A QUARTER CENTURY OF NEW DIRECTIONS IN LEADERSHIP

Theodore J. St. Antoine, Editor

A QUARTER CENTURY

OF NEW DIRECTIONS

IN LEADERSHIP AND MISSION

HE NATIONAL ACADEMY

OF ARBITRATORS:

A QUARTER CENTURY

OF NEW DIRECTIONS

IN LEADERSHIP AND MISSION

THE NATIONAL ACADEMY

OF ARBITRATORS:

A QUARTER CENTURY

OF NEW DIRECTIONS

IN LEADERSHIP AND MISSION

Theodore J. St. Antoine

Editor

Copyr

ight @ 2022

Cosynd, Inc.

Published

by Bookbaby, Inc.

Printed in the United States of America

International

Standard Book Number 9781667833385

DEDICATION

The volume celebrating the fiftieth anniversary of the National

Academy of Arbitrators was dedicated to the 49 Academy presidents who

had served from 1947 to 1997. It seems only fitting to dedicate this quarter-

century history to the presidents from 1998 to 2022. Their efforts helped chart

the Academy in fruitful new directions while preserving the best of the past

in labor and employment arbitration.

Academy Presidents

James M. Harkless, 1998

Theodore J. St. Antoine, 1999

John Kagel, 2000

James J. Sherman, 2001

Richard I Bloch, 2002

Walter J. Gershenfeld, 2003

George R. Fleischli, 2004

Margery F. Gootnick, 2005

Dennis R. Nolan, 2006

Barbara Zausner, 2007

Michel G. Picher, 2008

William H. Holley, Jr., 2009

Gil Vernon, 2010

Roberta L. Golick, 2011

Sara Adler, 2012

James C. Oldham, 2013

Shyam Das, 2014

Allen Ponak, 2015

Margaret R. Brogan, 2016

Kathleen Miller, 2017

David A. Petersen, 2018 (posthumously)

Edward B. Krinsky, 2018

Barry Winograd, 2019

Daniel J. Nielsen, 2020

Susan L. Stewart, 2021

Homer C. La Rue, 2022

Susan L. Stewart

Academy President, 2021-2022

vii

FOREWORD

This history of the Academy at 75 reflects a quarter century of an

ongoing quest for excellence. As George Nicolau observed in his foreword

to the volume on the Academy at 50, our history at that time was

characterized by the unceasing promotion of professionalism and the constant

protection of the arbitration process. That history has continued. However, as

President Nicolau also observed, like any vibrant institution, the Academy in

1997 was a work in progress. Among other challenges, the Academy has

wrestled with issues of ethics and self-regulation, evolutions in thought and

practice, and legal developments. There have been changes in the structures

of workplaces and in levels of unionization. Then, of course, there was the

pandemic. Throughout this tumultuous period the Academy has retained a

focus on the best way to adapt and serve in an ever-changing world, while

remaining true to its founding principles.

This volume demonstrates how the Academy has been consistently

guided by a keen sense of its mission, described in our Constitution as the

establishment and fostering of: “the highest standards of integrity,

competence, honor, and character” among arbitrators. The Academy’s role as

a strategist for ensuring excellence in service to the parties has continued over

the last 25 years. This has been reflected in the publication of our

proceedings, our contributions to scholarship through the Research and

Education Foundation, our conferences, the development of new arbitrators,

and in our relationships in the broader labor relations communities in North

America and internationally. It has also been reflected in our role in litigation

and as a resource for factual information about arbitration, as well as in the

various contributions in reports and in committee work. Most recently, it has

been reflected in the extraordinary work done by the Academy during the

pandemic, with the immediate establishment of remote hearing training and

the development of protocols. This work was shared with the broader

community and reinforced the Academy’s role as a leader in the justice

system at a critical juncture of history.

While the foregoing achievements are considerable, comment on the

last 25 years would be incomplete without reference to the opportunities for

friendship and collegiality within the Academy. These relationships have

generated great pleasure and personal growth for Academy members. Of

course they have also led to deep sadness because of the loss of many revered

colleagues during this time.

viii

The past 25 years have been marked by positive developments in

terms of diversity and inclusion in both the Academy’s membership and in

our leadership. However, this is an area where there remains much work to

be done, as the Academy rises to the challenge of moving to greater diversity

and inclusion, ensuring that we have the institutional benefit of a broad

spectrum of the voices of the talented and the work of the dedicated. I am

optimistic that the person who has the privilege of preparing the foreword to

the Academy at 100 will report positively on our achievements in this area. I

am confident that our strong foundations will allow the Academy to evolve

and flourish as we confront the challenges of the next 25 years.

anuary 2022 Susan L. Stewart

President (2021-2022)

PREFACE

In 1997 the National Academy of Arbitrators marked its fiftieth

anniversary by having the dinner at its annual meeting a black-tie affair. That

was entirely fitting and I saluted then-President George Nicolau for adding

this stylish touch. Nonetheless, there was inevitably a certain clubbish air

about it as well, perhaps with some overtones of exclusivity.

Toward the end of the Twentieth Century the Academy was

primarily an organization of elderly white males. No African American and

only two women had been president during the Academy’s first half century.

There was another important area of exclusion. The attention of most of the

organization’s members was historically focused on the arbitration of union

claims under collective bargaining agreements. Only gingerly did the

Academy begin to pay heed to the growing field of arbitration involving

individual nonunion employees.

The last quarter century has seen dramatic changes of direction in

the Academy’s leadership and mission. Seven women and the first two

African Americans have been elected president of the Academy. That both

reflected and encouraged a determined outreach for fresh blood and new

ideas.

Mission changes also had significant policy implications. The NAA

first flatly opposed so-called mandatory arbitration of employees’ statutory

claims. Later the Academy modified that position by saying voluntary

arbitration was “preferable,” adding it was “desirable” for employees to be

able, after a dispute has arisen, to opt for either court or administrative

processes or arbitration. The Academy then proceeded to issue general

guidelines for handling all employment arbitrations, including contractual as

well as statutory claims. More specific and more stringent guidelines applied

to mandatory arbitrations imposed as a condition of employment.

Internally, perhaps the most momentous Academy development of

the quarter century was the work of the New Directions Committee. After

much deliberation and membership votes at two annual meetings, the NDC’s

proposal was adopted to incorporate nontraditional forms of employment

dispute resolution into the Academy’s domain. A principal effect was to

provide for the counting of nonunion employment arbitration cases as part of

the total required arbitration caseload of a candidate for admission to the

Academy.

The book published to celebrate the Academy’s first half century in

1997, NAA: Fifty Years in the World of Work,

was organized

Gladys W. Gruenberg, Joyce M. Najita & Dennis R. Nolan, The National Academy of

Arbitrators: Fifty Years in the World of Work (1997).

chronologically. Our updating for the past quarter century is instead broken

down by subject matter to put more emphasis on different Academy

activities, and especially on changes in leadership and mission. Individual

chapters will thus focus on Academy governance, codes of ethics, racial and

gender composition, education and training, arbitration in various industrial

and national settings, nonunion employment arbitration, amicus briefs,

antitrust problems, technology, and the future.

A veritable “Who’s Who” of Academy members were willing to

participate in putting this work together. The very quality of the writers made

editing relatively easy. That same quality, and the accompanying press of

multitudinous other commitments, sometimes made the meeting of deadlines

a bit more vexing. It took time but the job was eventually done, and a deep

debt of gratitude is owed to all those listed on the following page of

contributors.

cademy members exhibit a wide range of opinions on a wide range

of subjects. It goes without saying that the views expressed by our

contributors are their own, and do not necessarily reflect the views of the

Academy. Our common allegiance is to a private system ensuring due process

and the timely, measured resolution of disputes among unions and employers

and employees.

anuary 2022 Theodore J. St. Antoine

Chair, Fifty Years Supplement Committee

CONTRIBUTORS

All contributors are members of the National Academy of Arbitrators.

Richard I. Bloch is a Past President of the Academy. He practiced labor law

in Chicago and taught at the University of Detroit School of Law and several

law schools in Washington, D.C.

