West Virginia Law Review

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During the Second World War labor arbitration came to prominence in the United States as an important means of resolving disputes between labor and management. In the post-War years it gradually achieved a pre-eminent position in the American collective bargaining system, finally acquiring the imprimatur of the Supreme Court in 1960. Crucial to the Court's rationale for requiring virtual judicial abstension in regard to labor arbitration was its perception of the arbitration process as an informal and flexible system manned by arbitrators who were in possession of a high level of competence in the realities of labor relations. This view of arbitral expertise was not seriously challenged until the Court's decision in Alexander v. Gardner-Denver Co. in which it was held that prior submission of a minority person's dispute with a company to arbitration under the terms of a collective bargaining agreement did not foreclose access to federal court under the provisions of Title VII of the Civil Rights Act of 1964. The essentially private machinery of labor arbitration was felt to be inadequate for coping with the important public policy issues behind employment discrimination legislation. The Supreme Court, however, did not totally deny any useful role to labor arbitration where minority rights were concerned. In its famous Footnote 21 of Gardner-Denver, it stated that varying degrees of weight would be accorded an arbitrator's award insofar as certain criteria were met. One such criterion was the "special competence of particular arbitrators." This Article examines the competence which labor arbitrators are said to possess generally, with particular reference to its potential for application where employment discrimination is also involved, in the hope of shedding some light upon the "special competence" requirement of Footnote 21. Such an undertaking demands, of necessity, an analysis and evaluation of the total process within which arbitral competence is exercised. Relevant aspects of this will therefore be considered. Part I will deal with arbitral expertise as manifested in the resolution of disputes over the interpretation and application of the terms of collective agreements and will include evaluations of this traditional function of the arbitration system from the sometimes varying viewpoints of the courts, labor and management, arbitration scholars, and some of the more celebrated critics of labor arbitration. Part II will examine features of the arbitration process which might serve to detract from its usefulness as an adjudicative mechanism where employment discrimination matters are linked to disputed terms of a collective agreement-such as evidence admission and procedure at the arbitration hearing-and which therefore highlight the nature of judicial concern as to the adequacy of arbitration to redress discrimination. Also examined is the caution expressed by the Court in relation to the qualifications of labor arbitrators in dealing with the more stringent requirements of Title VII, as opposed to the purely voluntary objectives of collective agreements. Part III will consist of an analysis of the problems involved in attempting to construct an accommodation between the function for which labor arbitration was originally established and the public policy objectives of Title VII, as well as an evaluation of the impact of arbitral competence in this controversial area.



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