UNIVERSITY OF

CINCINNATI LAw REVIEW

PUBLISHED QUARTERLY BY THE BOARD OF EDITORS

VOLUME 47 1978 No. 3

LABOR ARBITRATION'S CROSSROADS REVISITED:

THE ROLE OF THE ARBITRATOR
AND THE RESPONSE OF THE COURTS

Richard 1. Bloch*
I. INTRODUCTION

The relationship between arbitration and the judicial system has long been
the subject of intense discussion. This discussion has focused, for the most
part, on the inherent jurisdictional difficulties between the private and pub-
lic arbiters and has directed itself to the investigation and establishment of
boundaries. The concern usually centered around the appropriate interplay
between the labor contract and external law. Recently, however, the sub-
stantial increase in labor-related legislation, combined with the Supreme
Court's landmark 1974 decision in Alexander v. Gardner-DenverCo.,' have
created new, highly troublesome variations on the old theme. Incorporation
of new legislation within collective bargaining agreements has created docu-
ments which inevitably assume a more public cast and which arguably may
impose a quasi-public function upon the neutral arbitrator. These develop-
ments have raised substantial questions and some dire predictions as to the
continuing viability of the present arbitral function. It is appropriate, there-
fore, to reexamine the issue of the proper relationship between the private
and public forums for dispute settlement.
There is no reason to question the basic and necessary premise that the
job of an arbitrator is to interpret and apply the terms of the collective
bargaining agreement. Surely that is the lesson of the Steelworkers Tril-

* A.B., Dartmouth College; J.D., University of Michigan Law School; M.B.A., University
of Michigan Graduate School of Business Administration; Member of District of Columbia and
Michigan Bars; Executive Secretary, National Academy of Arbitrators, 1977-80.
1. 415 U.S. 36 (1974).
 CINCINNATI LAW REVIEW [Vol. 47

ogy. 2 If it is not clear that the parties intended that external law resolve the
matter, the arbitrator should assume they did not so intend.2 If, however,
the parties have chosen to incorporate external law into their agreement, the
arbitrator must interpret and apply that law.
This Article attempts to demonstrate the need for an expanded, more
sophisticated role for arbitration and a concomitantly responsive and sensi-
tive role on the part of the judiciary. Achievement of this goal, it will be
argued, is by no means inconsistent with judicial protection of the public
interest and is essential to the maintenance of an effective industrial-dispute
settlement system. The Article begins by examining recent discussions and
proposals concerning the proper role of the arbitrator in an increasingly
legalized industrial environment and then reviews the past and current judi-
cial responses to arbitration. In the process of examining the proper role of
arbitration and arbitrators, the Article will review the status of public laws in
private contracts, the response of the arbitrator to the various issues and
problems posed by the new mix, and the response of both courts and admin-
istrative agencies to arbitrators. This examination leads to the conclusion
that, in limited but significant circumstances, there is a new role for arbi-
trators.
II. EXTERNAL LAW AND ARBITRATION

A. The Arbitrator and the Law

The impact of external law upon the contract has been the subject of long
and fervent debate. 4 One commentator has proposed that the collective
bargaining agreement cannot be construed absent full consideration of exter-
nal law. 5 His premise is that contracts in general are interpreted in accord-

2. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960); United
Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers v.
American Mfg. Co., 363 U.S. 564 (1960).
3. The arbitrator "is not a public tribunal imposed upon the parties by superior authority
which the parties are obliged to accept. He has no general charter to administer justice [for a
community] which transcends the parties. He is rather part of a system of self-government
created by and confined to the parties." Shulman, Reason, Contract and Law in Labor Rela-
tions, 69 HARV. L. REV. 999, 1016 (1955). See Feller, The Corning End of Arbitration's Golden
Age, in 29 NAT'L ACAD. Ann. PRoc. 97 (1976).
4. See Jones, The Role of Arbitration in State and National Labor Policy, in 24 NAT'L
ACAD. ARB. PROC. 42 (1971); Mittenthal, The Role of Law in Arbitration, in 21 NAT'L ACAD.
ARB. PROC. 42 (1968); Morris, Comment in 24 NAT'L ACAD. ARB. PROC. 65 (1971); Platt The
Relationship Between Arbitration and Title VI of the Civil Rights Act of 1964, 3 GA. L. REV.
398 (1969); St. Antoine, Discussion, in 21 NAT'L ACAD. ARB. Proc. 75 (1968); Sovern When
Should Arbitrators Follow Federal Law?, in 23 NAT'L ACAD. AnB. Pnoc. 29 (1970).
Throughout this article, external law will often mean Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000 (e) (1970). In part, this is due to the already noticeable impact of Title VII on
arbitration proceedings. Courts may differ in their treatment of issues in cases involving other
external laws, however, for purposes of this article, the responsibility of arbitrators is assumed
to remain unchanged.
5. Howlett, The Arbitrator, the NLRB and the Courts, in 20 NAT'L ACAD. ARB. PROC. 67,
83 (1967).
19781 ARBITRATION CROSSROADS

ance with all applicable laws. This premise is based on the assumption that
the labor agreement is ftIlly comparable to any other commercial contract.
This proposal seemingly ignores the numerous problems of' adapting tra-
ditional contract doctrines to the labor arena. 6 As another commentator has
7
persuasively argued, the collective agreement in the labor field is unique.
The view advocated by Professor Meltzer rejects the proposition that ex-
ternal law must always be consulted. 8 Meltzer acknowledges that external
law or public policy may be relevant whan a broadly drawn contract provi-
sion clearly was formulated with an eye to incorporating public policy or
when a contract clause is susceptible to two interpretations, one compatible
with, the other repugnant to, an applicable statute. 1f, however, there is "an
irrepressible conflict, the arbitrator ... should respect the agreement and
ignore the law." 9
The source of this debate is an ambiguity inherent in United Steelworkers
v. Enterprise Wheel and Car Corp. 10 There the Supreme Court suggested
that an arbitrator is not confined to the text of a labor agreement and may in
the appropriate case look to the law for assistance in "determining the sense
of the agreement."" The Court, however, also demanded that an enforce-
able arbitration award "draw its essence from the collective bargaining
agreement" 12 and not from the requirements of external law. Notwithstand-
ing the Court's otherwise strong endorsement of arbitration, this ambiguity
bred a somewhat nebulous relationship between the arbitral and judicial
processes. 13
In Alexander v. Gardner-DenverCo., 1 4 the Supreme Court held that an
individual could proceed judicially to enforce his or her rights under Title
VII of the Civil Rights Act of 1964 despite a final adverse decision in arbitra-
tion. The Court thereby added new substance to the debate on arbitral and
judicial roles and indeed brought arbitration to a new era. The Court did
chart a reasonably clear course, at least in the context of Title VII, with
respect to the arbitrator's function vis-4-vis external law. In providing for

6. 'See, e.g., Chamberlain, Collective Bargaining and the Concept of Contract, 48 COLUM.
L. REV. 829 (1948); Cox, Rights Under a Labor Agreement, 69 HAR'. L. REV. 601 (1956); Cox,
The Legal Nature of Collective Bargaining Agreements, 57 Micn. L. REV. 1 (1958); Gregory,
The Law of the Collective Agreement, 57 MICH. L. REV. 635 (1959); Gregory, The Collective
Bargaining Agreement: Its Nature and Scope, 1949 WASI. U.L.Q. 3; Rice, Collective Labor
Agreements in American Law, 44 HARv. L. REV. 572 (1931); Shulman, supra note 3.
7. Feller, A General Theory of the Collective Bargaining Agreement, 61 CALIF. L. REV.
663, 720 (1973).
8. Meltzer, Ruminations About ideology, Law, and Arbitration, in 20 NAT'L ACAD. Ann.
PROC. 1 (1967).
9. Id. at 16.
10. 363 U.S. 593 (1960).
11. Id.at 598.
12. Id.
13. See 23 U.C.L.A.L. REV. 936 (1976).
14. 415 U.S. 36 (1974).
 CINCINNATI LAW REVIEW [Vol. 47

trial de novo in the courts, the Court assumed that the arbitrator will stick to
the contract and abjure the law. In so doing, the Court adopted sub silentio
Meltzer's view.15
Significant questions remain after Gardner-Denver,for strict adherence to
the contract does not resolve the problems raised by incorporation of exter-
nal law into the contract. Thus, problems persist, not in cases involving an
irrepressible conflict, but in cases presenting no conflict at all, where the
parties have specifically or impliedly chosen to incorporate external law into
their agreement. There is no reason to disagree with the premise that when
external law is so incorporated, the arbitrator may, indeed must, interpret
and apply that law. This premise, however, does suggest a significantly ex-
panded role for the arbitrator, the consequences of which are the subject of
substantial debate.

