ARBITRATION 1994

CONTROVERSY AND CONTINUITY

ARBITRATION 1994

CONTROVERSY AND CONTINUITY

PROCEEDINGS OF THE FORTY-SEVENTHANNUAL MEETING

NATIONAL ACADEMY OF ARBITRATORS

Minneapolis, Minnesota May 23-28, 1994

Edited by

Gladys W. Gruenberg

Professor Emerita of Economics

and Industrial Relations

Saint Louis University

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Dedication and Memorial

Ralph T. Seward1907-1994

There are so many others in this Academy who revered RalphSeward that I feel a bit sheepish for having been selected to do theremembrance. A chorus of three generations of arbitratorsshould be standing here. I could not, with proper modesty, haveaccepted the selection were it not for the fact that I became the firstof a string of Seward apprentices in the heyday of steel arbitration.All of them will acknowledge that nothing furthered their careermore than the tutelage of Ralph Seward. My privilege is to say itpublicly.

Taking time out from the program of an Academy AnnualMeeting to honor a deceased member marks a unique occasion. Itis no belittlement of others to say that the uniqueness of theoccasion is matched by the uniqueness of Ralph Seward's standingin our Academy. He was one of its founders; he was chosen as itsfirst president by that small group of individuals who were of suchhigh intellect and creativity that any of them could have capablyfilled the post; he led them in giving the Academy its basicorientation as an educational institution, not a trade association;and he was the only president ever to hold the office for more thana year.

The Academy's indebtedness to Ralph is immense, but thereverse is in many ways equally true. He would be the first to say thatthe Academy was at the center of the his life and greatly enrichedit. That's where he formed deep and enduring friendships; that'swhat gave him the avenue for getting away from the narrowness ofcases and doing the contemplative thinking which was at the coreof his nature—and for which he was renowned; and that's wherehe was repeatedly honored—whether via the speeches we askedhim to give, via the heavy-duty committee assignments we askedhim to take on, or via our unhidden regard for him as a person of

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DEDICATION AND MEMORIAL vii

towering presence. It may safely be said that the Seward/Academyrelationship was one of splendid reciprocity. And Clayton waspart of it. She was always at his side. No wonder she once said "whenI married Ralph, I married the Academy."

I want to say a few things on the greatness of Seward theArbitrator. Ralph was at once a brilliant and a humble person. Hehad a deep sense of fairness, and he was never arrogant at any ofhis hearings. He could be stern when he encountered sloppyworkmanship from either side, but he defused many a stickysituation with a light touch and original wit. He disliked glibness.No boilerplate language was ever to be found in his opinions.Because he needed to be certain that he understood, his study ofevery case he ever decided was extreme. He was a superb writer,not only in his mastery of the English language but also in hiscaring concern for the reader's easy consumption. And, ratherthan write in broad strokes, he wrote opinions that demonstratedin well-nigh mathematical terms the inevitability of the outcome ofthe case.

I wish I could say that Ralph's professional life was as comfort-able as his work was superb. I know better, as do those whotolerated long delays and who did so because they knew that thewaiting was in the end always worth it. Neither deciding noropinion writing ever came easy to Ralph Seward. He was too muchof a perfectionist not to have had long struggles with many a case.The clarity and smoothness of his opinions belied the effort thatwent into them. But he also tended to fall behind because heendlessly extended himself to colleagues seeking his help. No onewanting to consult him on an arbitration problem was ever turneddown.

We are all familiar with the George Taylor model of consulta-tions with the parties prior to the issuance of decisions. Despitemany a temptation on many a case, Ralph Seward never resortedto it. The products of his office were those of a loner forcinghimself to come to his own conclusions on even the most difficultand far-reaching cases.

Nor, despite the fact that he was at the helm of the Bethlehem-Steelworkers arbitration system for 35 years, did Ralph Sewardpresume to be an advice-giver. He felt strongly that the system is forthe parties to devise and that their arbitrator should follow suit.The role he fulfilled was that of the arbitrator who quietly decidescases. And yet, the one thing I heard over and over again fromboth parties was this: "The man is of such great help to us."

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I cannot stand here without going into another dimension ofRalph Seward. He was a great teacher. He never got to theuniversity life he often talked about. But his devotion to theteaching of his trainees was complete. He was awfully good at it. Itwas up to us to make use of it, but we were sent off with utterly solidgrounding. The Seward stamp of approval was an unmatchedadvantage. In my case, the Seward school was the substitute forlaw school.