Shyam Das is a Past President of the Academy. He practiced law in New

York City and taught at the University of Pittsburgh Law School. He chaired

the U.S. Steel-Steelworkers Board of Arbitration for many years.

Walt De Treux is Executive Secretary-Treasurer of the Academy. He

practiced labor law in Philadelphia and taught at Penn State University and

St. Joseph’s University Comey Institute.

Barry Goldman has been on the adjunct faculty of Wayne State University or

its Law School throughout his career and was Deputy Director of the City of

Detroit Human Rights Department. He is the author of The Science of

Settlement.

Joshua M. Javits is a Vice President of the Academy and a former Chair of

the National Mediation Board. He began as a trial attorney for the NLRB and

then practiced at different times for both labor unions and management.

Nancy Kauffman (ex officio) has chaired the Academy History Committee.

She has written extensively on arbitration and mediation for the Dispute

Resolution Journal and other reviews.

Homer C. La Rue is President-Elect of the Academy. He received the 2020

D’Alemberte-Raven Award, the highest honor bestowed by the ABA Section

of Dispute Resolution for an individual’s contribution to the ADR field.

Mark I. Lurie has been a member of the Academy’s Board of Governors and

editor–in-chief of both its print and online publications, The Proceedings of

the National Academy and Dispute Resolution in the Workplace.

Dan Nielsen is Immediate Past President of the Academy. He chaired the

Academy’s Committee on Professional Responsibility and Grievances. He

was on the faculty of the University of Wisconsin and a staff attorney for the

Wisconsin Employment Relations Commission.

Dennis R. Nolan is a Past President of the Academy and Webster

Distinguished Professor Emeritus of Labor Law, University of South

Carolina. He practiced labor law in Milwaukee.

xii

Theodore J. St. Antoine is a Past President of the Academy and Degan

Professor Emeritus and Dean Emeritus, University of Michigan Law School.

In practice he represented the AFL-CIO.

Kenneth P. Swan has been President of the Ontario Labour-Management

Arbitrators’ Ass’n and a member of the Academy’s Board of Governors. He

taught law at Queen’s University and the University of Toronto.

Alan A. Symonette is President of the Academy’s Research and Education

Foundation. He has been a Vice President of the Academy and is Immediate

Past President of the College of Labor and Employment Lawyers.

Kathryn A. VanDagens is a Vice President of the Academy. She has taught

labor and employment law at Michigan State University and Oakland

University.

M. David Vaughn chaired several Academy committees, including the

Nominating Committee. He is a Past President of the National Ass’n of

Railroad Referees and former General Counsel of FMCS. At different times

he represented employers, unions, and individual employees.

Elizabeth C. Wesman has been President of the Academy’s Research and

Education Foundation and chair of eight different Academy committees. She

is a Past President of the National Ass’n of Railroad Referees and has taught

labor relations at Syracuse and Cornell Universities.

Barry Winograd is a Past President of the Academy. He has taught labor law

at the University of California, Berkeley and the University of Michigan.

Previously he was an ALJ for the California Public Employment Relations

Board and an attorney for the United Farm Workers.

Barbara Zausner (editing) is a Past President of the Academy and chaired the

Academy’s Nominating Committee and Membership Committee. She has

represented a teachers union and served as an employee relations coordinator

at Rutgers University.

Daniel G. Zeiser (appendix and index) has been a member of the Academy’s

Board of Governors. He was managing editor of The Chronicle and chaired

the 2020 Annual Meeting Program Committee.

A special word of thanks goes to Katie Griffin and Melissa Kelley of the

NAA Operations Center for their invaluable help in data collection and the

publication process.

xiii

CONTENTS

Dedication......................................................................................................v

Foreword..................................................................................................... vii

Preface ......................................................................................................... ix

Contributors ................................................................................................. xi

Chapter 1. The Academy’s Board of Governors ..........................................1

Chapter 2. The Challenge of Self-Regulation: Ethical Standards in

Arbitration ....................................................................... 11

Chapter 3. The Academy at 75 and the Arbitrator of Color: Reflecting

What Is, Moving to What Should Be .............................. 38

Chapter 4. Women and the Academy ......................................................... 56

Chapter 5. The Academy and the Railroad Industry ................................... 84

Chapter 6. The NAA’s Role in Airline

Labor-Management Relations ....................................... 105

Chapter 7. The U.S. Steel and Steelworkers Board of Arbitration:

The Role of an Arbitration System in a

Major Industry .............................................................. 125

Chapter 8. Labour Arbitration in Canada

and Canadians in the NAA ............................................ 136

Chapter 9. New Directions: The Academy’s Encounter

with Employment Arbitration .......................................157

Chapter 10. The Academy’s Amicus Briefs:

Advocate for the Institution of Arbitration ................... 188

Chapter 11. Education and Training in the NAA ...................................... 197

Chapter 12. The Academy and the FTC .................................................... 205

Chapter 13. Technology ............................................................................ 209

Chapter 14. The Future of the Academy .................................................... 238

Appendices ................................................................................................ 242

Index .......................................................................................................... 265

Chapter 1

THE ACADEMY’S BOARD OF GOVERNORS

Walt De Treux

Introduction

The history of the Board of Governors (BOG) since 1997 can be

found primarily in the minutes of its meetings.

If there is an overall theme

that emerges from a review of those minutes, it is, “Plus ça change, plus c'est

la même chose.” The issues that the BOG grappled with in the late 1990s

and earlier 2000s are remarkably similar to the issues that the BOG continues

to confront today.

The structure of the BOG has not changed, although it may have

changed by the time this chapter is published. Pursuant to Article IV of the

Academy’s Constitution, “The government and management of the Academy

shall be vested in a Board of Governors consisting of twelve (12) members

in addition to the ex-officio members.” The ex-officio members include the

president, four vice presidents, the executive secretary-treasurer, the

president-elect, and the immediate past president.

In 2019 President Barry Winograd appointed the Governance

Reform Committee to make recommendations on issues raised by the

Academy’s change to one meeting a year and declining membership over the

past decade. Chaired by President-Elect Dan Nielsen, the Committee

recommended reducing the number of governors from 12 to 8 and the number

of vice presidents to two. The membership at the 2021 Annual Meeting

accepted those changes, which become effective for the 2022-23 BOG term.

The Board has approved restoring one vice presidency, however, and the

BOG may have three vice presidents beginning the 2023-24 term.

One other constant over the past two decades has been the location

and staff complement of the Academy’s Operations Center. When William

Holley took over as Executive Secretary-Treasurer in 1996, the Op Center

relocated from Ithaca, New York to Auburn, Alabama where Holley lived

and worked. Kate Reif served as Operations Manager under former EST

Dana Eischen and continued to work from her home office in the Southern

Tier Region of New York State when Holley became EST. The Academy

also employed Brenda Ryan in the Auburn office.

When David Petersen became EST in 2002, the Operations Center

relocated to Cortland, New York, where it remains to this day. While

Bill Holley, who served as EST from 1996-2002, kept very detailed minutes of BOG meetings.

Those minutes usually ranged from 25 to as many as 60 pages. His successor, David Petersen,

had an impressive command of the issues that came before the BOG, but he did not always

prepare minutes of the BOG meetings. The Academy does not have copies of any minutes from

Petersen’s first term and some of his second term. With some lapses, the minutes were regularly

done beginning in 2008. Minutes of the membership business meetings do not appear to have

been regularly recorded until 2017. I have to thank several former presidents and governors who

helped bridge some gaps in the history that could not be gleaned from the minutes.

When David Petersen became EST in 2002, the Operations Center

relocated to Cortland, New York, where it remains to this day. While

Petersen was based in Pittsburgh, he recognized a need for stability in the Op

Center location. Each time the office was moved to the home base of the

EST, the Academy incurred expenses. The move from Ithaca to Auburn cost

the Academy approximately $15,000. Since the EST did not have to be

physically present in the Op Center, the Academy found a permanent location

in Cortland near Reif’s home.

In 1998 the Academy hired Suzanne Kelley as a part-time employee

to assist at the Annual Meetings and FECs. Suzanne’s hire was the beginning

of the Kelley Gang. In 2003 Katie Griffin, Suzanne’s daughter, was brought

on part-time and soon rose to Operations Manager when Reif left in 2005.

