ARBITRATION 2003ARBITRAL DECISION-MAKING:

CONFRONTING CURRENT AND RECURRENT ISSUES

ARBITRATION 2003ARBITRAL DECISION-MAKING:

CONFRONTING CURRENT AND RECURRENT ISSUES

PROCEEDINGS OF THE FIFTY-SIXTHANNUAL MEETING

NATIONAL ACADEMY OF ARBITRATORS

San Juan, Puerto Rico June 4 , 2003- 7

Edited by

Charles J. Coleman

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v

In Memoriam

David E. Feller1916–2003

ARBITRATION 2003vi

David Feller was so well known that nothing more need ever besaid; yet one can never say enough. By all accounts, he was aremarkable man. Like everyone else, the three of us were honoredto know him. He was a joy to behold in action—even when hedisagreed with us. We have tried in these few words to look at hislife as an advocate, as a teacher and arbitrator, and as a man.

After graduating from the Harvard Law School, and spendingseven years in university teaching, Army intelligence, and theJustice Department, he became clerk to the Chief Justice of theUnited States Supreme Court, Fred Vinson. After his clerkship hebecame a lawyer for the CIO and the Steelworkers, later forminga partnership with Arthur Goldberg and Elliot Bredhoff. Daveloved to relate how Goldberg said he wanted “an Irishman who cantalk fast in a loud voice about things he knows nothing about.” Amutual friend, Tom Harris, exclaimed, “That’s David Feller!” Davewas hired and the string of Supreme Court victories began.

The crowning achievement of Dave’s career as an advocate wasthe Steelworkers Trilogy (1960). Dave argued in all three cases, withElliot Bredhoff joining him in one. The Trilogy placed the imprima-tur of federal law on the labor arbitration process. When the briefsin those cases are compared with the words of the decisions, thesimilarities are striking. Dave said that on the day of the decision,he walked out of the Supreme Court and thought: “I’ll never topthis. It would be only fitting if I were struck dead on the spot!” Weare all so thankful that we had 43 more years.

In 1967 Dave decided to move to Berkeley and become a lawteacher and labor arbitrator. The jaunty warrior proved a masterof this new world as well. He was a masterful teacher, but what wasextraordinary was the care with which he fulfilled that role. Mostof us have experienced the arrogance of the academic who eagerlyawaits and relishes the opportunity to expose and skewer theignorance of the uninitiated. As Dave’s students will tell you, he wasnot at all like that. You were there to learn, not to be demeaned. Hewas not just a teacher, but a mentor as well. Helping students, longafter they had left his classroom; critiquing what they had done intheir lives; aiding the furtherance of their careers; always at theready when they asked for guidance, advice, or counsel; never toobusy; never ready to say no.

As an arbitrator, he brought his intellect and his innate sense offairness to bear on a myriad of problems. Whatever the case, hisopinions were models of clarity: well reasoned, expressive, andfully engaged—not just with the issues, but with the consequenceshis ruling would have on the lives of those involved. Perhaps ofeven greater worth during those years were his writings in the

IN MEMORIAM vii

Academy Proceedings and elsewhere, as well as the briefs he authoredin our limited forays as amicus before the Supreme Court and thecircuit courts of appeal. One cannot read The Coming End ofArbitration’s Golden Age (1976) without marveling at his prescience.Long before Gilmer, long before the rise of mandatory arbitration,Dave was saying that more intrusive judicial review was on the wayprimarily because of the rise of statutory issues finding their wayinto the collective bargaining context. The amicus briefs revealanother aspect of his capability. His ability to virtually divine wherethe Court was going and what would appeal to its members wasextraordinary. From Misco, to Wright, to Garvey, the Court listened.In those briefs, he served not only the Academy, but also the causeof collective bargaining and arbitration.

Dave Feller delighted in intellectual pursuits, almost shaking withglee over the appeal of a new thought. He was the most approach-able professor, scholar, mentor, and friend anyone could knowbecause his standard of discourse was that, not what, you thought.New colleagues in the Academy inclined at first toward due defer-ence (most likely owing a good part of their professional existenceto Dave’s work on the Steelworkers Trilogy) were quickly drawn closeto him by his warmth, his humor, and a friendly magnetism thatdisdained formality. The ferocity with which he attacked and shookintellectual problems and challenges was matched and betteredonly by his ability to ring another hour and another ounce out oflife.