It is many years ago, but I vividly remember Ralph's painstakingreviews of my drafts... his numerous saves from plain error... theuncanny identification of lurking danger, as he'd say, "I thinkyou're quite right, but if you put it that way, Ben Fischer will gothrough the roof . . . the recurring comment, "I think there is astronger point to be made"—and the incisiveness and clarity withwhich he then laid it out . . . the pain which came with therealization that the whole draft was no damn good, as most of uswould put it, but which in Ralph's sensitive way came out as "Howabout taking another shot at it?" . . . and the exhilaration, whichmay have been only occasional but which was always real becauseone had no doubt of Ralph's sincerity, as he'd say, "I think it'sgood; let's ship it out."

A recurring Seward question says much about who he was. Itcame as he confronted a particular sentence in a draft of his ownor a draft of one of his assistants. The question, accompanied by atroubled face, was: "Can we say this?" The easy and legitimateanswer would have been: "What do you mean, can we say this? Youare the umpire, you know." But it would have been a pointlessanswer for Ralph Seward. He would have dismissed it as havingnothing to do with the merits and implications of the sentence thatworried him.

RolfValtin

[Editor's Note: This eulogy was delivered at the Academy'sAnnual Meeting on May 26, 1994.]

Ralph Theodore Seward, the Academy's first President(1947-1949) died of congestive heart failure January 19, 1994 inWashington, D.C. Philosopher, provocateur, teacher, and fre-quent conscience of the Academy, Ralph molded its charactermore than any other among us.

DEDICATION AND MEMORIAL ix

So much has been said of him, and his name and the principleswhich he personified have been invoked so often in our delibera-tions that one risks caricature in trying to sum up what manner ofman he was. I need not try. Many of the wittiest, wisest, and mostbrilliant among us have found ways to summon Ralph's authorityin support of their own pursuits. The ways in which they did socreate a collage of the man and some of his ideas. Some examplesof many:

Jim Hill, during one of his surgical procedures as master ofceremonies, operated on Ralph by characterizing his early years asfollows:

I now face one of the most difficult tasks of my life. It is a genuinepleasure to engage in gentle character assassination when the victimis someone like Seitz, Gill, or Ross, but the speaker is one whom I canonly regard as revered. . . .

He has perhaps the most distinguished career of anyone in this field,an unbroken line of successes, some of which you may not have heard.As an undergraduate at Cornell, he went into dramatics, but never goton the stage. He was on the rowing crew at Cornell, but in his first andonly race the boat sank. He studied law and went on to the NLRB as aReview Attorney. Shortly after that the law was amended and thisposition was abolished. He became the Executive Secretary; after thatthe Board collapsed. He was Chairman of the New York MetropolitanMilk Industry Arbitration Board for two years, after which the partiespermanently discontinued arbitration. He then became ImpartialUmpire under the contract between International Harvester and theFarm Equipment Workers, whereupon the union was discontinued.He was the first President of this Academy, serving for two years, afterwhich the Constitution was amended to limit the President's term toone year.

Peter Seitz invoked Ralph's name as the fictitious author ofPeter 's own witticism, alluding to "the ad hoc arbitrator(whom Ralph Seward has perceptively referred to as the odd hackarbitrator)."

Ben Aaron, at the outset of his paper on the arbitrator's role inensuring a fair hearing, referred to an early speech of Ralph's inwhich he had made the point that arbitration

is primarily important because of its nature as a process . . . a method ofsettling disputes [ that] . . . derives its importance and its lasting effectsfrom its characteristics as a method. (Italics in original)

In another vein, Charles Killingsworth recalled for us Ralph'sreminder that arbitration is a training school in humility for thearbitrator.

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Mickey McDermott put his own spin on what he described asRalph's suggestion "that it was not a permanent condition ofnature that all grievances be treated in the same manner andthrough the same procedures," a suggestion that was elaborated tourge broader experimentation with expedited procedures. (Twoyears later, Ben Fischer, the Steelworkers' midwife in the birth ofexpedited procedures in the steel industry, graciously acknowl-edged Ralph's contribution.)

Marty Cohen cited Ralph's warning that we take heed of wherewe may be headed: "We are a part of the Establishment—so mucha part of it that we are getting bored with ourselves."

The list of Seward citations could be elaborated almost indefi-nitely. So, too, could the list of those whom he taught or supervisedduring some phase of their careers. As the War Labor Board staff:Lew Gill, Ben Aaron, Fred Bullen, Hal Davey, Bob Feinberg,Robben Fleming, Jesse Friedin, Syl Garrett, Ron Haughton, TedKheel, Phil Marshall, Eli Rock, and Saul Wallen. As apprentices orassociates in his office: Gabe Alexander, Rolf Valtin, Sy Strongin,Jim Harkless, Herb Fishgold, Fred Reel, and Joe Sharnoff.

As one who was privileged to apprentice with him, some of thethemes to which he returned again and again are imprinted in mefor life. Simplify but don't oversimplify. Write in prose that speaksdirectly to grievant and foreman alike. Think anew as society and,within it, the industrial world, evolves in new directions. Smugnessand glibness were his enemy. Mechanical incantations aboutburden of proof, management's rights, hearsay, and the like wereanathema to him. And always, from him, there was the call to betrue to our trust as arbitrators and as guardians of the process heheld so dear.