The Kelley Gang was complete when Melissa Kelley, Suzanne’s daughter-

in-law, was hired in 2019 on a part-time basis for her financial and

technological expertise. The Kelley Gang keeps the Academy running. Their

dedication to the Academy’s mission and its members led the BOG to name

Suzanne and Katie honorary members of the Academy in 2018 (prior to

Melissa’s hire).

Although BOG policy limited an executive secretary-treasurer to

two three-year terms except “in extraordinary circumstances,”

David

Petersen’s fine work and selfless dedication must have created those

extraordinary circumstances because he remained a constant presence as EST

for 15 years. Assuming the office in 2002, Petersen was elected to an

unprecedented five terms until he stepped down in 2017. Petersen brought a

steady and calming hand to the Academy, guiding many presidents and BOGs

through difficult issues and stabilizing the Academy’s finances during his

time in office. His impact on the Academy cannot be overstated. His

intellect, his organization skills, his institutional memory, and his easy

accessibility to any Academy member made him well-suited to the role of

EST. His untimely death in 2018 stunned and saddened the Academy, but

the love and respect he engendered led to his posthumous election as

President of the Academy at the 2018 Annual Meeting in Vancouver.

While Petersen and the Kelley Gang have given the Academy a

constant and reassuring presence over the years, the issues the BOG has had

to confront since 1997 also remain remarkably similar, percolating for years

until a satisfactory, albeit sometimes temporary, resolution can be found.

Membership and Finances

The level of membership and attendance at meetings determine the

financial health of the Academy. The financial goal has always been that the

meetings pay for themselves, and dues pay for the rest. That goal has not

always been met, and financial shortfalls have often led to significant changes

in the Academy.

When he became EST in 1996, Bill Holley found the Academy to

be “financially healthy.” Membership included 656 total members, 580 of

All quotations in this chapter are from the BOG meeting minutes unless indicated otherwise.

whom paid full dues.

In June 1998 membership had increased to 592 full

dues-paying members, and Holley characterized the Academy as “financially

strong.” But he noted that 1997 saw “a significant deficit” and warned, “[I]f

the Academy continues to spend money the way it has without increasing

revenues and the deficit continues to accumulate every year, it would face a

definite problem.” Holley’s prescience proved true the following year when

the Academy decided to raise dues $100, from $350 to $450 per year, and

instituted cost-cutting measures. By the 2000 Annual Meeting, Holley was

able to report the financial condition as “stable due to the reduction in

expenses and increase in dues.” In Fall 2000, however, membership levels

had dropped to 612 total members with 536 paying full dues.

The Academy seemingly stabilized its dues revenues with the $100

increase for a few years, but the second prong of the financial base took a hit.

Attendance at the 2001 Annual Meeting in Atlanta failed to meet projections,

and the Academy suffered a $43,000 loss. In proposing his final budget in

2002, Holley noted, “the anticipated deficit and additional expenditures

caused by the FTC inquiry

” required another $100 dues increase, to $550

per year.

Membership remained remarkably stable through the first decade of

the 2000s. In 2006, the Academy had 654 members and 546 paying full dues.

In 2012, it had 640 members and 552 paying full dues. Much to the detriment

of the Academy, that full dues-paying number began a steady decline the

following year. Although total membership held steady at 638, the full dues

payers dropped to 516. Senior members of the Academy retired from practice

in significant numbers and took dues waivers, and new members were not

admitted at a level sufficient to replace the retiring or deceased members – a

trend that continues to this date. In 2018, the Academy had 489 full-dues

paying members and more than 100 retired members. By June 2020 the full

dues-paying number had dropped further to 434.

Membership levels were stable through most of Petersen’s term as

EST. Using his astute financial acumen, he set the Academy on a firm

financial footing. In 2005 the full dues amount was $650 per year, its current

level as of this writing. Meetings were designed to break even, but fulfilling

that goal depended entirely on attendance. Some meetings resulted in a

surplus, others (like the Atlanta meeting) led to a loss. In a representative

five-year period (2010-2014), the Annual Meetings and the FECs showed a

$8600 surplus. But a closer review reveals the fluctuation between meetings.

In 2010 and 2012 the meetings had surpluses of $78,600 and $42,800

respectively. But in 2011 and 2014 the Academy suffered losses of $64,400

and $47,900 respectively. Only the 2013 meeting met the goal of breaking

even. In more recent years, the meetings have been more likely to result in a

deficit than a surplus, which led to changes by the BOG that will be discussed

later in this chapter.

The Academy has long had a policy that allows waivers for members who are no longer

arbitrating or have reduced their practice. As of June 2020, the policy allowed for a 50% waiver

for members that no longer serve as arbitrators but continue in other employment and a 100%

waiver for members who have fully retired from active employment. It also provides a 100%

waiver for a 20-year member who hears five or fewer arbitration cases per year. The membership

numbers also include Honorary Life Members, comprised of retired past presidents and other

distinguished members, who are not required to pay dues.

The FTC case is discussed at length infra ch. 12, Richard Bloch, “The FTC and the Academy.”

Despite the fluctuation in meeting revenue but with a stable source

of dues revenue at least through 2013, the Academy thrived financially. In

1990 the Constitution and By-Laws were amended to include a reserve fund

of $200,000. In 2008 a Board Designated Reserve Fund was established and

set at $300,000. When the reserve funds grew through sound investments to

approximately $700,000 in 2014, the BOG reconsidered the necessity of such

large reserves. After its review, the BOG decided to increase the reserves to

protect against “the potential cost of litigation…a disastrous meeting

experience…and obvious market fluctuations.”

By June 2020 those

reserves had grown to approximately $1.6 million.

With membership decline and unpredictability in meeting revenues,

the Academy faced some financial uncertainty as it entered the third decade

of the

Twenty-first Century. The reserves have proven a bulwark against

financial problems, but the Academy still needs to return to its goal of

“meetings pay for meetings, and dues pay for everything else.” The financial

stability of the Academy was a problem that the BOG faced in the late 1990s

and continues to face today. Some of the proposed solutions in the past

regarding meeting revenue finally came to fruition almost twenty years later.

Annual Meetings and FECs

Pursuant to the terms of the Constitution and By-Laws, the

Academy is required to hold an Annual Meeting in the spring of each year.

The Annual Meeting is open to members and guests (nonmember arbitrators

and advocates). In addition, the Academy has held a Fall Education

Conference (FEC) for many years and in various forms. Sara Adler, Program

Chair for the 1996 FEC in Baltimore, recommended that the BOG

institutionalize the FEC “so it could be treated with the same respect as the

Annual Meeting.” She urged the BOG to set the meeting several years in

advance and “to give continuity of procedure from year to year.” The BOG

listened to Adler as the FEC became an established and much-anticipated

members-only meeting each year. However, fluctuating meeting attendance

and the Academy’s financial situation often threatened the fall meeting.

In 1998, the Committee on Cost and Attendance at Annual Meeting

was formed. In a survey of the membership, “[m]any respondents wrote that

two meetings per year made both meetings financially impossible and was

draining on hearing dates.” They suggested one meeting per year or a fall

meeting every other year. Nonetheless, the FEC continued.

By 2012, after her visits to the Regions during her term, then-

President Sara Adler concluded that “the time had probably come for the

NAA to consider holding just one national meeting per year.” She cited “the

declining economies of [members’] practices and the pressures and burdens

associated with attending two national meetings per year.” President Adler

declined to make a motion to enact her recommendation, but she asked the

BOG to begin considering a change to one national meeting per year.

The FEC’s fate was inextricably tied to the Annual Meeting. The

Annual Meeting remained strong and attractive to members and guests in the

1990s. The 1996 Annual Meeting in Toronto drew 677 attendees, including

The quoted language comes from the Committee report on the reserve policy. The Committee

was chaired by Dan Nielsen.

229 members and a total of 478 paid registrants (members’ spouses and

certain guests did not have to pay a registration fee). A year later in Chicago,

492 members and guests paid to attend the meeting. Nonetheless, the

Academy continually sought to improve the meeting program and to retain

and attract guests.

