By: Julius Getman
In 1955, Dean Harry Shulman of Yale Law School delivered the
prestigious Oliver Wendell Holmes Lecture at Harvard Law School,
arguing that labor arbitration is preferable to court litigation
for disputes that arise out of collective bargaining negotiations
because the arbitrator is in a position to consider the industrial
relations implications of the decision and to become familiar with
the parties and their specific needs. According to Shulman, the
arbitrator’s limited jurisdiction and freedom from the boundaries
of precedent, legal doctrine, and the rule of law enable him to
more effectively achieve what is ultimately sought by all parties:
wise judgment. Most importantly, the success of the
arbitration process owes to its voluntary and private features, and
Shulman accordingly advised the courts to stay out of the
process.
Relying heavily on Shulman’s reasoning and the growing success
of labor arbitration, the Supreme Court embarked upon a new era of
judicial support of arbitration and began enforcing arbitration
clauses in labor agreements. However, this judicial
acceptance and enforcement undermined Shulman’s advice that the
court system refrain from involvement in the arbitration system and
eliminated the system’s voluntary nature while imposing obligations
upon the parties that they did not assume. The result is that
a policy developed because of the success of voluntary collective
bargaining that has been used to force parties to accept a process
that they have not chosen, and has been expanded to deprive
individuals of statutory forums and rights in situations in which
the basis for any policy favoring arbitration is present, even if
it seems remote at best.
Ultimately, the model of arbitration that Shulman described has
been transmogrified into the very sort of process that Shulman
himself had warned against. While it is impossible to know
how the law might have developed had the Court heeded his advice to
stay out, it is quite certain that labor arbitration would have
continued to thrive due to its benefits to both labor and
management. Reconsideration of Shulman’s wisdom might help to
reinvigorate the mutual benefits of what was, and should be, a
mutual commitment by management and labor to resolve their own
disputes without judicial intervention.