B. Arbitration at a Crossroads
External law has had an increasing impact upon labor arbitration.1 6 Pro-
fessor Feller therefore has concluded that arbitration's future is dim because
voyages by arbitrators into external law, outside their field of special exper-
tise, will inevitably undermine arbitration in the eyes of the courts and,
accordingly, limit its usefilness in the eyes of the parties. 1 7 Concerning the
arbitral role, Feller thinks the choice is between specialists, who possess
expertise in labor relations and in the parties' internally formulated law, and
generalists, who are devoid of special competence. He prefers the specialist,
the arbitrator who serves a limited rather than an all-purpose ftnction. 18
Feller thinks it is unlikely that external rules will become sufficiently
familiar to the parties and to the arbitrators so as to "recede into the back-

15. Title VII grants federal employees the same rights to trial de novo as their private-sector
counterparts. Chandler v. Roudebush, 425 U.S. 840 (1976).
16. E.g., The Equal Pay Act of 1963, 29 U.S.C. § 206 (1970); The Occupational Safety and
Health Act of 1970; 29 U.S.C. §§ 553, 651-678 (1970); Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000 (e) (1970). See Aaron, The Impact of Public Employment Grievance Settlement
on the Labor Arbitration Process, in TIlE FUTURE OF LABOR ARBITRATION IN AMERICA 1
(1976); Christensen, PrivateJudges-Public Rights; The Role of Arbitration in the Enforcement
of the National Labor Relations Act, in THE FUTURE OF LABOR ARBITRATION IN AMERICA 49
(1976); Koretz & Rabin, Arbitration and Individual Right, in THE FUTURE OF LABOR ARBITRA-
TION IN AMERICA 113 (1976).
17. Feller, The Impact of External Law Upon Labor Arbitration, in THE FUTURE OF LABOR
ARBITRATION IN AMERICA 83 (1976):
[I]t remains, and will remain, enormously diflicult to persuade the average court
that the proper application and interpretation of an agreement is not a function
which it is supremely competent to perform. Deference to arbitral competence was
and is difficult to achieve. And I suggest it will be impossible to maintain if arbi-
trators extend themselves and regard arbitration as the tribunal in which broader
policies than those contained in the agreements themselves are to be enforced.
Id. at 110.
18. Id.
1978] ARBITRATION CROSSROADS

ground and pose relatively few problems."' 19 Although Feller recognizes

three potential responses to the problems generated by the increased legisla-
20
tive impact on labor agreements, he finds each response unsatisfactory.
First, to the suggestion that arbitrators could decide all questions under both
contractual and legal standards, Feller asserts that arbitrators may be inca-
pable of performing this function. Another alternative lies in splitting litiga-
tion and developing a system of law in which the National Labor Relations
Board (NLRB) or the courts would defer to arbitration as to contract issues
but accept jurisdiction over remaining statutory questions, using the arbitra-
tion decision as datum not subject to review. This alternative, however,
would be cumbersome and unworkable. Third, the NLRB could decide the
external law question and also decide the meaning of the contract. The
thought of the NLRB interpreting the contract caused Feller to shudder.
Having found no satisfactory solution, Feller has concluded that, since "the
institution of arbitration must suffer in one way or another," the best solu-
tion may be to have the arbitrators construe external law in the interests of
21
the parties.
Professor Edwards objects to Feller's pessimism. 22 Edwards agrees that
the increasing interplay between public statutes and private contracts has
presented a substantial challenge to arbitration, which indeed has brought
arbitration to a crossroads. Edwards also thinks that the institution of arbitra-
tion will suffer to the extent it expands beyond the traditional boundary
defined by the "common law of the shop": "The more that arbitration and
arbitrators look to decide 'legal' issues, the more the courts will be willing to
overturn arbitral judgments. The more that the parties abandon informal,
cheap and expeditious proceedings, the less likely it is that arbitration will
be seen as a therapeutic [extension] of collective bargaining." 23 Yet Ed-
wards rejects Feller's gloomy prognosis for the following reasons. First, the
magnitude of the increase in external regulation of employment relations is
not as significant as Feller would suggest. Second, the increase in public
legislation has resulted in more, not fewer, disputes for arbitral resolution.
Finally, it is entirely possible for arbitrators to deal with some, although not
24
all, issues of public law.
The Feller-Edwards debate notwithstanding, the general concern is with
arbitrators involving themselves in legal questions in such a way as to de-
vitalize the public law through improper private administration and, in so
doing, to diminish the importance of. arbitration itselt Overall, both Ed-

19. Id. at 112.

20. Feller, supra note 3, at 123-25.
21. Id. at 125.
22. Edwards, Labor Arbitration at the Crossroads:The "'Common Law of the Shop" v. Ex-
ternal Law, 32 ARB. J. 65 (1977).
23. Id. at 94.
24. Id. at 85-88.
 CINCINNATI LAW REVIEW [Vol. 47
wards and Feller concern themselves with the existing structure of labor
arbitration in light of radically changing legal realities. Feller concludes
there is no acceptable alternative, thus foretelling the demise of the process.
Edwards finds salvation in modifying existing grievance procedures.

C. Modifying the Arbitral Process

Edwards proposes a two-track system which will exclude the following
grievances from arbitration: (1) those which allege only a breach of law; (2)
those that charge both the union and the employer with discrimination; (3)
grievances seeking a reformation of the contract; (4) claims of inconsistency
between the collective bargaining agreement and a court or administrative
order; (5) grievances which sound in the nature of a class action; and (6)
grievances that involve unsettled areas of law. 2 5 Yet, even assuming that
exclusion of these grievances is justifiable as a matter of good labor relations,
it is unclear how one would implement the system. Who, for example, will
decide that a matter involves an unsettled area of law or that a grievance
alleges only a breach of law? The employer may well raise this claim, but
often it will be unrealistic to expect the parties to have the necessary exper-
tise to make an accurate assessment. Moreover, notwithstanding the contract
language, unions confronted with the specter of fair-representation suits can-
not reasonably be expected to exclude the minority grievant on one of those
grounds. It is more predictable that, should the charge fall within an
excluded category, a cautious representative will assist the employee in
amending the grievance. 2 6 Even if the claim does fall within one of Ed-
wards' excluded categories, there may be a dispute on this point, which
most probably will eventually be settled by an arbitrator.
Ideally, internal grievance machinery should be informal, speedy, inex-
pensive and responsive to the particular problems of the work place. Yet, in
the final analysis, Edwards' screening criteria merely add another, rather
complex step to this process. Moreover, the bifurcated procedures will
channel even more disputes to courts or administrative agencies. Thus, even
if the system fulfills its expectations, there are substantial problems. Admit-
tedly, there may be some virtue in avoiding multiple actions. At the same
time, the two-track process may negate the possibility of conciliation, set-
tlement, or even an arbitration award which might moot the cause of action