As noted, the Committee on Cost and Attendance at Annual Meeting

was formed in 1998. In 2008 President Bill Holley appointed a Special

Committee on Meeting Attendance chaired by Dan Nielsen. In its 2010

Report, the Committee found that member attendance at the Annual Meeting

from 1996 through 2010 varied significantly from a low of 158 members in

San Juan (2003) to a high of 275 members in Chicago (1997). The number

of guests showed a similar range, though the decline was more noticeable

beginning in the early 2000s. With the exception of two well-attended

meetings – Chicago 2005 and Ottawa 2008, guest attendance peaked at 227

in 2000 and dipped to 118 guests by 2010. (The San Juan meeting in 2003

only attracted 93 guests.) The Special Committee issued 13

recommendations to increase the attendance of advocates, including

shortening the public portion of the meeting by reserving Saturdays for

members only, establishing a rotation of four cities in which to hold the

meeting,

and reducing the registration costs for advocates.

Not all the recommendations were implemented by the BOG, and

advocate attendance at the Annual Meeting did not improve. The 2017

Annual Meeting in Chicago drew only 68 guests. Meanwhile, the FEC drew

fewer members, from 160 in 2000 (Scottsdale) to 115 in 2015 (Denver),

explainable in large part by the decline in active membership. In response to

continuing concerns about the viability of the both the Annual Meeting and

FEC and recognizing that a majority of the Academy was finally willing to

adopt significant change, President Kathleen Miller appointed the Bloch

Committee, chaired by Richard Bloch. The Bloch Committee issued a

comprehensive report that recommended a move to one meeting per year, the

Annual Meeting and Member Education Conference (MEC). It also

recommended several other initiatives and cost-saving measures designed to

make the meeting financially viable and attractive to members and advocates.

President Ed Krinsky followed up the work of the Bloch Committee by

appointing Paula Knopf to chair the Bloch Report Implementation

Committee (BRIC). Knopf’s Committee produced a well-received report that

included a checklist to guide future Program Chairs in implementing the

Bloch Committee and BRIC Recommendations.

The last FEC was in 2019 in Savannah, Georgia. The first Annual

Meeting and Member Education Conference was scheduled to be held in May

2020 in Denver, Colorado. Unfortunately, the worldwide COVID-19

pandemic forced a cancellation of the meeting.

The debut of the Annual

Meeting/MEC was then set for Spring 2021 in Marina del Rey, California.

Those four cities – Washington, DC, Chicago, Toronto, and San Francisco – had proven to

attract a high number of members and guests.

In 2017 a hurricane forced the cancellation of the 2017 FEC in Miami.

Membership Standards

Throughout the last 25 years, the Academy has had a continuing

interest and concern in ensuring that its membership standards reflect the

reality in the arbitrator marketplace. In the late 1990s an applicant needed to

issue 50 awards in 5 years as a threshold for consideration of admission to

the Academy. At that time, however, an arbitrator’s services were in great

demand and caseloads were high. The Membership Committee expected

applicants to have more than 100 awards in the 5-year time frame. At the

same time, President James Harkless had appointed the Committee on the

Academy’s Future. At the 1999 FEC in Montreal, Quebec, Committee Chair

George Fleischli reported that the principal issue for the Committee was

“whether to expand the Academy’s membership to those who act as

arbitrators mostly in cases involving employment disputes arising outside the

labor-management field.” The issue was not resolved at that meeting, but it

loomed large over the Academy for several years.

In 2005, President Richard Bloch convened a BOG retreat to discuss

the state of the Academy and a general strategic plan for the future. A second

retreat followed under President Fleischli. The Academy was divided, with

some BOG members opposed to any change in the high membership

standards of the Academy and others advocating for credit for employment

cases to recognize the expanding field of work and increase the Academy’s

influence and membership rolls. Those retreats led to the formation of the

New Directions Committee (NDC),

co-chaired by Jeffrey Tener and Barry

Winograd representing both sides of the debate. The NDC established a

Membership Standards Working Group to address changes to the

membership standards.

The work of the NDC on membership standards spanned three

Presidents – Fleischli, Barbara Zausner, and Michel Picher. The

recommended changes to the membership standards faced a healthy debate

at the 2007 Annual Meeting in San Francisco and a membership vote at the

2008 Annual Meeting in Ottawa. The recommended changes passed by a

slim margin.

Under the new standards, an applicant needed 60 awards in 6 years

as a threshold to admittance. Forty of those 60 cases had to be labor

arbitration cases. A “second bucket” of 20 cases was created, consisting of

workplace dispute resolution decisions such as fact-finding, advisory

arbitration, work as an independent hearing officer for a labor or civil service

agency, and no more than 10 employment arbitration awards.

Membership standards continued to evolve in the ensuing years. In

2009 the Membership Committee, chaired by Margaret Brogan, reinstated

the Veterans’ Procedure, through which a candidate who clearly meets the

Academy’s standards, could apply for membership “without filling out

worksheets and providing supporting documentation of their caseload.”

Regional Chairs were tasked with identifying worthy candidates for

Special thanks to Past President Margaret Brogan, who previously served as Membership Chair,

for her assistance in providing history and context to the BOG’s actions on membership

standards before and after the New Directions Committee report.

The New Directions Committee is covered in more detail infra ch. 9, Dennis R. Nolan, “New

Directions: The Academy’s Encounter with Employment Arbitration.”

admission through this procedure. At the same meeting, Gil Vernon, chairing

a special committee on railroad membership, placed a recommendation

before the BOG that provided, “Each certificate of appointment to a Section

3 tribunal…under the Railway Labor Act by the National Mediation

Board…accompanied by one issued and adopted award will be considered as

one countable ‘workplace’ dispute resolution decision.” The BOG adopted

the Committee’s recommendation. Soon thereafter the Membership

Committee expanded its alternative standard (for prominent authorities in the

labor-management field) to include “regional stars,” individuals of

prominence in certain areas of the U.S. and Canada who were well-regarded

in the field but did not have a national reputation.

By 2019 the Academy continued to suffer a decline in membership

through death and retirement of members and a contraction of arbitration

work in some areas of the country. President Barry Winograd established the

Membership Standards Committee to look at all areas of arbitration work that

may indicate general acceptability and whether that work should be

considered in evaluating NAA applicants. Chaired by Sarah Garraty and

staffed by former Membership chairs, the Committee recommended several

changes to the membership standards including recognition of appointments

and settled cases, an area often cited by members, including Canadian

members, who actively and regularly settle disputes to which they are

appointed. The BOG adopted the Committee’s recommendations, which are

best summarized as follows:

The basic standard for NAA membership is

“general acceptability by the parties” as reflected in the

applicant’s “substantial and current experience.” We take

“substantial and current experience” to require at least five

years as an arbitrator and at least 60 decisions in a six-year

period. The heart of that 60-decision requirement is 40

written decisions. At least 25 of those 40 written decisions

must be in labor-management cases; and the other 15 either

may be additional labor-management awards or may be

written decisions in other workplace disputes such as civil

service, teacher tenure, etc. (No more than ten of them may

be in employment arbitrations.) The remaining 20 cases

may also be labor-management awards; they may also be

workplace dispute decisions; or they may be in the form of

a consistent record of mutual selection. Because the

ultimate standard is “general acceptability,” we find that a

record of actually being selected by opposing parties is a

source of evidence for meeting that standard; and we

therefore count five mutual selections (that produced no

formal decision) as the equivalent of one award (above the

40 written decision minimum). If the applicant was

actively involved in the resolution of a dispute after s/he

was mutually selected to hear it, we count two of those

mutual selections as the equivalent of one

award. Remember that this 60-decision minimum satisfies

the “substantial and current experience” requirement; and

the Membership Committee still must find in the

applicant’s experience convincing evidence of his or her

general acceptability by the parties.

The standards for membership in the Academy are likely to continue

to change as the nature of arbitration work changes and caseloads rise and

fall. In his 2020 Presidential Address, Barry Winograd proposed, “[T]he

Academy should be the ‘single home’ for all neutrals – arbitrators and

mediators – who render workplace justice.” Time will tell if the Academy

takes up Winograd’s challenge.