In the memories of everyone who ever met him is indeliblyemblazoned the picture of Dave—suspenders, bow tie, standingbefore us, hands in his pockets, speaking his mind. Good faith,good cheer, good sense—he was a man we were lucky to haveknown. News of his death inspired a remarkable outpouringwithin this Academy. There were the expressions of love and loss,messages and memories, but conspicuous by its recurrence was thetheme voiced by so many who had entered Dave’s presence in aweand had left in love. The note George sent to Gilda was only ninewords. It read, “O, Gilda, we are all crying in New York.” We willremember Dave, as will the academic world and companies, unions,lawyers, and judges all over the world.

Richard I. Bloch, George Nicolau, andTheodore J. St. Antoine*

*Adapted by the editor from Three Presidents Remember David Feller, The Chronicle(Spring 2003).

viii

In Memoriam

Milton Rubin1917–2003

IN MEMORIAM ix

Past President Milton Rubin died on October 17, 2003, at the ageof 86. His death was caused by the sudden worsening of aninoperable physical condition, of which he had been aware formany months and which he had tolerated with superb courage andsage equanimity. Just 1 week earlier, I had spent the day with Miltand his wife, Freda, at their Croton-on-Hudson home, every roomof which reflected their creative attachment to widely diverseexpressions of art, crafts, and literature—enhanced by an enchant-ing and expertly nurtured garden. On that sun-filled Saturday,Milt was in fine spirits, looking forward to planned travel and familyactivity with optimism and enthusiasm. To believe that he lived afull life is an inadequate conclusion, for Milton Rubin relished thechallenging experience of at least three aspects of living.

His multilayered life began with his college education at NewYork University, where he earned a B.A. degree in economics in1938, simultaneously earning sufficient credits to become a teacher(the “safe” profession of the Depression years). As in high school,he was an avid musician, with a cherished aim to make music hisprofessional career. First, however, came several years as assistantprofessor at Hofstra University and lecturer at Rutgers Univer-sity. (Later, in 1946, he found time to acquire an M.A. degree atN.Y.U.)

World War II started Milt on his arbitration career. A minorphysical problem prevented his entering military service, and, by1941, he was working with the Wage and Hour Division of theDepartment of Labor. A year later, Professors Lois McDonald andEmanuel Stein recruited him for War Labor Board service inRegion 2, under the leadership of Walter Gellhorn and TedKheel—all of whom became integral leaders in postwar laborrelations. Milt’s first arbitration case came in 1943, while he waswith the Labor Board. Soon after the war, he was sponsored for theAmerican Arbitration Association arbitration panel by Stein andGellhorn, and his arbitration career of six decades was well under-way. His membership in the Academy came in 1955.

Milton’s initially recognized expertise was in the field of time-and-motion study (now somewhat arcane but of great significancethen), but his dispute resolution experience quickly diversified.Among his many extended prestigious roles (yes, he put a bit ofstage performance in his hearings) were as “Mr. Impartial” of theNew York City and Northeast Dress Industry and as arbitrator,mediator, and father confessor for the New York City Fire Depart-ment and the Fire Fighters and Fire Officers Unions. Other long-

ARBITRATION 2003x

standing panel assignments were with the New York City Board ofEducation, United Technology, American Airlines, TWA, theUnited States Postal Service, and Americana Flag Shipping andtheir unions.

Milt faithfully served the Academy in many productive capaci-ties, including his leadership in creating the Legal Representationprogram; serving as Chair of the Designating Agency Liaison,Auditing, and Nominating Committees; and culminating in histerm as Academy President in 1997.

A second aspect of Milt’s life was as a raconteur, mentor, and rolemodel for arbitrators, advocates, and anyone else with the goodsense to listen to him. He spun the usual “war stories” into hilariousand exquisite yarns—each with an underlying element of wisdom.While doing so, he made certain to avoid the temptation of makinga show of stuffy self-importance. This is epitomized by one of hisstories, recently recalled by an Academy colleague. Milt told oftaking his elderly father with him to observe a hearing. As luckwould have it, the parties, after opening statements, disappearedinto the corridor to attempt settlement. Milt chatted with thestenographer and a couple of witnesses, read the newspaper, andmade telephone calls. After a hour or two of this, Milt said, hisperplexed father turned to him and asked, “They pay you for this?”