25. Id. at 89.

26. Many grievances which allege discrimination also allege the standard contract violation.
An individual disciplined for fighting in the plant, for example, may claim that the fighting was
in self-defense and, moreover, that, as a result of race discrimination, discipline was unusually
harsh. Inherent in the two-track system is the requirement that, should such an induvidual wish
to process the grievance through standard channels, any reference to race discrimination should
be excluded. This is easy enough-instead of claiming race discrimination, the grievant may
simply claim disparate treatment and thereby jump back in the internal-dispute settlement
track. Nevertheless, assuming a major purpose of the two-track system is to obviate the prob-
lems posed by two bites at the apple, the system contains a very major loophole.
1978] ARBITRATION CROSSROADS

in another forum. 27 In addition, by relegating discrimination disputes to the

federal courts or agencies, the two-track system removes a significant aspect
of industry-related disputes from the dispute-settlement procedure. This
hardly honors the tradition of the Steelworkers Trilogy. Instead, the two
tracks diminish the scope of' the arbitration process and, in so doing, push
arbitration toward the fate which Feller has suggested.
American Arbitration Association President Coulson has proposed a system
for voluntary arbitration of employee claims patterned around a drafted
submission agreement rather than a collective bargaining contract.2 8 This
system would be available in cases between employees and employers with
no union involvement. In some instances, however, the claimant might be a
job applicant or a group of similarly situated employees represented by an
attorney or a civil rights organization. 'The system would be available to the
many thousands of employees in this country who operate under nonor-
ganized relationships. Coulson points out: "In the relatively small precentage
of cases where the individual claimant is a member of a union, it might
sometimes be beneficial to the union to have an alternate form of arbitration
available in addition to the one contained in the collective bargaining agree-
29
ment."
Unquestionably, a system such as this may have some utility in certain
contexts, particularly considering the enormous backlog facing federal, and
state agencies. Nevertheless, several caveats should be observed. Because
the arbitration would not arise under a collective bargaining agreement pro-
tected by the Taft-Hartley Act,3 0 Coulson thinks that Gardner-Denverwould
not be applicable. 3 1 Coulson notes that courts usually accord binding effect
to awards made by arbitrators acting under submission agreements, in ac-
32
cordance with whatever arbitration statute the court deems applicable.
A court that is uncomfortable with the prospect of a minority grievant
being bound by his or her union's contractual procedure may well give more
credence to an arbitration award stemming from a specific submission
agreement, particularly when the arbitrator has done a reasonably good job
with the law or when, if the arbitrator has erred, it is on the side of stricter
enforcement of Title VII requirements. One is nevertheless ill-advised to

27. In EEOC v. McLean Trucking Co., 525 F.2d 1007 (6th Cir. 1975), the court held that a
grievant who has succeeded at arbitration may not sue for additional benefits under Title VII.
See Williams v. General Foods Corp., 492 F.2d 399 (7th Cir. 1974); Manning v. International
Union, 466 F.2d 812 (6th Cir. 1972); Pearson v. Western Elec. Co., 13 FEP Cases 1200 (D.
Kan. 1974). See also Strozier v. General Motors Corp., 16 FEP Cases 363 (N.D. Ga. 1978),
wherein a district court held that an employee who has accepted a "substantially equivalent"
settlement in arbitration has waived the right to sue under Title VII.
28. Address by Robert Coulson to Southwestern Legal Foundation (Mar. 15, 1978), reported
in DAILY LABOR REPORT No. 51 (Mar. 15, 1978).
29. Id. at E-1.
30. 29 U.S.C. § 461 (1970).
31. Coulson, supra note 28, at E-2.
32. Id.
 CINCINNATI LAW REVIEW [Vol. 47
assume that Coulson's system necessarily will lead a court to conclude that a
grievant has waived his or her statutory rights to proceed under Title VII. In
this regard, it is irrelevant that Taft-Hartley is not involved because a fair
reading of Gardner-Denversuggests that the Supreme Court views the fed-
eral courts as the proper place to dispose of Title VII matters. Whether an
arbitral award comes through a collective bargaining system or an individu-
ally drafted submission agreement, an aggrieved individual will still have two
bites at the apple. As the Court stated in Gardner-Denver: "There is no
suggestion in the statutory scheme [of Title VII] that a prior arbitral decision
either forecloses an individual's right to sue or divests federal courts of juris-
diction." 33
Coulson's system is well worth considering in any number of contexts.
Like standard arbitration, it is quicker, less expensive and potentially more
responsive to local needs than a protracted agency or court proceeding.
Given a specific authorization to the arbitrator, any questions about incorpo-
ration of external law are resolved. Moreover, Coulson's suggestion for a
stipulation includes identification of the arbitrating parties and claims, the
criteria to be considered by the arbitrator, the method of' selection of the
arbitrator and the appropriate hearing procedures. In this manner, the
award would more closelyconfbrm to the standards noted in Gardner-Den-
ver.34 Yet, in the context of a labor agreement, unless the system is applied
only to those instances involving a question of the union's ability to repre-
sent the grievant fairly, this system will suffer the same infirmities as Ed-
wards' two-track proposal.
Arbitration is the substitute for industrial strife or strikes, and parties must
make every imaginable effort to keep the systems procedurally simple. The
requirements of due process and the difficult business of' talking plainly to
one another create a sufficiently arduous task. We need not complicate it
further by the prospect of deciding which procedure goes with which griev-
ant, thereby adding an additional level of potential dispute.
The basic problem in both the Feller and Edwards approaches, and in any
two-track system in the labor-management context, is the assumption that
the function of' labor arbitrators must remain essentially static, notwithstand-
ing the changing face of the agreements they are hired to interpret. A more
realistic approach is to demand modifications by the arbitrators and the
process which they assist in administering. If arbitration is to remain a viable
force in the context of internal-dispute settlement, arbitrators must be ex-
pected to deal with the expanded range of' labor-related problems, including
those encompassing legal concerns. What is required is an expanded concept
of arbitral jurisdiction. Primarily, arbitration exists to serve the parties.
Equally important is the perpetuation of the effective system of industrial

33. 415 U.S. at 47.

34. Id. at 60 n.21.
1978] ARBITRATION CROSSROADS

self-government fashioned by companies and unions. It was the recognition

of this system which, in large part, led the Supreme Court to endorse so
extravagantly the concept of labor arbitration in the Steelworkers Trilogy.
There are additional reasons for parties to demand a more comprehensive
response from the arbitrator. Admittedly, even the highly trained lawyer-
arbitrator may have no more special expertise than would a court or adminis-
trative agency, at least with respect to interpretation and application of
statutory and common law. Nevertheless, the arbitrator is in a better posi-
tion to decide an issue that, albeit legal, is a product of the work place and
is brought to the fore by virtue of the jointly administered grievance proce-
dure. Assuming any breadth in fashioning a remedy, it is the arbitrator, not
the courts or agencies, who is in the best position to fashion the most palat-
able solution, taking into consideration, not simply law, but also the indus- 35
trial relationship to which arbitrators bring a special brand of expertise.
Moreover, despite rising costs and time delays, it is still true that arbitration
is significantly faster and cheaper for all parties than is resort to the external
forum. The Equal Employment Opportunity Commission (EEOC) currently
is staggering under a reported backlog of approximately 130 thousand
cases. 36
Objections to a broader arbitral scope may be characterized as follows.
First, it is alleged that arbitrators generally are not qualified to render deci-
sions in legal matters and that arbitration systems normally do not employ
discovery and other procedures essential to proper litigation of such ques-
tions. Second, it is claimed that matters of public law and policy should not
be established by private arbitrators. These deficiencies, it is argued, will
lead to increased judicial review and an ultimate diminution in judicial con-
fidence in arbitration.
There is some merit to the initial point. An intriguing empirical study
provides some grounds for skepticism as to arbitrators' capabilities in the
Title VII area. 7 Of the 200 respondents to the questionnaire (all of them
members of the National Academy of Arbitrators), only fifty-two percent said
they read labor advance sheets on a regular basis. Fourteen percent indi-
cated they felt competent to define the terms "bona fide occupational qual-
ification," "reasonable accommodations/undue hardship" and "preferential
treatment" and to explain the current status of the law under Title VII with