Visibility and Outreach

The Academy’s mission has always been to “establish and foster the

highest standards of integrity, competence, honor, and character among those

engaged in the arbitration of labor-management disputes.”

Yet, throughout

the last 25 years, the BOG has consistently worried that the good work of the

Academy goes unnoticed by those who derive its benefits.

At the 1997 Annual Meeting in Chicago, President George Nicolau

announced “plans to develop an action plan to increase the Academy’s

visibility in the arbitration field.” He cited a newspaper article on

employment arbitration, commenting, “it is this entire new field that we may

be involved in.” He also suggested that a standardized list of media contacts

should be developed so that the Academy’s Annual Meetings could receive

press coverage. Governor James Oldham summed up the need for a Visibility

Committee:

“Our organization is facing a different phase in its

life now than it once did. We are a shrinking organization

and are not well known to many people in the ranks. For

our own best interest as an organization, we ought to make

ourselves better known.”

A few months later at the 1997 FEC, the Action Plan/Visibility

Committee submitted a report to the BOG that recommended, among other

things, employing a professional public relations firm to “put together a

visibility plan, design an information kit, and make contacts with the media.”

The one-year agreement with the firm cost the Academy $50,000.

The visibility plan was considered successful, but it was short-lived.

At the 1998 Annual Meeting in New Orleans, Immediate Past President

Nicolau recommended that the contract with the PR firm not be renewed

because “it was not affordable” and “the goals of the Committee to increase

visibility through major media…had been accomplished.”

The Visibility Committee was discontinued in 1999, but was

resurrected a decade later when President Bill Holley appointed David

Vaughn to chair a Special Committee on Academy Visibility. The

Committee completed a one-year study and issued a report at the 2010

Annual Meeting in Philadelphia. The Committee made 13 specific

recommendations, including encouraging members “to display their

See www.naarb.org

Article II, Constitution and By-Laws.

Academy membership on cards, letterheads, communications and lapels,”

maximizing content on the Academy website, developing an Academy

Speakers Bureau, and developing a brochure to describe the Academy and its

mission.

President Gil Vernon followed up on the Committee’s report by

appointing Margo Newman Visibility Coordinator and Walt De Treux

Regional Activities National Coordinator. Vernon’s idea was for the

Academy to expand its visibility on a national level while also encouraging

activity and growth in the Regions through educational programs (“Regional

Rejuvenation Initiative”). Over the next couple of years, the Regional

Education Conference Resources Subcommittee developed a formal

curriculum that would allow Regions to sponsor 1-day, 2-day, or 3-day

advocacy training programs.

During that same period, Newman introduced

various initiatives for members that would help advertise and highlight their

Academy membership, such as a “Dos and Don’ts Brochure for Advocates”

and the increased wearing of NAA lapel pins.

The Academy’s visibility efforts were often geared toward

advocates and other participants in the arbitration process. But the BOG also

recognized the need to focus on non-member arbitrators, from newer

arbitrators aspiring to join the Academy one day to experienced arbitrators

who may not be aware of or never sought membership in the Academy.

The reinstituted Veterans’ Procedure and expanded alternative

standard allowed for more experienced arbitrators to enter the Academy. At

various times, the BOG focused with success on increasing the ranks of its

relatively small, but impressively influential and active, Canadian members.

In 2017, President Margaret Brogan established the Outreach

Committee to assist in the development and mentoring of newer arbitrators

with the hope that they would soon meet the standards for Academy

membership. The Outreach Committee was implemented on a Region-by-

Region basis and quickly found success in training programs, one-on-one

mentoring, and salons, in which several newer arbitrators would meet on a

regular basis with experienced arbitrators to discuss all aspects of their

practice. When Brogan became Past President, President Kathleen Miller

appointed her to Chair the Outreach Committee, which continues as of this

writing.

A special initiative of the Outreach Committee was to bring more

diversity to the arbitrator ranks by reaching out to women and people of color.

Going in a slightly different but equally important direction, Vice President

Homer La Rue conceived of the Ray Corollary Initiative (RCI) in 2019 to

achieve diversity and inclusion in arbitration selection. Working closely with

Vice President Alan Symonette, La Rue presented the RCI to the BOG, the

ABA Section of Labor and Employment Law, and other labor-management

stakeholders. The BOG wholeheartedly adopted the RCI. The Initiative aims

to ensure that parties to an arbitration will always consider candidates from

underrepresented populations when selecting arbitrators. The RCI is in its

The curriculum was developed in significant part with the assistance of Members Brogan, Jack

Clarke, Homer La Rue, and Winograd, who served as long-time arbitrator trainers for the Federal

Mediation and Conciliation Service. See also infra ch. 11,

Elizabeth C. Wesman, “Education and Training.”

infancy at the time of this writing, but we hope it gains quick acceptance in

the field.

The Academy may have been most visible in the labor-management

community during a public health and economic crisis. In 2020, the COVID-

19 pandemic thrust itself on an unsuspecting world, resulting in a shutdown

of many workplaces for several months. In-person arbitration hearings were

restricted or prohibited by many state and local safety protocols. President

Winograd and President-Elect Dan Nielsen created the Videoconference

Task Force (VTF). Chaired by Jeanne Charles with an able assist from Keith

Greenberg and La Rue among others, the VTF quickly and efficiently

developed protocols and training for arbitrators and advocates to conduct

videoconference hearings. The work of the VTF had a significant impact on

the ability of the labor-management community to continue to hear and

resolve workplace disputes at a time when parties could not safely convene.

Outreach to advocates, nonmember arbitrators, and other

participants in the arbitration field will certainly remain one of the primary

missions of the Academy. If it continues that outreach, the Academy is well

positioned to remain visible and relevant in the labor-management arena.

The role of race in the Academy and in arbitration is discussed in detail infra ch 3, Homer C.

La Rue & Alan A. Symonette, “The Academy at 75 and the Arbitrator of Color.”

James Oldham and Richard Bloch

Betty Holley and William Holley Jr.

George Nicolau, David Feller, and Charles Coleman

Joshua Javits, William Gould IV, and Homer La Rue

Barry Winograd and Gil Vernon

Walt De Treux

David Petersen

Alan Symonette

and Susan Stewart

Shyam Das, Kathleen Miller,

David Petersen, and Daniel Nielsen

Chapter 2

THE CHALLENGE OF SELF-REGULATION:

ETHICAL STANDARDS IN ARBITRATION

Dan Nielsen

Beginning in 1947 and continuing to this day, there has been a

struggle to guide and regulate the conduct of labor-management arbitrators.

This struggle is not difficult because of any intrinsic character defects in

arbitrators as a species, but because arbitration is not a single thing. At its

core, it is defined by the practices and needs of the unions and employers who

seek the help of arbitrators in resolving their myriad disputes. What is

acceptable in one region, or one industry may be utterly unacceptable in

another. Some parties may want an arbitrator to mediate, while others would

be horrified. Some may want an informal hearing, while others may wish to

wax eloquent about the Federal Rules of Evidence. Some may wish to orally

close even on a complex contract case, while others will wish to fully brief a

verbal warning. All these preferences and habits constitute what is or is not

arbitration in a given setting, making it hard to generalize what is and is not

within the parties’ expectations. There are, as there must be, substantial gray

areas.

Add to those gray areas the fact that arbitrators are individual actors,

who are not part of a larger business enterprise and who are not in any

meaningful way subject to or accustomed to supervision. They are

professionally ill-disposed to anyone second-guessing them or telling them

what to do – they view that as being their job. The combination of a field in

which it is hard to generalize and a professional grouping that prizes its

independence and authority makes for a less than promising environment in

which to impose a code of professional conduct. Yet I would argue that the

National Academy of Arbitrators, after halting first steps and some strong

midcourse corrections, has succeeded to a surprising degree.

The challenge of reducing 75 years of effort to a chapter of

reasonable length is daunting, and some things have necessarily been left out.