Who will carry on the call? I do not despair of finding othersamong us to do so. But there will not be—perhaps in this differentage there cannot be—another Seward.

He was a man, take him for all in all,I shall not look upon his like again.

Hamlet [I.ii.]

Alexander PorterGabriel Alexander

[Editor's Note: This eulogy appeared in the April 1994 issue ofThe Chronicle.}

PREFACE

The theme of the 47th Annual Meeting of the National Academyof Arbitrators, held at Minneapolis, Minnesota, May 23-28, 1994,was "Controversy and Continuity." In his presidential addressDallas Jones reminded Academy members of the purposes of theorganization as set forth in the Constitution, stressing the continu-ity of its dedication to education and ethics. He gave a historicalsurvey of these activities as illustrated in the Proceedings since itsfounding in 1947 and challenged Academy members to remaindevoted to these two goals to preserve the highest professionalstandards (Chapter 1).

Distinguished speaker, William Gould, newly appointed Chair-man of the National Labor Relations Board, reminded the audi-ence that, while Nelson Mandela represented an example of theworld's progress in coping with cultural diversity, serious unre-solved conflicts remain in many areas of human endeavor. Hepromised to use his office proactively to improve labor-manage-ment relations by emphasizing the need for a cooperative ratherthan an adversarial approach (Chapter 2).

Addressing a continuing arbitral problem in affording dueprocess, Jay Grenig took another look at the "seven tests" firstpromulgated by Carroll Daugherty and suggested that arbitratorswere still using the due process test in evaluating penalties andremedies. James Begin, assisted by Michael Zigarelli, reported ona research project sponsored by the NAA Research and EducationFoundation. Using responses submitted by Academy members,they attempted to assess whether arbitrators mitigate penalties andunder what circumstances (Chapter 3).

In her discussion of health-related issues, Joan Dolan predictedthat new problems for arbitrators would arise under the Americanswith Disabilities Act and cautioned arbitrators to consider externallaw in arriving at their decisions. James Kelley (management)generally agreed with that approach, but Gail Lopez-Henriquez(labor) emphasized that the collective bargaining agreement

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should be the controlling factor since employees retained theirright to appeal to the courts if they remained aggrieved (Chap-t e r ^ .

In line with continuing attempts by the Academy to acquaintmembers with new challenges in the profession, psychologistRaymond Flannery explained the causes of violence in the work-place and outlined a profile of a potentially dangerous employee.He urged arbitrators to be proactive in preventing violence duringtheir hearings (Chapter 5).

Turning to another controversial issue, Thomas Haggard em-phasized the need for improving the due process rights of employ-ees who did not wish to become union members. His position wassupported by Raymond Lajeunesse of the Right-to-Work Founda-tion, but Richard Wilkof of the National Education Associationcountered that unions had spent considerable funds to complywith agency-fee requirements by radically revamping their ac-counting procedures (Chapter 6).

James Oldham exemplified the continuity aspect of the pro-gram by delving into early English use of arbitration techniques toresolve economic and social issues with the blessing of the courts.Laura Cooper pointed out that even before the passage of the CivilRights Act of 1964 arbitrators were paying attention to culturalchange. Using decisions of Harry Shulman, Ford-United Automo-bile Workers umpire in the 1940s and 1950s, she illustrated his"modern" approach to women's issues involving equal pay, genderdiscrimination, and seniority preference (Chapter 7). Anticipat-ing this historical theme, the Academy had selected several arbitra-tion "classics" at its Continuing Education Conference in Octo-ber 1993, when Richard Mittenthal and David Feller revisitedtheir earlier works. Their remarks are included in this volume(Chapter 8).

David Rabban discussed the special problems and perquisites inprofessional employment, especially as they relate to arbitration ofgrievances in higher education and hospital settings. In a specialcontributed paper John LaRocco updated baseball arbitrationwith suggestions for reform of the process (Chapter 9).

Alluding to the succession of conflicting arbitration decisionson the same issue in a single collective bargaining relationship inthe Miscocase, Timothy Heinsz evaluated the difficulties facing the"clean-up" arbitrator. Reginald Alleyne and Rolf Valtin provided

PREFACE xiii

additional comments (Chapter 10). In light of the AlternativeLabor Dispute Resolution Committee Report and the 1992 presi-dential address of Anthony Sinicropi, Walter Gershenfeld an-swered the question, "Will things really be different?" mostly in thenegative. Charles Rehmus urged that labor-management arbitra-tors get involved in all employment cases to ensure justice forwrongfully terminated employees (Chapter 11).