Nothing pleased Milt more than to make his colleagues recon-sider accepted beliefs and practices. If this annoyed his listeners,so much the better; at least they were forced to take a fresh look.Just one example: Milt’s Presidential Address questioned thecurrent emphasis on “due process,” wondering whether the expe-rienced arbitrator’s ability to provide a “fair and adequate” hearingdid not better serve the parties’ interest.

The third aspect of life was the one Milt shared privately withFreda in their marriage of 58 years. Their passionate interestsincluded gardening (Freda taking the lead part in their imagina-tive, ever-expanding garden and Milt in his house-attached green-house); collecting Hiroshigi Japanese prints (for which they madea trip to Japan); antique and contemporary art glass; searching forand collecting rare books (involving for a while the booksellingfirm of Rubin and Rubin); ornithology (with expeditions toTrinidad, the Everglades, England, and the Negev); and activeinvolvement in the Jane Austen and Elizabeth Gaskell LiterarySocieties. Not to be overlooked is Milt’s early musical talent, whichincluded playing as clarinetist and saxophonist in the bands of Fats

IN MEMORIAM xi

Waller, Jimmy Lunceford, and Vincent Lopez. (The choice be-tween a life in music and one in arbitration was a close call.)

Integral to the private world of Milt and Freda were theirchildren: Dena, professor at Cleveland-Marshall College of Law;David, a New York State Health Department official, and his wife,Alice; and three grandchildren, each with special accomplish-ments proudly recounted by their grandparents.

Milton Rubin—a Renaissance man and a dispute resolutioneminence, an entertainer and a cultural devotee, a buoyant tellerof tales and a perceptive skeptic. He will be missed and remem-bered as a unique treasure by all whose lives he touched andenhanced.

Herbert L. Marx. Jr.

xii

In Memoriam

Anthony V. Sinicropi1931–2003

IN MEMORIAM xiii

Often, while I lived in Iowa City, Tony Sinicropi would call andsay, “Marvin, let’s take a ride,” which meant, “Marvin you drive myLincoln [generally east, to West Branch, home of Herbert Hoover],and we’ll listen to music.” The music was either Big Band orSinatra. Either case produced the same result: Tony riding shot-gun, mimicking playing the clarinet, his hands going a mile aminute, body moving side to side, eyes on fire. When he stopped“playing,” he would point out who was on first trumpet, bass,percussion, etc., in the orchestra. Then, he somehow would tracetheir history back to New York and sometimes even to St.Bonaventure’s in Olean, New York, his hometown.

Every time we heard Sinatra he asked the same question: “Do youknow why he is the best?” “Because he’s Italian?” I responded,knowing it was not the answer, that there was more. There wasalways more. “Tommy Dorsey taught him to breathe”; “he singsahead of the music”; “his intonation and diction are the best”; “heenunciates the consonants; listen carefully to the “t’s”; “he onlysings with the best bands, Dorsey, Harry James, Count Basie (‘youknow it’s Basie by the dirty trombones,’ he would point out),Nelson Riddle (‘the reeds will tell you—listen’)”; “he always givescredit to the arrangers, Quincy Jones, Billy May, Johnny Mandel,Don Costa”; “he sings of loneliness, love, and heartbreak like heknows”; “he is an institution, a part of our past, but I think he’sprobably a rotten person”; “Ava Gardner drove him nuts.”

There were so many ways to love Tony Sinicropi, but a music andSinatra bond had no envelope. (Later in our lives I would reversethe quiz and ask him if he knew why Sinatra was the best, telling himto listen to what I had to say. “Smart ass,” he would joke, remember-ing who I got it from.) I also reminded him late in life that he shouldseek out Sinatra’s used hairpieces—he (Frank) reportedly owned60. More comments about being a smart ass. I loved the banter and,even though a little guy, he could dish it with the best. One morereason to love him.