This chapter focuses on the regulation of arbitral ethics in labor-management

disputes. It does not, other than tangentially, address the arbitration of

nonunion employment disputes. Although some historical background is

provided, there is little detailed analysis of the original 1951 Code of Ethics

and Procedural Standards. And, other than a comment here and there, I have

tried to avoid any editorializing, in favor of informing the reader about the

Code of Professional Responsibility and its workings.

Initial Efforts at Articulating Standards of Conduct

Since its establishment, the National Academy of Arbitrators has

recognized its obligation to identify and promote ethical standards in the

practice of arbitration. Article II of the original By-Laws identified high

ethical standards as one of the basic aims of the organization:

The purposes for which the Academy is formed

are: To establish and foster the highest standards of

integrity, competence, honor, and character among those

engaged in the arbitration of labor-management disputes

on a professional basis….

At the founding meeting in 1947, a Committee on Ethics was one of two

standing committees established by the new organization (the other, naturally

enough, being the Membership Committee). Professor Nathan Feinsinger of

the University of Wisconsin was named the first chair of the Committee on

Ethics and was charged with considering the formulation of a code of ethics.

At the Annual Meeting in January 1949, Chair Feinsinger provided

an initial report, advising the Board of Governors of the Committee’s need to

explore the nature of the arbitral process – judicial vs. legislative vs.

bargaining – before proceeding to a Code and identifying potential topical

areas for a Code. It bears remembering this was a period when the very basic

questions about what the proper role of the arbitrator should be were not well

settled, and this committee was being asked to formulate a code governing a

wide-ranging field that had barely existed ten years earlier. An agenda for

discussion was agreed upon in early 1950, and a drafting committee was

formed. The committee largely settled on a judicial model for the

composition of the Code.

In 1951 a Code of Ethics and Procedural Standards for Labor-

Management Arbitration (Ethics Code)

was jointly adopted by the AAA,

FMCS, and the Academy. It purported to regulate the behavior of arbitrators

and of the parties to arbitration. The Ethics Code broke into three parts. Part

I was titled “Code of Ethics for Arbitrators.” It addressed the general

characteristics that should be demanded in an arbitrator, and the reasonable

expectations for his conduct in general.

Part II, “Procedural Standards for

Arbitrators,” spoke to the mechanics of the process – how arbitrators are to

be compensated, how hearings should be arranged and conducted, the proper

content of an Award, including whether there should be an Opinion, and a

prohibition on publishing the Award without consent. Part III, “Conduct and

Behavior of Parties,” sought to set out the expectations for the advocates and

parties who appeared before an arbitrator. This section rather ambitiously

sought to admonish parties to “approach arbitration in a spirit of cooperation

with the arbitrator and […] seek to aid him in his duties,”

abide by whatever

rulings he might make, avoid concealment of necessary facts or the use of

exaggeration, and it cautioned, “Acrimonious, bitter or ill-mannered conduct

is harmful to the cause of good arbitration.”

Notably, no representatives of

the parties were involved in the drafting of the Code.

The Ethics Code as originally constituted was, in many ways,

aspirational rather than functional. The enforcement mechanism consisted of

Whitley McCoy was the organizing chair at the first meeting of the Committee. He stepped

away and Feinsinger took over as chair for the substantive work.

15 LA 961 (1951); “Code of Ethics and Procedural Standards for Labor-Management

Arbitration,” in The Profession of Labor Arbitration, Selected Papers From the First Seven

Meetings, National Academy of Arbitrators 1948-1954 at 151 (Jean T. McKelvey ed. 1957).

The Ethics Code, at least in its drafting, did not admit the possibility of a female arbitrator.

15 LA 965.

15 LA 966.

the ability to issue Formal Advisory Opinions, informing members and

agencies of the Committee’s views on specific fact situations, with

explanations that could then be generalized. That authority was granted to

the Committee in 1953. Between 1951 and 1975, there was no notable

enforcement of the Code beyond the private counseling of members.

At the 1960 Annual Meeting, a symposium titled, “The National

Academy After Twelve Years,” was presented. As reported in that meeting’s

Proceedings, then-new member (later President) Rolf Valtin led off by

questioning the efficacy of the Code and the professionalism of the Academy:

I want to turn for a moment to the role of the

Academy as an overseer of its members. Recognizing that

this is a delicate area, I nevertheless note that even we new

members run into disturbing questions pertaining to such

things as excessive charges, solicitation, self-

aggrandizement, etc. The difficulty we have in running into

questions of this sort is that we have no answer - other than

to resort to shoulder-shrugging. We can point out that the

Academy's constitution deals with the matter of abuses - to

quote from it here: "To establish and foster the highest

standards of integrity ... among those engaged in the

arbitration of industrial disputes ... to adopt and encourage

the acceptance of and adherence to canons of ethics to

govern the conduct of arbitrators .…” But we do not think

we are in a position to tell anyone that the Academy has

established the means by which to effectuate these

objectives. This troubles us because we do not like to have

to admit that the stated objectives are no more than a

declaration of intent. Such admission must be accompanied

by a loss of pride in the Academy.

Here again, I assume that the matter of the

Academy's role on unethical conduct by its members has

been thoroughly studied in the past. And I assume, further,

that seasoned minds concluded that an essentially passive

role was the wisest course. We new members don't

presume to tell you that it is the wrong course. But it does

raise the nagging question as to whether the Academy's

orientation is one of a club or one of an influential

professional organization. If it is a professional

organization, I, for one, would expect to have my

professional affairs scrutinized by an arm of the governing

body. The question I am raising is whether the time has

possibly come for the Academy to take another look at its

role in this regard. Should it not keep searching for

appropriate mechanics for the enforcement of its own

standards?

Rolf

Valtin, “What I Expect of the Academy,” in Challenges to Arbitration,

Proceedings of the

13th Annual Meeting, National Academy of Arbitrators 18-19 (Jean T.

McKelvey ed. 1960).

In considering whether arbitration could properly be considered a

profession, the second speaker in that 1960 symposium, member William

Loucks, was even more blunt that Valtin:

…While preparing these thoughts for presentation

I made inquiry as to what this Committee has done during

its lifetime. I received a one-word answer: "Nothing." This

is intolerable if we are serious about this matter of

professionalization. If the Committee has seen fit not to

open its facilities to complaints against individuals, it

should be dealing with ethical aspects of arbitration in

broader terms. There are numerous ways in which it could

stimulate and assist arbitrators, individually or in groups,

to visualize and reflect upon ethical or professional aspects

of their activities. Why has it not been engaging in such

potentially fruitful activities?

Loucks went on to comment on the characteristics that distinguish a

profession from a trade or other business enterprise, with the clear implication

that the Academy did not yet possess the necessary focus:

[A profession] “consists of a membership

composed solely of those who are willing and anxious to

follow an enlightened consensus on what activities and acts

are permissible, demanded, or precluded to the practitioner

-- basically without fear of organized sanction against the

individual…The concern of the classic professions is to see

that established emphases upon function, service, and

codes of behavior are not chiseled away - our concern is to

see that more and more emphasis is put upon performance

of function, that more and more we build, through our

individual behavior as arbitrators, those codes of right and

wrong which keep our efforts focused on performance of

function."

Concern about the professionalism of labor arbitration was not

confined to the Academy itself. In 1964 Judge Paul Hays of the Second

Circuit, a former arbitrator, delivered a set of three Storrs Lectures on

Jurisprudence at Yale Law School, discussing arbitral ethics. He did not

comment directly on the Academy’s Ethics Code, but he did express his view

that labor arbitration was marked by the self-interest, self-promotion, fee

padding, careerism, and general incompetence of most labor arbitrators. After

praising Harry Schulman and Archibald Cox for their skill and

professionalism, he then commented on the rest of the field:

But surely arbitration cannot properly claim the

right to be judged by the standards established by its best

exemplars. What of the “man” whose work is characterized

by “incompetence, maneuvering, and even downright

William Loucks, “Arbitration – A Profession?” i

d. at 30

(emphasis added).

Id.

chicanery?” What of the “rascals in arbitration” who have

“in some fashion ... to be made to conform to some ethical

standards or be thrown out?” What of the arbitrators who

indulge in “ambulance chasing” and “fee padding?” What

of the arbitrators whose “interest” is in “how to perpetuate

themselves” or of the arbitrator who in deciding a case asks

himself, “How secure (am I) in (my) position?” “What is

the importance of the relevant arbitration duties to (my)

career?”

