The Grievance Procedure and the Supreme Court: A Theory of Collective Bargaining

The Grievance Procedure and the Supreme Court- A Theory of Collective BargainingThe Grievance Procedure and the Supreme Court: A Theory of Collective Bargaining

Robert V. Nally

LABOR ARBITRATION as the final step of a grievance procedure has been defined by the United States Supreme Court and distin- guished from commercial arbitration in regard to nature and purpose:

In the commercial case, arbitration is the substitute for liti- gation. Here arbitration is the substitute for industrial strife. Since arbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement, the hostility evinced by the courts toward arbitration of commercial agreements has no place here. For arbitration of labor disputes under collective bargaining agreements is part and parcel of the

collective bargaining process itself.’

This view of labor arbitration has not, however, received unani- mous endorsement by the Court. In a dissenting opinion Mr. Justice Whittaker stated:

This is an entirely new and strange doctrine to me. I suggest, with deference, that it departs both from the contract of the parties and the controlling decisions of this Court. I find nothing in the contract that purports to confer upon arbitrators any such general breadth of private judicial power. The Court cites no legislation or judicial authority that creates for or gives to arbitrators such broad general powers.’

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