Once, toward the end of his life, he queried whether Sinatra, inhis advanced age, felt bad when he heard himself sing when he wasin his prime (40s in Tony’s opinion), knowing he could no longersing like he did. “Or,” asked Tony, “did he look back and reflecthow good he was when he was younger, and feel happiness at hisaccomplishments?” Whatever Sinatra felt, Tony was happy at whathe accomplished, personally and professionally. But he alwayswished his father was alive to see his Italian kid “make good.” All ofus who knew him as a friend and colleague saw this New York kid

ARBITRATION 2003xiv

make good. His life for many of us was “as vintage wine from fineold kegs.” (“It Was a Very Good Year,” lyrics by Ervin Drake,arranged by Gordon Jenkins. Anyone who wrote with Tony knewhe just hated footnotes.)

There was no middle ground with Tony Sinicropi, at least noneI can remember, on anything that mattered. Hanging around Tonyusually resulted in your knowing exactly where he stood, oneverything from abortion and marijuana (against and againstsquared) to the Green Bay Packers (big-time love affair here, butit had to do with Lombardi). Maybe his best quality was that he“stood for something,” and, more important, he always would tellyou where he stood and would generally comment, “What does thatguy stand for?” (often in reference to Bill Clinton or some ballplayerwho was not putting out the effort Tony thought he was capable of).There was never a half-hearted anything with Tony. He did every-thing like “it mattered,” and, more important, he would tell mewhat should matter in my life. Looking back, he was on the rightside of every important issue.

Finally, there is the integrity and loyalty thing. You could alwaysdisagree with Tony and he would be up for the argument. Godknows, he disagreed with me all the time, often calling me nameswith words I had to look up (“incorrigible”) or with words I had toask my mother what they meant (when he was mad at me and spokeItalian—can’t print the words here). But, like Sinatra, you couldnot claim him as a friend if you were disloyal, even to the people hedid not care for. This was more than an “Italian thing.” It was a“Tony thing.”

Death can be selfish. We tend to remember our departed friendsin terms of how they made a difference in our lives. You rememberevents and times that shaped you, the good times, the times thatmattered, rather than what the other person was to someone else.If you love someone dearly, there are lots of memories and eventsthat really end up defining you. They stand as markers in our lives,a part of us to be taken to our graves.

He is in my soul like a Sinatra song.

Marvin F. Hill, Jr.

On July 31, 2003, at age 72, Tony Sinicropi died peacefully,watched over by those he loved most—his wife, Marge, and his sixchildren. He was a 5'5" giant at the height of his powers.

IN MEMORIAM xv

Tony had a first-rate mind. You could talk to him about anything.He was interested and knowledgeable about philosophy, politics,literature, history, gourmet cooking, and music. He loved tellingstories about his family and early days in Olean, New York. Younever tired of hearing Tony’s tales, which he told with affection,humor, and great pride. He was especially proud of his heritageand loved everything Italian.

While most of us arbitrate in well-defined areas, Tony arbitratedacross the United States—such was his stature. About 8 monthsago, when his gallant battle against cancer weakened him and helacked the strength to travel to hear a scheduled case of consider-able importance, the parties sent the corporate jet to the PalmSprings airport to bring him to the hearing. What a tribute to thesound judgment evident in all of his decisions.

Everybody loved Tony—a feeling expressed in the truly remark-able outpouring of affection, respect, and remembrance by thepeople whose lives he touched. He was a frequently quoted scholar,beloved professor, highly respected arbitrator, devotedhusband, father, and grandfather, and a very special friend.

Howard S. Block

xvi

In Memoriam

Arthur Stark1919–2003

IN MEMORIAM xvii

Arthur was a lovely presence in my small world. For some 35years, we talked and then talked again and again about family,work, feelings, about our good and bad days. Out of that sharing,I came to know and appreciate him.

Absolutely no one in my universe was as consistently reasonableas he was. The genetic part I cannot speak to, although his fatherwas one of the very first newspaper reporters to cover the nationallabor-management scene. The analytic part was no doubt theproduct of the Fieldston School, the University of Chicago, theNew York State Board of Mediation, and countless other influ-ences. However it happened, he had an extraordinary sense ofwhat was the most workable, the most sensible, answer to a prob-lem. Had I been personally involved in any kind of dispute, I wouldhave gladly placed my fate in his hands. Beyond words, beyondreason, beyond self, good judgment involves a fundamental senseof fairness and perspective. Arthur had those qualities in spades.