35. See Newman, Post Gardner-Denver Developments in the Arbitration of Discrimination

Claims, in 28 NAT'L ACAD. ARB. PROC. 36 (1975).
36. Oversight Hearing on Equal Employment Opportunity Before the House Comm. on Edu-
cation and Labor, 95th Cong., 1st Sess. 11 (1977). Ironically, it may be that future claimants
will be offered the option to dispose of their EEOC claims through binding arbitration. The
EEOC is currently considering a program wherein a grievant electing to pursue that route
would stipulate in advance that the hearing would dispose of any outstanding legal or contrac-
tual claims. See DAILY LABOR REPORT (Nov. 22, 1977).
37. Edwards, Arbitration of Employment Discrimination Cases: An Empirical Study, in 28
NAT'L ACAD. ARB. PROC. 59 (1975).
 CINCINNATI LAW REVIEW [Vol. 47

respect to each of these legal terms. Overall, only some seventy-two percent
of the respondents felt competent to decide employment discrimination
claims.38
The sampling was small. In addition, one might quarrel with the premise
of some of the questions: How many judges or attorneys could accurately
define the current state of Title VII law without some degree of research?
Intuitively, however, it is not too much to surmise that the majority of active
labor arbitrators are not intimately familiar with either this or some of' the
other highly complex, relatively new and rapidly changing areas of law.
It is not necessary to dismiss the possibility of arbitrators handling such
matters in the context of a labor grievance. There are those in the profession
who are supremely competent to handle such issues. Because it is the ap-
propriate burden of the parties to administer the contract, it is incumbent
upon them to select the arbitrator with care, inquiring if necessary in ad-
vance to determine his or her sphere of competence and thus proceeding
perhaps more carefully than in the normal selection procedure. This is no
more than a cautious party does in seeking legal counsel in *any context.
At the same time, the arbitration profession must shoulder the burden of
upgrading its standard-bearers. Currently, the National Academy of Arbi-
trators, the American Arbitration Association, the Federal Mediation and Con-
ciliation Service, and various universities and other organizations conduct or
participate in arbitrator-training programs, which assist the neophyte in en-
tering the labor relations field as an arbitrator.3 9 These programs have met
with some degree of success; however, there have been no programs to up-
grade the skills of the journeyman. 40 The National Academy of Arbitrators
has instituted a program of continuing arbitral education to expose its mem-
bership to the varied new statutes that are increasingly relevant to their
work. Assuming that a sufficient number of trained neutrals can be estab-
lished and identified, there should be no real problem in systematizing their
41
training and subsequent participation in legally oriented disputes.
The objection is also made that, regardless of their expertise, arbitrators
should not take on public law issues. Feller thinks that such arbitral in-
volvement will lead to the inevitable demise of the entire system. Edwards
agrees that arbitrators should stay away from the law, but for different rea-
sons. Edwards is concerned that (1) arbitrators may be wrong, and (2) their
errors if honored by a public tribunal through deference to arbitration, may

38. Id. at 72.

39. DISPUTE RESOLUTION TRAINING: SELECTED PROCEEDINGS OF THE SECOND
WINGSPREAD CONFERENCE (C. Gold and R. Lyons ed. 1978).
40. See Bloch, Some Far-Sighted Views of Myopia, in 30 NAT'L ACAD. ARB. PROC. 233
(1977).
41. See, e.g., the suggestions made with respect to a rotating panel of lawyer-arbitrators with
expertise in Title VII matters in Edwards, supra note 22, at 89.
19781 ARBITRATION CROSSROADS

distort the development of precedent. 42 Errors will, of course, occur, and it

may be that deferral will result in the apparent sanctioning of an untoward
result. To a certain extent, these problems can be met by the parties' careful
selection of competent neutrals and the courts' cautious exercise of their
deferral discretion. There is, however, no need to dispute the proposition
that arbitrators should not be defining or otherwise promulgating public law.
They simply are not doing so. Arbitration awards are not systematically re-
ported or cross-indexed in a fashion which would lead to even a potentially
consistent body of precedent. Arbitration is and always has been a private
affair. 43 That the parties have incorporated certain statutes within their
agreement does not make it less private, particularly with Gardner-Denver's
affirmation that such incorporation will not deprive the courts of plenary
jurisdiction.
To avoid potential derogation of statutory rights, it is incumbent upon
federal courts to maintain vigilance with respect to individual rights and to
be consistently willing to review the merits of arbitration cases involving
such rights. Only in this manner may one ensure against de facto infringe-
ment on public rights by private processes. This rather broad review would
constitute greater judicial involvement with arbitral proceedings than arbi-
trators or parties have traditionally expected or desired. Considering, how-
ever, that external law is more of a factor than ever before, this is to be
welcomed as well as expected. While one may have justifiable qualms con-
cerning a court's intervention in contractual matters 'that previously were
handled by arbitrators, there is no reason to conclude that exercise of judi-
cial jurisdiction over the legal questions necessarily will lead to the demise
of arbitration or abandonment of the principles of the Steelworkers Trilogy.

III. JUDICIAL REVIEW

A. Enterprise Wheel and Gardner-Denver
The Supreme Court discussed the scope of judicial review of arbitral deci-
sions in United Steelworkers v. Enterprise Wheel and Car Corp. 44 In urg-
ing restraint by the judiciary, the Court strongly supported arbitration, stat-
ing: "The refusal of courts to review the merits of an arbitration award is the
proper approach to arbitration under collective bargaining agreements. The
federal policy of settling labor disputes by arbitration would be undermined

42. Id. at 90. According to Edwards, the issue "is not whether arbitration will suffer if arbit-
rators go beyond collective bargaining agreements in settling disputes; deferral gives arbitrators
tremendous leeway, and-for reasons of time, expense and ignorance of the law-review is
infrequent. At issue is the private development of public law." Id.
43. But see Summers, Labor Arbitration: A Private Process with a Public Function, 34 REV.
JUR. U.P.R. 477 (1965).
44. 363 U.S. 593 (1960).
 CINCINNATI LAW REVIEW [Vol. 47

if' courts had the final say on the merits of the awards." 45 The endorse-
ment, however, was not unqualified: courts must refise to enforce an award
"when the arbitrator's words manifest an infidelity" to the essence of
the
collective bargaining agreement. 46 In practice, courts have not universally
observed these limited grounds for review either before or after the Steel-
a7
workers Trilogy.
Traditionally, the arbitration profession has argued strenuously against ex-
cessive judicial intervention.4 8 In Alexander v. Gardner-DenverCo., 49 the
Court made it clear that an arbitration award in no way forecloses judicial
consideration. 50 The Court similarly was unequivocal in rejecting a deferral
standard. 5 1 The Court pointed out that in order to ensure eflectuation of'
Title VII rights in arbitration, the arbitral process would necessarily become
procedurally complex, expensive and time consuming. Moreover, said the
Court, "judicial enforcement of such a standard would almost require courts