Professor Benjamin Aaron characterized Hays as having pursued the

evils of arbitration “

without fear and without research.”

Judge Hays was,

as his book title suggested and Aaron’s review affirmed, advancing a

distinctly minority view. His lectures nonetheless caused a stir and

provided grist for the continuing discussions over whether arbitration was

evolving into a fully recognized profession, and about the efficacy of the

Academy’s attempts at passive self-regulation.

There followed a period of relative inaction, aside from the

renaming of the Committee as the

Ethics and Grievances Committee in

1965, and a continuation of internal discussions, what member Alex Elson

termed “our intensive soul searching.” Finally, at the 1971 Annual Meeting,

Elson unveiled a proposal to replace the Code of Ethics with a Code of

Professional Responsibility. While characterizing the existing Code as

superbly drafted for its time, he asserted that the field was sufficiently well

established that positive statements of what should be expected of an

arbitrator could be made with confidence, and would be more effective in

promoting professionalism than the “thou shalt not” formulations in the Code

of Ethics. Elson patterned his proposal on the Code of Professional

Responsibility the American Bar Association had devised for attorneys.

Elson gave four reasons for the comprehensive change he proposed

– the need for public confidence in institutions, including the professions; the

still unsettled question of whether, despite enormous growth in the field,

arbitration could yet claim to be a profession; the recurring reports of serious

misconduct among arbitrators outside of the Academy; and the pervasive

problems of excessive cost and unreasonable delay.

Elson contended that the revised Code should have four main

objectives: to ensure “impartiality, competency, expedition, and

reasonableness of cost.”

In the first of these, Elson would emphasize the

appearance of impartiality as well as genuine impartiality, and the need to

step aside in any case when a party could reasonably perceive a conflict of

Paul R. Hays, Labor Arbitration: A Dissenting View 52 (1966). Cf. Jean T.

McKelvey, “

Ethics Then and Now: A Comparison of Ethical Practices,” in

Arbitration 1985: Law and Practice, Proceedings of the 38th Annual Meeting,

National Academy of Arbitrators 283, 289 (Walter J. Gershenfeld ed. 1985)

[hereinafter McKelvey].

Benjamin Aaron, “Books Reviewed,” 42 Wash. L. Rev. 969, 976 (1967).

Alex Elson, “The Case for A Code of Professional Responsibility for Labor

Arbitrators,” in Arbitration and the Public Interest, Proceedings of the 24th Annual

Meeting, National Academy of Arbitrators 194-97 (Gerald G. Somers & Barbara D.

Dennis eds. 1971).

Id. at 198.

some type. In the second, he described a shared obligation among the

Academy, the designating agencies, and the individual arbitrators to ensure

competency. The Academy and the designating agencies, in Elson’s view,

were obligated to provide regular and continuous educational programs for

arbitrators and advocates, while individual arbitrators were obliged to

participate in that training, assist in the training of new arbitrators, and

recognize the limits of their own knowledge and experience.

As to expedition, Elson acknowledged that some of the delay in the

grievance process was solely attributable to the parties in delaying the

processing of grievances to the arbitration step, but he identified delay in

issuance of the award as the primary problem and the sole responsibility of

the arbitrator. Lastly, Elson stated the twin truisms that excessive fees should

be avoided, and that “excessive” was a matter of both circumstance and

opinion. He observed generally that fees should be based on more than a mere

accounting of time and should bear some reasonable relationship to the

complexities of the case. He also counseled that a Code should make

allowances for fee reductions where the financial circumstances of the parties

warranted, noting, “An important characteristic of a profession is its

willingness to place service first and to provide that service to all who need

it on a basis on which they can afford to pay.”

Beyond the four principal concerns, Elson suggested that a Code

promulgated by the Academy and the designating agencies was probably a

poor vehicle for policing the conduct of parties to arbitration, as the existing

Code purported to do, but that if they were to be regulated, they must be

included in the drafting and approval process. He asked whether the Code

should impose obligations to protect individual employees from collusive

behaviors by unions and employers, such as rigged awards. He further

challenged the drafters to consider the scope of activities to be regulated by

a new Code – whether it should be limited to arbitration, or should extend to

mediation, fact-finding and other neutral activities in the labor relations

arena.

In her authoritative presentation on the development of the modern

Code at the 1985 Annual Meeting, Jean McKelvey described the aftermath

of Elson’s powerful case for reform:

As a result of Elson's eloquent and stimulating

challenge the same three groups that had endorsed and

promulgated the 1951 Code of Ethics undertook a major

revision of the Code in 1972. Their efforts culminated in

the publication on November 30, 1974 of the Code of

Professional Responsibility for Arbitrators of Labor-

Management Disputes - our current "Blue Book." The

reasons for revision were noted briefly in the Foreword.

These included the advisability of combining ethical

considerations and procedural standards under the caption:

Professional Responsibility; the advisability of eliminating

admonitions to the parties; the need to consider the

substantial growth of third-party participation in the public

Id. at 202.

sector; the growing significance of interest arbitration; and,

the emergence of new and more diversified problems in

private sector grievance arbitration. In comparing this new

Code with the old one I note what appear to me to be the

significant differences, changes, or innovations in the new

Code as follows:

1. It applies to any procedures in which the

neutral is empowered to make decisions or

recommendations.

2. It applies to statutory as well as voluntary

procedures in which impartial third parties are called upon

to function, such as advisory arbitration, impasse resolution

panels, statutory arbitration, fact-finding, and other special

procedures.

3. It stresses the importance of technical

competence on the part of the arbitrator as well as the need

for an arbitrator to keep current with the principles,

practices, and developments in his or her field of

arbitration practice.

4. It states the obligation of experienced

arbitrators to cooperate in the training of new arbitrators.

5. It covers new areas such as mediation by an

arbitrator and med-arb; independent research and reliance

on other arbitration awards; the use of assistants; consent

awards; the avoidance of delay; and detailed prescriptions

on fees.

6. It sets forth standards of prehearing, hearing,

and posthearing conduct.

In short, as the Code itself recognizes, there can be

no attempt to draw rigid lines between ethics and good

practice.

So far as enforcement procedures are concerned

the only reference to charges of professional misconduct is

contained in the Preamble

The new Code of Professional Responsibility was adopted by the

FMCS, the AAA, and the Academy in 1974, ushering in the modern era of

ethics regulation for the profession.

It replaced the passive admonitions of

the Code of Ethics to refrain from certain actions with statements of the

arbitrator’s affirmative responsibilities to the parties, to the administrative

agencies, and to the profession as a whole.

McKelvey, supra note 9, at 291-92.

The adoption of the new Code was not without controversy, as related in Gladys W.

Gruenberg, Joyce M. Najita, & Dennis R. Nolan, NAA: Fifty Years in the World of Work 158-63

(1997). As an illustration of the robust nature of the debate, Lewis Gill expressed the concern

that the discussion of hearing practices and fees represented “grubby housekeeping details,” with

William Simkin responding that failure to address the issues would “help perpetuate a

monstrosity.” For the full text of the Code, as last amended in 2007, see https://naarb.org/code-

of-professional-responsibility/.

The Structure and Substance of the Code of Professional Responsibility

The new Code abandoned the pretense of regulating the parties to

an arbitration, focusing instead on the responsibilities of the arbitrator to the

profession, the parties, and the administrative agencies. It is broken into a

Preamble and six substantive sections, the first three of which describe those

general responsibilities, and the last three of which describe the ethical

requirements for an arbitrator’s performance of his or her duties, in the areas

of pre-hearing conduct, hearing conduct, and post-hearing conduct.

Preamble

The Code cannot properly or fully be understood without first

referring to the Preamble.

The Preamble provides background on the Code,

the assumptions on which it is based, its scope, format, and application. It

advises the reader that the Code drafters understood that there are shades of

gray in assessing conduct, and that as between two similar sounding

situations, one may fall into the category of failing in a professional

responsibility, while another may simply represent a case of poor

professional practice. To aid in the understanding of the Code, it is drafted

using three type faces. Bold faced type indicates a statement of general

principles. Italics are used for statements amplifying those general principles.