No less impressive was his ability to hear people out, no matterhow strange or woolly their views. Arbitrators are trained to do that.But Arthur did it with grace and restraint, a true respect for theother person’s words. That is the hallmark of a first-rate listener. Isat as a member of the Foreign Service Grievance Board whenArthur was Chairman; I sat as a member of the Academy’s Commit-tee on Professional Responsibility when Arthur was Chairman. Iwatched him guide a group of disparate minds to consensus onhighly contentious issues. It was almost as if committee memberswere rewarding him for the respect and patience he had alwaysshown them. I could not help but judge his performance. He neverdisappointed me.

The remarkable range of assignments Arthur held as an arbitra-tor, as an umpire, as a member of presidential emergency boards,and as President of the Academy was a tribute to his large abilitiesand exquisite judgment. He did credit to his profession.

Beyond all of this was Arthur’s sweetness. He truly cared aboutothers and acted on his concern. When arbitrators ran afoul of theCode of Professional Responsibility, he offered a helping hand.When my son, just out of college, was working in New York at aminimum wage job and was unable to obtain a checking account,Arthur stepped forward and created a joint account with him. Hiscapacity for friendship was large—born of a gentle smile, a readywit, marvelous stories, an ego well under control, and a rock-solidresponsibility. His long and loving devotion to Dorothy, his

ARBITRATION 2003xviii

“Pavlova,” was touching. All told, it was a splendid life perfor-mance. He shall always be one of my heroes. I loved him.

Richard Mittenthal

In our living room for the last 20 years or so has stood a lovelysculpture by Dorothy. It is serene and brilliant and the product ofa true craftsperson. Arthur Stark was the other artist in thathousehold.

I had the pleasure of working with Art as a colleague and a friend.He was President of the National Academy of Arbitrators when Iwas its Secretary Treasurer. He was the Permanent Umpire forGeneral Motors and the United Auto Workers when I was hisAssociate Umpire. And in the 30 years I was privileged to have himas a friend, I was his student.

There are a number of people in this world who practicearbitration, but there are very few artists. The words he wrote, likehis thoughts, were always simple and direct and dead on. There wasa precision and clarity that made me wonder again and again andagain, “Why didn’t I think of that?” “Why can’t I think like that?”

Arthur was at the top of my “People to Call When I Have anImpossible Case with an Impossible Question” list. But for Art theywere always possible. He had a laser beam for a mind, housed in aself-effacing, warm, and caring body. When he would finish mull-ing over some knotty intellectual morsel, like rolling a chocolatearound on his tongue, in his quiet, gentle fashion, he would always“kind of” opine that something should or shouldn’t be so. And Iwould always slap my forehead: “Why didn’t I think of that?” Whata humbling experience. If I haven’t loved him so much, I wouldn’thave talked to him at all.

But Art lacked one major qualification to be a bona fide artisticmaven. He wasn’t goofy. He was a regular guy. He was a lovingfather and husband and as devoted a colleague and friend as anyof us could ever have been blessed with.

Dorothy’s artwork swivels; when it does, it presents a whole newfacet to the world and one is exposed to a new vista, depending onwhich side is showing. Art wasn’t like that. His demeanor wasconstant and dependable and always, like Dorothy’s work, beauti-ful.

In summing up, I think of Arthur as a man and I’m reminded ofSomerset Maugham’s description and attempted dissection of theart of painting: You can paint, he wrote, by simply dipping the

IN MEMORIAM xix

brush and daubing a little paint here and some more there, andultimately, he suggested, you would come up with a work of art. Heended his tongue-in-cheek foray with a single word: “Try.”

So it shouldn’t be hard to model our lives after Arthur Stark. Weshould just be loving and humorous, quiet and perceptive, modestand brilliant, sharing and instructive. That way, we, like Arthur, canbe just like Dorothy’s artwork: simple, powerful, and unforget-table. That’s all we have to do. Try.