45. Id. at 596.

46. Id. at 597.
47. Washington-Baltimore Newspaper Guild Local 35 v. Washington Post Co., 442 F.2d
1234, 1239 (D.C. Cir. 1971) (dicta); Electrical Workers Local 453 v. Otis Elevator Co., 314 F.2d
25, 29 (2d Cir.), cert. denied, 373 U.S. 949 (1963); Botany Indus. Inc. v. New York Joint Bd.,
Amalgamated Clothing Workers, 375 F. Supp. 485, 490 (S.D.N.Y.), vacated as moot sub nora,
Robb v. New York Joint Bd., Amalgamated Clothing Workers, 506 F.2d 1246 (2d Cir. 1974);
UAW Local 985 v. W.M. Chace Co., 262 F. Supp. 114 (E.D. Mich. 1966). But see Gulf States
Tel. Co. v. Local 1692, IBEW, 416 F.2d 198; 201 (5th Cir. 1969); Machinists Dist. 8 v.
Campbell Soup Co., 406 F.2d 1223, 1227 (7th Cir.), cert. denied, 396 U.S. 820 (1969); Ludwig
Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 n.27 (3d Cir. 1969); Metal Products Work-
ers, Local 1645 v. Torrington Co., 358 F.2d 103, 106 (2d Cir. 1966); Local 1852, Waterfront
Guard Ass'n v. Amstar Corp., 366 F. Supp. 1026, 1031-32 (D. Md. 1973). Numerous commen-
tators have concluded that labor arbitrators' awards may be overturned on public policy
grounds. See Blumrosen, Public Policy Considerationsin Labor Arbitration Cases, 14 RUTGERS
L. REV. 217 (1960); Griffin, Judicial Review of Labor Arbitration Awards, 4 SUFFOLK L. REV.
39, 62-67 (1969); Jones, The Nature of the Court's 'Jurisdiction"in Statutory Arbitration Post-
Award Motions, 46 CALIF. L. REV. 411 (1958); Markham, Judicial Review of an Arbitrator's
Award under Section 301(a) of the Labor Management Relations Act, 39 TENN L. REV. 613,
636-42 (1972); 53 CORNELL L.Q. 136, 145-47 (1967); Syposium, 58 Nw. U.L. REV. 466, 545-56
(1963).
48. See generally Aaron, Arbitration in the Federal Courts: Aftermath of the Trilogy, 9
U.C.L.A.L. REV. 360 (1962); Gregory, Enforcement of Collective Agreements by Arbitration, 48
VA. L. REV. 883 (1962); Hays, The Supreme Court and Labor Law-October Term, 1959, 60
COLUM. L. REV. 901 (1960); Meltzer, The Supreme Court, Arbitrability and Collective Bargain-
ing, 28 U. CHI. L. REV. 464 (1961); Smith & Jones, The Supreme Court and Labor Dispute
Arbitration: The Emerging Federal Law, 63 MicH. L. REV. 751 (1965); Smith & Jones, The
Impact of the Emerging Federal Law of Grievance Arbitration on Judges, Arbitrators, and
Parties, 52 VA. L. REV. 831 (1966); Wellington, Judicial Review of the Promise to Arbitrate,
N.Y.U.L. REV. 471 (1962); Symposium, 58 Nw. U.L. REV. 466 (1963).
49. 415 U.S. 36 (1974).
50. Said the Court: "There is no suggestion in the statntory' scheme that a prior arbitral
decision either forecloses an individual's right to sue or divests federal courts of jurisdiction."
Id. at 47.
51. Id. at 55-59, and 60 n.20 where the Court specifically declined to adopt the "demanding
deferral standard" of Rios v. Reynolds Metals Co. 467 F.2d 54, 58 (5th Cir. 1972).
19781 ARBITRATION CROSSROADS

to make de novo determinations of the employees' claims. It is uncertain

whether any minimal savings in judicial time and expense would justify the
52
risk to vindication of Title VII rights."
The Court feared that a rule of deference might adversely affect the
arbitration system since employees would bypass the arbitral forum for fear
that it would not adequately protect their Title VII rights. "The possibility of
voluntary complicance or settlement of Title VII claims would thus be re-
duced," said the Court, "and the result could well be more litigation, not
less."53 Assuming that district courts would defer only in cases where Title
VII rights were disposed of by an arbitrator, it is not clear why, given two
bites at the apple, an employee would necessarily bypass arbitration. One
must conclude that the Court tacitly assumed that lower courts' decisions
with respect to deferral would be made, not on the basis of a virtual de novo
review, but rather on a lesser standard which would uphold the arbitral
award merely because it presumptively enforced Title VII rights.
The initial response to Gardner-Denver reflected some concern for arbi-
tration's future. One commentator predicted that the grievance procedure
itself might need restncturing. 54 Others responded to the lack of any de-
ferral standard by stating that "despite what at first glance may appear to be
a downgrading of the arbitral process by the Supreme Court ...the deci-
sion is explicitly limited to the special circumstances concerning discrimina-
tion covered by the Civil Rights Act of 1964." 5 5 Gerald Aksen, General
Counsel of the American Arbitration Association, reminded a concerned au-
dience of' arbitrators that in 1960 the Steelworkers Trilogy had also raised
fears over the continued vitality of arbitration clauses in collective bargaining
agreements. Labor arbitrators, however, had survived and flourished, and
Aksen predicted that Gardner-Denverdid not signal the demise of the proc-
56
ess.
Recently, the increasing awareness that arbitrators may be confronted un-
avoidably with Title ViI issues and other legal matters has led scholars to
express contrary concerns. For example, some scholars worry, not about a
court's refusal to consider the arbitration proceedings, but rather about its

52. 415 U.S. at 59.

53. Id.
54. Coulson, Black Alice in Gardner-Denverland, in 27 NAT'L ACAD. ARB. PRoC. 236, 238
(1975). Choosing Black Alice as his protoype of the minority grievant, Coulson noted that "Black
Alice should not be expected to confront tier after tier of pale, carbon-copy officials. Perhaps
discrimination issues could be shunted into the affirmative compliance office. Or top manage-
ment might be involved at an early stage to convince Black Alice that her claim is being given
high-level consideration." Id. at 238.
55. Gould & Kurtz, Arbitration and Federal Rights Under Collective Agreements in 1973, in
27 NAT'L ACAD. ARB. PROC. 287 (1976).
56. Post Gardner-Denver Developments in Arbitration Law, in 28 NAT'L ACAD. ARB. PROC.
24, 25 (1975).
 CINCINNATI LAW REVIEW [Vol. 47
easy reliance upon them. 5 7 The question remains, then, as to the weight a
district court should accord an arbitral decision.

B. The Weight of the Arbitral Award

The overall impact of Gardner-Denverwas to guarantee a de novo trial in
a case involving Title VII questions. The decision leaves unclear the precise
weight to be granted an arbitration award: "the arbitral decision may be

57. See Edwards, supra note 22, at 81. Early experience with deferral by the National
Labor Relations Board under the Collyer standard suggested such concern was legitimate. In
Collyer Insulated Wire, 192 N.L.R.B. 837, 77 L.R.R.M. 1931 (1971), the Board reversed the
trial examiner's findings of a section 8(a)(5) violation, holding instead that, since the dispute was
based essentially on the terms of the collective bargaining agreement, it should have been
resolved according to the contractually prescribed method. Accordingly, the Board deferred to
the available arbitration process and referred the matter back to the parties. Members Fanning
and Jenkins dissented, maintaining that the majority's deferral doctrine amounted to an abdica-
tion of the Board's statutory responsibility to resolve unfair labor practice charges. The Collyer
doctrine inspired substantial response. See Getman, Collyer Insulated Wire: A Case of Mis-
placed Modesty, 49 IND. L.J. 57 (1973); Getman, Can Collyer and Garner-Denver Co-Exist? A
Postscript, 49 IND. L.J. 285 (1973); Hilbert, The NLRB and Arbitration: The Impact of Collyer
Insulated Wire, 6 GA. L. REV. 469 (1972); Isaacson & Zifchak, Agency Deferral to Private
Arbitration of Employment Disputes, 73 COLUM. L. REV. 1383 (1973); Meltzer, The Impact of
Alexander v. Garner-Denver on Labor Arbitration, 27 N.Y.U. CONF. PROC. 189 (1974);
Menard, National Labor Relations Board-No Longer a Threat to the Arbitral Process?, 23
LAB. L.J. 140 (1972); Miller, Deferral to Arbitration-Temperanceor Abstinence?, 7 GA. L.
REV. 595 (1973); Murphy & Sterlacci, A Review of the National Labor Relations Board's Defer-
ral Policy, 42 FORDIAM L. REV. 291 (1973); Nash, Board Referral to Arbitrationand Alexander
v. Gardner-Denver: Some Preliminary Observations, 25 LAB. L.J. 259 (1974); Newman, NLRB
Deferral to Arbitration in Unfair Labor Practice Cases (Labor's View), 26 N.Y.U. CONF. PROC.
49 (1973); Walther, A New Member Views the Board, 29 N.Y.U. CONF. PRoc. 35 (1976); 88
HARV. L. REV. 804 (1975); 18 WAYNE L. REV. 1191 (1972); 13 WM. & MARY L. REV. 824
(1972).
Recently, however, the Board indicated a possible reconsideration of the breadth of Collyer.
In General Am. Transp. Corp., 228 N.LR.B. No. 102 (March 16, 1977), and in Roy Robinson
Chevrolet, 228 N.L.R.B. No. 103 (March 16, 1977), the Board suggested an unwillingness to
continue deference in cases raising issues of individual rights under the National Labor Re-
lations Act. Moreover, the Labor Relations Law Section of the American Bar Association reports
that, in applying the Collyer doctrine during 1976, "the Board ... refused to defer to existing
arbitration procedures in the vast majority of cases which it heard." 1977 LABOR RELA-
TIONS LAW COMMITTEE REPORTS, Vol. 1, at 25. See United States Postal Serv., 226 N.L.R.B.
1000, 94 L.R.R.M. 1144 (1976); Nissan Motor Corp., 226 N.L.R.B. 397, 94 L.R.R.M. 1254
(1976); Atlas Tack Corp., 226 N.L.R.B. 222, 93 L.R.R.M.. 1236 (1976); Lucky Stores, Inc., 226
N.L.R.B. 205, 93 L.R.R.M. 1245 (1976); Columbia Corrugated Container Corp., 226 N.L.R.B.
147, 93 L.R.R.M. 1232 (1976); Plumbers & Steamfitters, Local 725, 225 N.L.R.B. 1364, 93
L.R.R.M. 1045 (1976); Central Excavating Co., 225 N.L.R.B. 1106, 93 L.R.R.M. 1049 (1976);
Hilde Constr. Co., 225 N.L.R.B. 596, 92 L.R.R.M. 1494 (1976); Retail Clerks Local 588, 224
N.L.R.B. 1638, 92 L.R.R.M. 1381 (1976); Anaconda Co., 224 N.L.R.B. 1041, 93 L.R.R.M.
1139 (1976); Wabash Asphalt Co., 224 N.L.R.B. 820, 93 L.R.R.M. 1254 (1976); Pilot Freight
Carriers, 224 N.L.R.B. 341, 92 L.R.R.M. 1338 (1976); S & M Elec. Co., 223 N.L.R.B. 1499,
92 L.R.R.M. 1207 (1976); Western Exterminator Co., 223 N.L.R.B. 1270, 92 L.R.R.M. 1161
(1976); United States Steel Corp., 223 N.L.R.B. 1246, 92 L.R.R.M. 1158 (1976); A.O. Smith
Corp., 223 N.L.R.B. 838, 92 L.R.R.M. 1160 (1976); Fort Tryon Nursing Home, 223 N.L.R.B.
19781 ARBITRATION CROSSROADS