Giving an international flavor to the proceedings, AndrewStewart of Australia provided the audience with a perspective of hiscountry's labor-management relations, stressing the legal environ-ment. Hoyt Wheeler did the same from the U.S. point of view(Chapter 12).

Finally, in the traditional "fireside chat" immediate past presi-dent David Feller provided reminiscences of the events leading upto his participation in the Trilogy argument before the SupremeCourt (Chapter 13). The Academy honored 1965 past presidentRussell Smith in absentia by presenting him with honorary lifemembership. Other Academy business included a special memo-rial in honor of Ralph Seward, founder and first president, whodied in 1994. This volume is dedicated to his memory. TheAcademy adopted two amendments to its Constitution concern-ing presidential succession and suspension from membership(Appendix B).

The excellent program was arranged by a committee headed byDennis Nolan, and John Flagler ably chaired the ArrangementsCommittee. We thank this year's contributors, whose cooperationin promptly submitting their manuscripts made this volume pos-sible. Camille Christie returned to serve as BNA special editor andperformed in her usual capable fashion.

After eight volumes I am stepping down as editor of the Proceed-ings. I wish to thank especially the Academy presidents Iwas privileged to work with, namely W'illiam Murphy (who firstappointed me in 1987 to edit the 40th anniversary volume),Arvid Anderson, Thomas Roberts, Alfred Dybeck, HowardBlock, Anthony Sinicropi, David Feller, and Dallas Jones. I alsorelied on the help of secretary-treasurer Dana Eischen and hisassistant Kate Rief. In addition, I could not have functionedeffectively without the financial and logistical support of EmeryTurner and Neil Seitz, successive deans of the School of Bus-iness and Administration at Saint Louis University, and Rick

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Chaney and Patrick Welch, successive chairs of the economicsdepartment.

I welcome Joyce Najita, director of the Industrial RelationsCenter at the University of Hawaii, as the new editor and wish herwell.

July 1994 Gladys W. Gruenberg, Editor

CONTENTS

DEDICATION AND MEMORIAL TO RALPH T. SEWARD v

PREFACE xi

CHAPTER 1. Presidential Address: The Educational Roleof the Academy 1

by Dallas L. Jones

CHAPTER 2. Distinguished Speaker: This Generation'sReconciliation 12

by William B.Gould IV

CHAPTER 3. Mitigation and Labor ArbitrationPart I. Due Process and Major Offenses 22

by Jay E. GrenigPart II. An Academy Survey: Do You Mitigate? . . . . 30

by James P. Begin and Michael A. Zigarelli

CHAPTER 4. Arbitration of Health-Related Issues, WithSpecial Reference to the ADA 42

by Joan G. DolanLabor Perspective 57

by Gail Lopez-HenriquezManagement Perspective 63

by James J. Kelley

CHAPTER 5. Violence in the Workplace: PreventionStrategies 80

by Raymond B. Flannery, Jr.Comment 93

by M. David Vaughn

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CHAPTER 6. Union Security in the Context of LaborArbitration 110

by Thomas R. HaggardComment 124

by Raymond J. Lajeunesse, Jr.Comment 130

by Richard B. Wilkof

CHAPTER 7. Arbitral ContinuityPart I. On the Constancy and Pedigree of the

Arbitrator's Heritage 138by James Oldham

Part II. Harry Shulman: Deciding Women'sGrievances in Wartime 153by Laura J. Cooper

CHAPTER 8. Arbitration ClassicsPart I. Revisiting Three "Classics" 169

by David E. FellerPart II. The Ever-Present Past 184

by Richard Mittenthal

CHAPTER 9. Problems of Specific OccupationsPart I. Arbitration of Disputes Over Professional

Standards 194by David M. Rabban

Part II. Reforming Baseball Salary Arbitration . . . . 213by John B. LaRocco

CHAPTER 10. Other People's Messes: The Arbitrator asCleanup Hitter 236

by Timothy J. HeinszComment 261

by Reginald AlleyneComment 271

by Rolf Valtin

CHAPTER 11. New Roles for Labor ArbitratorsPart I. Will Arbitrators' Work Really Be Different? . 275

by Walter J. GershenfeldPart II. Justice and the Wrongfully Terminated . . . 285

by Charles M. Rehmus

CONTENTS xvii

CHAPTER 12. Arbitration in International and ComparativePerspectivePart I. A View from Abroad: Compulsory Arbitration

in Australia 293by Andrew Stewart

Part II. The View from Here 312by Hoyt N. Wheeler

CHAPTER 13. How the Trilogy Was Made 327by David E. Feller

Introduction 327by William P. Murphy

APPENDIX A. National Academy of Arbitrators Officersand Committees, 1994-1995 351

APPENDIX B. Amendments to NAA Constitution and

By-Laws 359

AUTHOR INDEX 361

TOPICAL INDEX 365