Richard I. Bloch

xx

Also Remembering

Clair Vincent Duff

Harold H. Leeper

Ferrin Y. Mathews

Joseph A. Sickles

W. Gary Vause

Marian Kincaid Warns

xxi

PREFACE

The Fifty-Sixth Annual Meeting of the National Academy ofArbitrators was held at the Caribe Hilton Hotel in San Juan, PuertoRico, from June 5 through June 7, 2003. The Academy memberswere saddened by the deaths of several colleagues during the pastyear, including four beloved former Presidents: Dave Feller, MiltRubin, Tony Sinicropi, and Arthur Stark. These four men mademassive contributions to the profession of arbitration and the lawthat surrounds it. We are happy that we had them with us for so longbut we will miss them.

The Puerto Rico meeting focused on special problems in arbitraldecisionmaking. The heart of the meeting consisted of a series ofpanel discussions where executives or attorneys in one particularindustry confronted their union counterparts, with an NAA mem-ber moderating the discussion.

In the opening chapter, Richard I. Bloch, in his PresidentialAddress, contends that the glue that holds the dispute mechanismtogether—that bonds the entire industrial-labor relationship—isthe reality and the shared goal of continuing the relationship. Hispaper examines the threats to achieving the potential of this jointlytrusteed system and provides case studies that illustrate how thatpotential might be reached.

One of the highlights of the San Juan meeting was the presenta-tion by former Ambassador Dennis Ross on the lessons that we, aslabor and employment arbitrators, can learn from the peaceprocess in the Middle East. Unfortunately, there was a breakdownin the recording system and Ambassador Ross spoke extemporane-ously. Thus, we have no record of his presentation. Fortunately,Susan Tacon took extensive notes of the talk for an article that laterwas published in the NAA Chronicle. Chapter Two provides thereaders with a more extensive version of her article.

In Chapter Three, Richard Mittenthal provides us with newinsight into what it is that arbitrators do and how we might do itbetter. His paper ranges over the practical aspects of the field, fromconducting the hearing to writing the award.

The panel discussions run from Chapter Four through ChapterEleven. Chapter Four focuses on disciplinary issues in four differ-ent industries—health care, law enforcement, education, and

ARBITRATION 2003xxii

customer service. Because of the general interest in the topics, Ihave included the four cases that the panelists discussed as anappendix. In Chapter Five we turn our attention to the laborrelations problems that came out of the painful downsizing andbankruptcy experiences of US Airways. Perhaps the busiest indus-try for arbitration in the country is the U.S. Postal Service, andChapter 6 examines the issues that arise in that industry, theresultant problems, and some potential solutions.

Chapter Seven addresses specific arbitration issues that areassociated with firms that are in trouble. The panelists examinesuch topics as downsizing, reorganization, and bankruptcy. Chap-ter Eight focuses on the employment-related problems and issuesin the health care industry, concentrating on such topics as finan-cial concerns, patient expectations, communications, and thepressure-laden nature of the work performed. The chapter closeswith a case discussion that illustrates many of these problems.Chapter Nine targets education, concentrating on the contrastbetween what has happened in the continental United States andwhat is happening in the developing Puerto Rican system. ChapterTen focuses on the public sector, examining particular problemsassociated with new legislation in Puerto Rico and in federal, state,and local government stateside. Chapter Eleven turns attention toarbitration and labor relations issues in three major professionalsports: baseball, basketball, and football.

Editors don’t have much work to do when they are dealing withformal papers presented by such accomplished writer/arbitratorsas Rich Bloch and Dick Mittenthal. Panels pose a different problembecause what works in speech often does not work well when thosewords are reduced to writing. When we talk, we tend to be lessprecise, more roundabout, and much more repetitious. Thus, theeditor has to be much more involved in the text and take a muchmore active role. But the editor also learns a great deal from thisinvolvement. I found that my work with the panel presentationstaught me a great deal about arbitration, about problems in thefield, and about particular industries, and I strongly recommendthat the readers immerse themselves in this material.

In Chapter Twelve, the book moves on to the reminiscences offormer President George Nicolau, who tells us not only about hislife as an arbitrator, but about his fascinating life in the U.S. AirForce during World War II and his pre-arbitration work with thePeace Corps and the City of New York. The book closes in ChapterThirteen with four papers that were given at the NAA Fall Educa-

PREFACE xxiii

tion Conference. I felt that these papers were so valuable that theydeserved a more permanent place in the literature of arbitration.The first three papers are from a panel discussion about arbitratoracceptability. Mei Bickner provides an analysis of survey results,and John West and Daniel Boone tell us, respectively, how manage-ment and union representatives select arbitrators. The chapterconcludes with Bill Marcotte’s update on Canadian developments.