admitted as evidence and accorded such weight as the court deems appro-
priate." 58 Speaking for the Court, Justice Powell elaborated in a fbotnote,
stating:
Relevant factors include the existence of provisions in the collective-
bargaining agreement that conform substantially with Title VII, the degree of
procedural ftairness in the arbitral forum, adequacy of the record with respect to
the issue of discrimination, and the special competence of particular arbitrators.
Where an arbitral determination gives full consideration to an employee's Title
VII rights, a court may properly accord it great weight. This is especially true
where the issue is solely one of fact, specifically addressed by the parties and
decided by the arbitrator on the basis of an adequate record. But courts should
ever be mindful that Congress, in enacting Title VII, thought it necessary to
provide a judicial forum fot the ultimate resolution of discriminatory employ-
ment claims. It is the duty of courts to assure the full availability of this
forum.59
Applying the Gardner-Denverguidelines, two district courts have reached
different conclusions as to the weight to be accorded arbitral decisions. In
Kornbluh v.Steam and Foster Co., 60 a grievant discharged for falsifying an
employment application submitted his claim to arbitration. The arbitrator
denied the grievance. Subsequently, the EEOC found reasonable cause to
believe the discrimination charges. At trial, the defendant moved for sum-
mary judgment, citing Gardner-Denver and claiming that the arbitrator's
award had conclusively determined every question of fact between the par-
ties. The Ohio district court noted that the union had represented the griev-
ant fairly; that the arbitration proceeding was conducted in a full and fair
fashion; and that the issues of falsification of employment application and of
whether the discharge was retaliatory in violation of Title VII had been fairly
raised and expressly determined adversely to the grievant. The court stated,
however, that even if the record indicated that all of the factors relevant
under Gardner-Denver were satisfied by the arbitration proceeding, this
would not preclude it, in ruling on a motion for summary judgment in a
Title VII case, from examining the record to determine whether any ques-
6
tions of fact existed. '
The approach of a California district court in Fort v. Trans World Airlines,
Inc.,62 provides a different view of how arbitration awards will be regarded.
Plaintiff, a black female, claimed that she had been discharged because of
her race. She grieved and the case was arbitrated. A tripartite board of ar-
bitrators unanimously concluded that, while termination was -overly severe

769, 92 L.R.R.M. 1132 (1976); Graphic Arts Int'l Union, Local 277, 219 N.L.R.B. 1053, 91
L.R.R.M. 1139 (1975); Coast Valleys Typographical Union Local 650, 221 N.L.R.B. 1048, 91
L.R.R.M. 1078 (1975); Hershey Foods Corp., 208 N.L.R.B. 452, 85 L.R.R.M. 1312 (1974). But
see United States Postal Serv., 225 N.L.R.B. 220, 93 L.R.R.M. 1089 (1976).
58. 415 U.S. at 60.
59. Id.atn.21.
60. 14 FEP Cases 847 (S.D. Ohio 1976).
61. Id. at 851.
62. 14 FEP Cases 208 (N.D. Cal. 1976).
 CINCINNATI LAW REVIEW [Vol. 47

under the circumstances of the case, misconduct and insubordination on the

part of the grievant did warrant some disciplinary action. Accordingly, she
was reinstated with seniority but without back pay. The grievant also filed a
charge with the EEOC, which found no reasonable cause for inferring a
Title VII violation. Unsatisfied, she sued in federal district court. The court
noted that a federal policy favoring arbitration and the Title VII guarantees
of a judicial forum for ultimate resolution of discrimination claims presented
potentially conflicting policies. Noting also that Gardner-Denver had at-
tempted to reconcile these conflicts by allowing a federal court.to accord the
arbitral decision "such weight as the court deems appropriate," 63 the court
decided "to give considerable weight to the combined determinations of the
arbitration board and EEOC, especially in the absence of direct or other
persuasive evidence of discrimination against plaintiff." 64 It is not clear
from the opinion whether, in fact, the court examined the record for com-
pliance with Gardner-Denverstandards such as the adequacy of the record
or the degree of procedural fairness in the arbitral forum, but the court
evidently was satisfied that it was safe in concurring with the EEOC and the
arbitrators. While Fort and Kornbluh do not offer a clear elucidation of the
Gardner-Denver approach, the inclusion of the arbitral award as evidence is
not to be discounted. It is thus appropriate to discuss some guidelines which
courts should consider in reviewing arbitral awards.
Clearly, courts must maintain close scrutiny and be willing to vacate
awards which are tainted by misconduct, fraud or gross error. 65 Courts also
must continue their traditional role of invalidating awards in cases of bias,
partiality, improper conduct by the arbitrator at the hearing 66 or misconduct
of the parties which taints the proceedings. 67 Similarly, a court must main-

