taught that once an award is issued, its ambiguities, deficiencies, or errors are immutable and incapable of cure by the arbitrator no matter what the circumstances. In 1964, the late Peter Seitz suggested to the Academy that arbitrators issue tentative awards or reserve jurisdiction to complete their mission, thus circumventing the classic understanding of the functus officio doctrine. He was nonetheless constrained to declare that, "iffunctus officio were not a notion so firmly e m b e d d e d in the c o m m o n law, we would have had to invent it." This sounded a note of misplaced urgency, as the federal courts subsequently have made clear. In Courier-Citizen Company v Boston Electrotypers Union No. 11, 702 F2d 273, 279 (1st Cir. 1983) the court held that "in fashioning a substantive law of labor relations pursuant to section 301 of the Labor Management Relations Act . . . the federal courts have refused to apply the strict common law rule of functus officio." This view is e c h o e d in a n u m b e r of decisions including Automotive

Petroleum and Allied Industries Employees Union, Local 618 v Sears, Roebuck and Co., 581 F Supp 676-7 (ED Mo. 1984); and in United Steelworkers of America v Ideal Cement Co., 762 F2d 837, 841-2 (10th Cir. 1985). Nevertheless, in this latest volume, Arbitrator Dennis R. Nolan reassures the Academy 25 years later thatfunctus officio is a "rule of law, of prudence, of loyalty and of ethics." Professor Charles M. Rehmus's report that about half of the arbitrators surveyed systematically reserve jurisdiction to resolve disputes arising implementing a "final a w a r d " - a palpable Pickwickian evasion of the rule. Yet he disclosed no skepticism about the wisdom of the Code. Instead, he and his panel colleagues became embroiled in debating whether remedying a deficiency in the award justifies a further fee, even when substantial additional effort is required, or whether the parties should be asked to approve a reservation of jurisdiction before an award is issued or before the record is closed. Such questions may be of interest to the trade, but one would have liked to see a more serious consideration of the abiding legitimacy of this provision of the Code. Why, as some assert, is it ethically and professionally responsible to correct a typographical error, an erroneous computation or misidentification of a party, but not to remedy a more substantial mistake or deficiency? If the parties mutually agree to submit their dispute to arbitration and provide that the award shall be "final and binding,"

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how may it be claimed that they have denied authority to the arbitrator "to make a complete award as the national labor policy contemplates?" United Paperworkers, AFL-CIO v Westvaco, 461 F Supp 1022, 1024 (WD Va. 1978). It is now well settled that if an award is "incomplete, ambiguous or inconsistent," the court will remand it to the arbitrator for reparation notwithstanding any common law notion that the arbitrator has been shorn of p o w e r - - a result compelled by both practical necessity and good sense. See, e.g., Grand Rapids Die Casting v Local Union No. 159, UAW, 684 F2d 413, 416 (6th Cir. 1982); Ethyl Corporation v United Steelworkers of America, 768 F2d 180, 187 (7th Cir. 1985). Are arbitrators then to shirk the chores directed by the courts because the Code brands them ethically irresponsible if they comply? Functus officio was first applied to arbitrators when the common law courts were jealous of their own jurisdiction. If an award was found deficient and unenforceable, the only possible remedy was a lawsuit. Under the national labor policy, however, it is for arbitrators, not for courts, to interpret and apply collective bargaining agreements. Courts now decline such assignments, even to the point of expanding arbitral authority to interpret another arbitrator's handiwork a well as the labor contract. Fieri non debet, sed factus valet, Circuit Judge Tuttle declared in San Antonio Newspaper Guild Local No. 25 v San Antonio Light Division, 481 F2d 821 (5th Cir. 1973). One would hope that the Academy would be more attentive to the incongruities of its own Code than to devoting its exertions to what may appear to some to be subdividing pinheads for angelic feet. Obviously, arbitrators should not permit new grievances to be piggybacked on old ones, but mistakes or inadequacies of awards should not be mortgaged to the consent of the party who resists correcting them. If this volume bespeaks some institutional tiredness, after 42 years of significant reportage, a little senility is to be expected, and even pardoned. Erwin B. Ellmann

Attorney and Arbitrator Levin, Levin, Garvett and Dill, P.C. Southfield, Michigan 48075