I want to thank a number of people whose contributions madethis volume possible. At the NAA executive level, I give thanks toPresident Rich Bloch, who was supportive of the entire process andcooperated with me whenever I needed something; Dave Petersen,who eased the financial burdens; and Gerry Wallin, who chairedthe committee that created the program for the meetings. At theadministrative level, I am indebted to Kate Reif, for answering mycountless questions as I worked through the manuscript, andRenee Brown of BNA, for sharing her expertise with me and givingme her time. And, finally, the person who made this volumepossible was one of my former students, Kathy Plocinik, whotranscribed all of the tapes from the San Juan meeting, many ofwhich were far from clear, and gave the authors and me a basis forcreating a literate volume.

December 2003 Charles J. ColemanEditor

xxv

CONTENTS

MEMORIAL TO DAVID E. FELLER . . . . . . . . . . . . . . . . . . . . . . . . v

MEMORIAL TO MILTON RUBIN . . . . . . . . . . . . . . . . . . . . . . . . . viii

MEMORIAL TO ANTHONY V. SINICROPI . . . . . . . . . . . . . . . . . . . xii

MEMORIAL TO ARTHUR STARK . . . . . . . . . . . . . . . . . . . . . . . . . xvi

REMEMBRANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xx

PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi

CHAPTER 1: Presidential Address: Arbitration in a LitigiousSociety: Arbitration, Innovation, and Imagination—Escaping the Missionary Position . . . . . . . . . . . . . . . . 1I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

By Harry T. EdwardsII. Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

By Richard I. Bloch

CHAPTER 2: Distinguished Speaker Address: Lessons ofMediation: Is Peace Still Possible in the MiddleEast? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

By Ambassador Dennis B. RossReported by Susan Tacon

CHAPTER 3: Invited Paper: The Heart of the Matter . . . . . 23By Richard Mittenthal

CHAPTER 4: Truth or Consequences: Arbitral Rulingson Discipline for Alleged Abuse in LawEnforcement, Education, Health Care, andCustomer Service Settings . . . . . . . . . . . . . . . . . . . . . 33

Moderator: Ira F. JaffeAdvocates: Willis J. Goldsmith and H. VictoriaHedian

ARBITRATION 2003xxvi

Panelists: Ellen J. Alexander, Mei Liang Bickner,Shyam Das, John Kagel, Kathleen Miller, andAndrew Strongin

I. Case #1: Health Care . . . . . . . . . . . . . . . . . . . . . 34II. Case #2: Police . . . . . . . . . . . . . . . . . . . . . . . . . . 46III. Case #3: Education . . . . . . . . . . . . . . . . . . . . . . 54APPENDIX. Cases to Accompany the Truth or

Consequences Panel Discussion . . . . . . . . . . . . 60By Ira F. Jaffe

CHAPTER 5: Labor Relations and Arbitration Post-9/11:The US Airways Experience . . . . . . . . . . . . . . . . . . . . 75

Moderator: Gil VernonPanelists: Stephani Brown, Donna Lewis,Nick Manicone, and Jeffrey Small

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75II. The Panel Discussion . . . . . . . . . . . . . . . . . . . . 75APPENDIX 1. Relevant Arbitration Cases Between US

Airways and ALPA . . . . . . . . . . . . . . . . . . . . . . . 96APPENDIX 2. US Airways Pilots’ Timeline of Relevant

Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

CHAPTER 6: Arbitration and Labor Relations inthe Postal Service: What Does the Future Hold? . . . 101Moderator: Amedeo Greco

Panelists: Gus Baffa, William Flynn,Elizabeth Powell, Doug Tulino, andWilliam H. Young

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101II. The Panel Discussion . . . . . . . . . . . . . . . . . . . . 101

CHAPTER 7: The Incredible Shrinking Workplace: Legaland Arbitration Issues Generated byReorganizations and Downsizing . . . . . . . . . . . . . . . . 123I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