63. Id. at 212 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974)).
64. 14 FEP Cases at 213.
65. Torrington v. Metal Products Workers Local 1645, 362 F.2d 677 (2d Cir. 1966), is the
notorious case where the court of appeals declared that an arbitrator exceeded his jurisdiction in
finding that past practice bound the employer to pay employees for one hour away from work
on election day. The case inspired a host of anguished commentary. See Aaron, Judicial Inter-
vention in Labor Arbitration, 20 STAN. L. REV. 41 (1967); Jones, The Name of the Game is
Decision-Some Reflections on "Arbitrability"and "Authority" in Labor Arbitration, 46 TEX.
L. REN'. 865 (1968); Meltzer, Ruminations About Ideology, Law, and Labor Arbitration, 34 U.
Cm. L. REV. 545 (1967); Wellington, Judicial Review of the Promise to Arbitrate, 37 N.Y.U.L.
RE'. 471, 483-84 (1962). See also Electronics Corp. v. Electrical Workers Local 272, 492 F.2d
1255 (lst Cir. 1974); Safeway Stores v. American Bakery Workers Local 111, 390 F.2d 79 (5th
Cir. 1968); Amalgamated Clothing Workers v. Winfield Mfg. Co., 77 Lab. Cas. 10938 (N.D.
Ala. 1974); Bell Aerospace Co. v. Local 516, UAW, 356 F. Supp. 354 (W.D.N.Y. 1973)
modified, 500 F.2d 921 (2d Cir. 1974).
66. See Holodnak v. Avco Corp., 381 F. Supp. 191 (D. Conn. 1974), modified on other
grounds, 514 F.2d 285 (2d Cir. 1975).
67. Hines v. Anchor Motor Feight, Inc., 424 U.S. 554 (1976), is the most recent and
perhaps most controversial case in this area. There, the Supreme Court held that an employer
could not rely on the finality of an arbitration award when the union was found to have unfairly
1978] ARBITRATION CROSSROADS

tain vigilance with respect to awards that violate law or seriously contravene
68
public policy.
With respect to the weight attributable to an arbitrator's opinion, a re-
viewing court should carefully notice the arbitrator's handling of the law. At
stake is not only the perpetuation of federal statutes and policies in the
realm of pensions, safety or discrimination, but also the national policy in
favor of internal-dispute settlement. Accordingly, a court should place some
emphasis on the arbitrator's result, regardless of his or her particular treat-
ment of the law. The arbitrator who reaches the right result for the wrong
reason will not necessarily have done an injustice to the law. Concerns over
the precedential effects of such awards are overstated. As indicated earlier,
arbitrators do not forge public policy in what normally are responses to lim-
ited issues. Moreover, in terms of precedent, subsequent arbitrators who are
asked to interpret the law will, as a matter of both necessity and propriety,
turn to court decisions and not arbitral awards.
In cases specifically involving Title VII, it is abundantly clear from
Gardner-Denver that a standard substantially more comprehensive and de-
manding than that of mere "gross error" is required to determine whether
an award is to be given great weight. Thus, as Dean St. Antoine suggests,
different standards should apply, depending on whether the arbitration pro-
ceeding involved Title VII or some other statute.6 9 With respect to arbitral
awards unrelated to statutes dealing with individual and particularly sensitive
rights, the "arbitrator's interpretation of either contract or external law
should have the same finality as it does between the union and the em-

represented the grievants in the arbitration proceedings. See also Brieski v. Eastern Auto For-
warding Co., 396 F.2d 32 (3d Cir. 1968).
68. E.g., Botany Indus. Inc. v. New York Joint Bd., Amalgamated Clothing Workers, 375
F. Supp. 485 (S.D.N.Y.) (award violating NLRA held void), vacated on other grounds, 506 F.2d
1246 (2d Cir. 1974). See also La Mirada Trucking, Inc. v. Teamsters Local 166, 538 F.2d 286
(9th Cir. 1976). Courts have also considered the impact of other federal and state laws in hear-
ing challenges to arbitral awards. See Associated Milk Dealers v. Milk Drivers Local 753, 422
F.2d 546 (7th Cir. 1970) (Sherman Act); UAW Local 985 v. W.M. Chace Co., 262 F. Supp. 114
(E.D. Mich. 1966). Cf. UAW v. Avco Lycoming Div., 66 Lab. Cas. 11922 (D. Conn. 1971).
69. St. Antoine, Judicial Review of Labor Arbitration Awards: A Second Look at Enter-
prise Wheel and Its Progeny, in 30 NAT'L ACAD. ARB. PRoc. 29 (1977). In Satterwhite v.
United Parcel Serv., Inc., 496 F.2d 448 (10th Cir. 1974), cert. denied, 419 U.S. 1079 (1975),
the court held that an employee's right to sue under section 16(b) of the Fair Labor Standards
Act (FLSA), 29 U.S.C. 216(b) (1970), was foreclosed by prior submission of the claim to final
arbitration under the grievance procedure established by the governing collective bargaining
agreement. The court distinguished the wage-and-hour provisions of the FLSA from the anti-
discrimination provisions of Title VII. According to the court, overlapping or parallel relief was
specifically intended in Title VII, as evidenced by the provision for independent statutory re-
medies apart from the contractual processes. The court found no similar provision in the FLSA,
which suggested greater reliance on contractual remedies and less reliance on individual en-
forcement under the Act. The court also found that disputes over wages and hours did not
involve considerations of public law. Because such disputes are "readily adaptable to arbitra-
tion," reasoned the court, "[r]esort to judicial process after arbitration prolongs the controversy
and serves no good purpose when the arbitral and judicial proceedings arise out of, and must be
 CINCINNATI LAW REVIEW [Vol. 47

ployer." 7 0 In such a case, a court may dispense with the merits of a dispute
and direct itself solely to the question of whether the procedural conditions
have been met: jurisdiction, authority, honesty, fairness and basic rational-
71
ity.
St. Antoine thus recommends that a court base its standard of review of an
arbitral award upon the nature of the external law involved. This system
overcomes the practical difficulties inherent in Edwards' two-track system 72
by shifting the line-drawing responsibilities from the parties to the judiciary.
The difficulty with Edwards' system is that it is either impossible or imprac-
tical for the parties to bifurcate their contractual procedures. Courts, on the
other hand, are in the appropriate position to monitor and, if necessary, to
modify arbitral pronouncements on external law simply by judging the ex-
tent to and manner in which they will intercede in a given case.
If an award is true to Title VII precepts, a court should give it great
weight. The standards applied by the reviewing court should parallel those
of any appellate body reviewing the findings of a lower tribunal. One poten-
tial distinction merits discussion. Gardner-Denverpresumes an unsuccessful
arbitration grievant bringing his or her claim to court. It is also possible,
however, that a grievant will be successful but the company will refuse to
implement the award. In such a case, court action by the grievant may be
based wholly or in part on section 301 of the Labor-Management Relations
Act 73 (LMRA). Thus, the plaintiff will be seeking, not to litigate the merits
of the grievance, but merely to enforce the contract provision establishing
binding arbitration. In that event, a court should exercise a substantially
more limited review of the arbitration proceedings. That is, a court may,
with some justification, invoke the Supreme Court's admonition in Enter-
prise Wheel: "It is the arbitrator's construction which was bargained for; and
so far as the arbitrator's decision concerns construction of the contract, the
courts have no business overruling him because their interpretation of the
74
contract is different from his."
Although Title VII principles are involved in such a situation, the issue is
not whether Title VII rights have been violated; the error, if any, is that the
arbitrator applied a higher standard than the law demands. Even if the court
enforces an award that imposes a higher standard of conduct than that re-

decided on, the same factual background." Id. at 451-52. Accord, Union de Tronquistas Local
901 v. Flagship Hotel Corp., 554 F.2d 8 (1st Cir. 1977); Atterburg v. Anchor Motor Freight
Inc., 425 F. Supp. 841 (D.N.J. 1977); International Longshoreman's Ass'n Local 1575 v. Sea-
Land Serv. Inc., 430 F. Supp 282 (D.P.R. 1975). But cf. Brennan v. Alan Wood Steel Co.,
[1975-1976] OSH Dec. 20, 136 (E.D. Pa. 1975) (deferral to arbitrator's decision is at most
discretionary in OSHA cases).
70. St. Antoine, supra note 69, at 52. It remains to be seen whether any statute besides
Title VII confers such highly personal rights on individuals. See note 69 supra. See also Thomas
v. Louisiana, 534 F.2d 613 (5th Cir. 1976).
71. St. Antoine, supra note 69, at 52.
72. See Text 11 C supra.
73. 29 U.S.C. § 185 (1970).
74. 363 U.S. at 599.
19781 ARBITRATION CROSSROADS

quired by the statute, it will not be sanctioning conduct that violates the
law. Nor will enforcement of such an award violate public policy. 75 At the
same time, this accords finality to the arbitration process, a goal specifically
76
endorsed by Congress.
This approach is reflected in Teamsters v. Washington Employers Inc. ,77
in which the parties stipulated that the arbitrator should decide whether the
employers association's failure to pay the full amount of a specified wage
increase while awaiting a Pay Board decision constituted a violation of state
law. The arbitrator found the employers association had violated the law.
The employers association refused to implement the award and the union
sought enforcement pursuant to section 301 of the LMRA. The district court
78
refused to enforce the award and set it aside.
On appeal to the United States Court of Appeals for the Ninth Circuit,
the employers association argued that, in providing for punitive damages,
the state statute conflicted with the remedial purposes of federal labor pol-
icy. The employers association also argued that, in the interest of uniformity
of federal substantive law, the LMRA must be found to preempt all state
legislation in the same field. The Ninth Circuit held, however, that, having
agreed to be bound by the arbitrator's interpretation of state law, the parties
had to live with that interpretation. 79 By their stipulation, the parties had
granted the arbitrator jurisdiction to decide the legal issues. Additionally,
the court noted the essentially private effect of enforcing the award, not-
80
withstanding involvement of state and even federal labor questions.