By Marc D. GreenbaumII. Bankruptcy: A Management Perspective . . . . . 123

By Michael R. BrownIII. Bankruptcy: A Union Perspective . . . . . . . . . . 128

By Warren H. PyleIV. ERISA: A Management Perspective . . . . . . . . . 130

By Susan Katz Hoffman

xxviiCONTENTS

V. ERISA: A Union Perspective . . . . . . . . . . . . . . . 133By Donald J. Siegel

VI. The Question and Answer Session . . . . . . . . . . 136

CHAPTER 8: What Arbitrators Really Need to Know inHealth Care Arbitration . . . . . . . . . . . . . . . . . . . . . . . 147

Moderator: Ralph BergerI. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147II. The Health Care Industry: Management’s

View on the Top Ten Issues . . . . . . . . . . . . . . . 147By Thomas Hayden Lee

III. The Health Care Industry: A Union Perspectiveon the Top Ten Issues . . . . . . . . . . . . . . . . . . . . 152By Gwynne A. Wilcox

IV. An Arbitrator’s Perspective on Health CareIssues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155By Janet L. Gaunt

V. Discussion of the Miss Jones Case . . . . . . . . . . 159APPENDIX. The Discharge of Patricia Jones, RN . . . . . 167

CHAPTER 9: Major Issues in Arbitration in the U.S.Education Sector: Stateside and Puerto Rico . . . . . . 169

Moderator: Marcia L. GreenbaumPanelists: Helen Doughty, Ledo SerapioLaureano, and Warren H. Richmond III

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169II. The Panel Discussion . . . . . . . . . . . . . . . . . . . . 169

CHAPTER 10: Arbitration in the Public Sector: The NewSystems and the Established Systems: What EachMight Learn From the Other . . . . . . . . . . . . . . . . . . . 185I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

By Jacquelin F. DruckerII. The Puerto Rican System . . . . . . . . . . . . . . . . . 185

By Antonio F. SantosIII. Not Much That’s New . . . . . . . . . . . . . . . . . . . . 192

By John C. DempseyIV. Issues in the Federal Sector . . . . . . . . . . . . . . . 194

By Donald S. WassermanV. A California Case and the Florida Experience 198

By M. Scott Milinski

ARBITRATION 2003xxviii

VI. On the New York Experience . . . . . . . . . . . . . . 201By Richard Zuckerman

VII. Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

CHAPTER 11: Bunts, Dunks, Punts, and Strikes inProfessional Sports Arbitration . . . . . . . . . . . . . . . . . 207

Moderator: Lawrence T. Holden, Jr.I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207II. Baseball: The Contraction Issue From the

Management Perspective . . . . . . . . . . . . . . . . . 207By Francis X. Coonelly

III. Baseball: The Contraction Issue From theUnion Perspective . . . . . . . . . . . . . . . . . . . . . . . 211By Michael Weiner

IV. Professional Basketball: UnionPerspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214By David Feher

V. Professional Basketball: ManagementPerspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216By Howard Ganz

VI. Professional Football: Union Perspective . . . . 220By Gene Upshaw

VII. Professional Football: ManagementPerspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221By Harold Henderson

VIII. Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

CHAPTER 12: Reminiscences . . . . . . . . . . . . . . . . . . . . . . . . . 225I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

By Arnold M. ZackII. Coffee Lounge Chat . . . . . . . . . . . . . . . . . . . . . 226

By George Nicolau

CHAPTER 13: Papers From the Fall Education Meeting . . . 247I. Arbitrator Acceptability: Arbitrators’ and

Advocates’ Perspectives . . . . . . . . . . . . . . . . . . . 247By Mei Liang Bickner

II. How Union Advocates Select Arbitrators . . . . 266By W. Daniel Boone

III. Reflections on Selecting an Arbitrator . . . . . . 272By John B. West

xxixCONTENTS

IV. Legislation and Court Developments inCanadian Arbitration . . . . . . . . . . . . . . . . . . . . 276By William A. Marcotte

APPENDIX A. National Academy of Arbitrators Officers andCommittees, 2002–2003 . . . . . . . . . . . . . . . . . . . . . . . 289

APPENDIX B. A Little Night Musings . . . . . . . . . . . . . . . . . . 297

AUTHOR INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

TOPICAL INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309