75. Compare Local 453, Int'l Union of Elec. Workers v. Otis Elevator Co., 314 F.2d 25 (2d
Cir.), cert. denied, 373 U.S. 949 (1963) with Black v. Cutter Laboratories, 43 Cal. 2d 788, 278
P.2d 905 (1955), appeal dismissed, 351 U.S. 292 (1956).
76. Section 203(a) of the Labor Management Relations Act. 29 U.S.C. § 173(d) (1970),
states: "Final adjustment by a method agreed upon by the parties is declared to be the desir-
able method for settlement of grievance disputes arising over the application or interpretation of
an existing collective bargaining agreement." See Aaron, supra note 65; Blumrosen supra note
47; Meltzer, supra note 65; 114 U. PA. L. REV. 1050 (1960).
77. 96 L.R.R.M. 2096 (9th Cir. 1977).
78. Id.
79. Id. at 2099.
80. The court stated:
Although it is arguable that the application of state statutes such as those at issue
would frustrate the federal interest in a uniform federal law of collective bargaining
agreements, the effect of enforcing this award is de minimis, the award bind [sic] only
the parties to this arbitration and governs only one transaction which is now remote in
time. Should a similar situation arise again, the Employers.will be free to raise any
such objections. Similarly, although we recognize that the federal labor laws are gener-
ally remedial in character and that in some circumstances an award of punitive dam-
ages might serve as an irritant in continuing labor relations, we do not think that the
cause of industrial good will would be greatly aided by striking down this award. Fi-
nally, we think that the strong federal policy in favor of the peaceful and speedy reso-
lution of industrial disputes through binding arbitration far outweighs any adverse im-
pact.
Id. at 2100.
 CINCINNATI LAW REVIEW [Vol. 47

IV. PROBLEMS RAISED BY AN EXPANDED ARBITRAL ROLE

Expanded arbitral jurisdiction is not without problems. Arbitration in this
country had as its genesis a corps of knowledgeable and capable individuals
who were steeped in the "common law of the shop," a characteristic which
remains the common denominator of the widely accepted labor arbitrators
today. The same thing may not be said with respect to expertise in the
emerging area of labor-related external laws. Successful implementation of
this broader arbitral function will require a cadre of individuals trained in
these areas. Probably most of these individuals will be lawyers, and it is a
fair bet that arbitration of these issues will become more structured and
legalistic. This should not raise the specter of' a mass decline in informal
grievance procedures for, in the final analysis, a relatively small percentage
of grievances require arbitration of legal issues. For those matters that do
proceed to arbitration on the legal issues, arbitrators will have to be selected
with far greater care than is currently employed in the normal course of
events. Conceivably, efforts by the American Arbitration Association, the
Federal Mediation and Conciliation Service and other appointing agencies,
will result in the compilation of specialized lists of neutrals capable and will-
ing to handle these types of disputes.
Presentation of these disputes will place added burdens on the parties as
well. Most grievance procedures are not structured to be responsive to the
preparation of legal-based disputes. If greater sophistication is demanded of
the arbitrator, it follows that lawyers may inevitably become more involved
in the presentations, with attendant increases in preparation time and ex-
pense of preceedings. To this, one can only respond that increased attorney
involvement is a factor in any event, whether it be companies responding to
a Title VII action or unions defending a fair-representation suit.
The nature of the arbitration opinion also will be affected. Assuming the
increased likelihood of judicial review, arbitrators will write more "protec-
tively." Opinions may be longer, the time consumed in their preparation
will be greater, arbitration fees will increase. To this extent, arbitration of
discrimination grievances may appear to lose some of its luster as a viable
alternative to the courts. Still, even an expanded arbitration process is an
attractive alternative in view of the backlog and expense of agency and court
proceedings because of the possibility that, after all, the matter may be set-
tled at the arbitration stage and of the overall benefit of' providing a griev-
ance procedure open to all workers.
What is required, then, is careful reassessment by companies and unions
of the goals of their present grievance procedure and the alternatives
thereto. It may be, of course, that individual parties will opt for contractual
limitations on the right of' an employee to arbitrate discrimination matters.
Such a decision might, in the appropriate case, be called for despite the
implications with respect to strikes."' Nevertheless, the simple claim that
81. To the extent the arbitration clause exists as the quid pro quo for the right to strike,
absent some other contractual restriction, a company must be prepared to consider the prospect
of "minority strikes."
1978] ARBITRATION CROSSROADS

arbitrators currently are unqualified to hear these disputes is not compelling.

Certain arbitrators most assuredly are qualified to respond to the legal is-
sues.
To the extent that additional training is needed, parties should consider
making the training available themselves. Historically industry and labor
have cooperated in the establishment of apprenticeship programs for rank-
and-file workers. It requires but a modest stretch of the imagination to con-
ceive of a training program sponsored by the same parties, devoted to the
further edification of those neutrals who will be serving them in contract
administration.
As indicated earlier, judicial intervention, at least in the Title VII area and
potentially in others, is predictable and, in view of the particularly sensitive
individual rights involved, should be welcomed. In a very real sense, this
type of intervention will, in the long run, support the arbitration process and
the labor relationships which give rise to it. If support is to come, however,
it will only arise in response to confident, knowledgeable and fair work on
the part of the arbitrators and the parties. The arbitrators and the parties
share the responsibility of producing sound decisions which, whatever their
use, are viewed with confidence by the federal judiciary. This responsibility
does not signal the decline of the so-called Golden Age of Arbitration. To
the contrary, it is a unique invitation to contribute to the proper administra-
tion of this unique mix of private and public law.

V. CONCLUSION

The problems inherent in accommodating the arbitration process to the

new and knotty issues posed when arbitrators confront federal or state stat-
utes in the context of contract interpretation are by no means insignificant.
One need not, however, conclude either that arbitration must surely die or
that its salvation depends upon excluding minorities from the standard griev-
ance processes. As labor-related external laws find their way into collective
bargaining agreements, those who interpret and administer the agreements
must be properly trained, then identified and selected to handle such dis-
putes. Recognizing that rights of a particularly individualized nature may be
involved and remembering that such rights may be directly aligned with
federal or state statutes, courts must maintain a close watch to avoid
infringement to the extent that arbitral pronouncements do an injustice to
external statutes.
All of this-increased formality, arbitral involvement with external law
and increased judicial intervention-is in stark contrast to the standard and
fondly held assumptions concerning labor arbitration. This expanded function
for the arbitrator should properly remain a relatively minute portion of the
overall grievance-arbitration picture. In this important, albeit limited, con-
text, it nonetheless must be recognized that the attempt to retain traditional
concepts of the arbitral role in light of the present-day realities of industrial
384 CINCINNATI LAW REVIEW [Vol. 47

relations is ill-considered. The question is not, as has been suggested,

whether the arbitration process will survive. The question is whether suc-
cessful industrial dispute-settlement systems are to be maintained and
whether effective private self-governance shall exist in times of increasingly
imposing externalities. Nor does the answer lie in modifying the parties'
relationship to carve out a large portion of grievances which, although they
allege discrimination and are therefore cognizable under federal or state law,
are nevertheless the product of the work place. It is the arbitration process
which must be modified and expanded to respond to the needs of the par-
ties. Failure to do so will jeopardize the national goal of' settling industry-
related disputes within the parties' privately administered system.