Regular type is used for explanatory or illustrative comments.

Arbitrator’s Qualifications and Responsibilities to the Profession

This section describes the general qualities that an arbitrator must

possess, including “honesty, integrity, impartiality and general competence

in labor relations matters,” and the admonition that compromise for the sake

of acceptability is unprofessional. It advises the arbitrator not to accept cases

that the arbitrator is not qualified to judge, or cannot become qualified to

judge, and to remain current in the principles, practices and developments in

the field. It sets forth the arbitrator’s duty to assist in the training of new

arbitrators. Most critically, it cautions that “An arbitrator shall not engage in

conduct that would compromise or appear to compromise the arbitrator’s

impartiality.”

Responsibilities to the Parties

The second section of the Code addresses the arbitrator’s

responsibilities to the parties and, naturally enough, is the lengthiest portion

of the Code. It begins by describing the arbitrator’s duty to become familiar

with and respect the customs and practices of the parties he or she is working

with. It cautions, though, that the duty does not extend to approving or

consenting “to any collusive attempt by the parties to use arbitration for an

improper purpose.” This primarily goes to the concern over “fixed awards”

where the parties dictate an outcome that may not be justified by the facts or

the governing language, essentially using the arbitrator as cover to reach a

desired result.

The Foreword also provides valuable information on the history and development of the Code.

The duty to disclose relationships or circumstances that might give

rise to a perception of impropriety or lack of impartiality is treated at some

length and addresses business relationships, representational relationships,

financial stakes, familial relationships, and personal relationships. The

principal duty of the arbitrator in all such circumstances is to disclose the

relationship and allow the parties to inquire further or to object to the

arbitrator’s service. The caveat is that an arbitrator who believes that there is

a clear conflict of interests must withdraw from the case, even if both parties

give their knowing consent to his or her continued service.

The privacy of arbitration is presumed, and the arbitrator is

prohibited from disclosing details of a case to anyone not involved in the

case, or from discussing the case except in confidence with another arbitrator.

The arbitrator is also prohibited from publishing an award, unless both parties

have been advised of the intent to publish and been given an opportunity to

object, or unless applicable law requires publication.

There is an unusual and somewhat vague provision in subsection D

regarding personal relationships with parties, that could be read as

overlapping with the duty to disclose:

An arbitrator must make every reasonable effort to

conform to arrangements required by an administrative

agency or mutually desired by the parties regarding

communications and personal relationships with the

parties.

a. Only an “arm’s-length” relationship may be acceptable

to the parties in some arbitration arrangements or may be

required by the rules of an administrative agency. The

arbitrator should then have no contact of consequence with

representatives of either party while handling a case

without the other party’s presence or consent.

b. In other situations, both parties may want

communications and personal relationships to be less

formal. It is then appropriate for the arbitrator to respond

accordingly.

The most plausible interpretation of this provision is that it goes to the

interactions between the arbitrator and the parties in the course of the case,

and the degree of formality that might be expected of the arbitrator. This

would be important in the case of an arbitrator who is quite well acquainted

with one party or advocate, but new to the other side. While there may be no

need to make a disclosure of the arbitrator’s familiarity with the advocate or

party, the arbitrator must be mindful of the impression being made on the

other side by his or her interactions, and the impact they may have on that

side’s perceptions of impartiality.

The arbitrator’s duty to respect the decisions of the parties as to

settlement of issues is specified, as is the arbitrator’s potential role as a

mediator. No party may be required to engage in mediation, unless the

contract imposes such an obligation, and the arbitrator has the right to refuse

to mediate, unless it was agreed to at the time of appointment.

Reliance on other arbitrators’ awards, and the use of assistants by

the arbitrator, are both addressed with the primary guidance being that the

arbitrator is responsible for the ultimate award and cannot delegate any

decision-making responsibility to others. One minor exception lies in the

area of Consent Awards, where the parties themselves may make agreements

or stipulations as to portions of the decision and ask the arbitrator to include

them in his or her award. So long as the arbitrator is confident of his or her

understanding of the terms, and has no reason to believe there is any improper

purpose being served by the issuance of the Consent Award, it is consistent

with the Code to include the stipulated terms.

In practical terms, the final two portions of Section 2, “Avoidance

of Delay” and “Fees and Expenses,” are significant because they are two of

the evils that Elson identified as underlying the need for a revised Code.

Delay is also significant because it is the most common complaint raised with

agencies and with the CPRG. The Code requires compliance with the time

limits imposed by the contract or the designating agency. The arbitrator must

plan his or her work schedule to allow for compliance with those limits. This

would include refusing work where the arbitrator knows that it will interfere

with timely performance of the arbitrator’s duties. An arbitrator who cannot

meet time limits is affirmatively obligated to communicate with affected

parties, request an extension of time, and provide them with a reasonably

accurate estimate of completion dates.

Fees are addressed at length and in detail, although in the end the

guidance amounts to (1) charge the rates you said you would charge when

the case began; (2) don’t charge for more time than you spend; (3) don’t

charge for more time than the case reasonably should have required; and (4)

don’t charge for expenses you didn’t incur. All of this is fairly common

sensical from a business standpoint, but the Code makes clear that it is also

an ethical requirement.

Responsibilities to Administrative Agencies

This is the briefest of the six Code sections, as the arbitrator’s

responsibilities to the administrative agencies are not complicated or

nuanced. The arbitrator is responsible for complying with the rules of a

designating agency and being truthful in any representations made to the

agency. The arbitrator must not seek improperly to influence any agency by

means such as gifts, and an arbitrator must acknowledge that the primary

responsibility of the agency is to serve the parties’ interests, and not the

arbitrator’s.

Prehearing Conduct

The last three sections of the Code address ethical requirements in

prehearing, hearing, and post-hearing conduct, but also include guidance as

to what is and is not good practice in those settings. For example, the brief

section on Prehearing Conduct includes the ethical directives, “All prehearing

matters must be handled in a manner that fosters complete impartiality by the

arbitrator” and all prehearing communications must be shared with all parties.

In between those ethical obligations, the Code offers what amounts to a

practice tip:

a. … If differences of opinion should arise during such

discussions [of procedural matters] and, particularly, if

such differences appear to impinge on substantive matters,

the circumstances will suggest whether the matter can be

resolved informally or may require a prehearing

conference or, more rarely, a formal preliminary

hearing….

This paragraph says nothing in particular about the ethics of the prehearing

procedures but gives guidance about the appropriate use of a prehearing

conference.

Hearing Conduct

The section on hearing behavior is somewhat longer than the others because

there are more issues that can arise concerning the hearing. It begins with a

statement of the general principles governing an arbitrator’s conduct in a

hearing:

An arbitrator must provide a fair and adequate hearing

which assures that both parties have sufficient opportunity

to present their respective evidence and argument.

a. Within the limits of this responsibility, an arbitrator

should conform to the various types of hearing procedures

desired by the parties.

b. An arbitrator may encourage stipulations of fact; restate

the substance of issues or arguments to promote or verify

understanding; question the parties’ representatives or

witnesses, when necessary or advisable, to obtain

additional pertinent information; and request that the

parties submit additional evidence, either at the hearing or

by subsequent filing.

c. An arbitrator should not intrude into a party’s

presentation so as to prevent that party from putting

forward its case fairly and adequately.

The section then goes into specifics on the use of transcripts and recordings,

and plant visits. These are governed by the wishes of the parties, when the

parties can agree. An arbitrator cannot insist on a transcript if the parties

disagree, unless that was made a condition of accepting an appointment. An

arbitrator may, however, avail him or herself of a transcript prepared for one

side. An arbitrator is required to consent to a plant visit at the request of

either party, or may request a plant visit.

This section also provides that the possibility of an ex parte hearing

can be consistent with the Code, with the rather general guidance, “In

determining whether to conduct an ex parte hearing, an arbitrator must

consider relevant legal, contractual, and other pertinent circumstances.” The

arbitrator is also required to be certain that the party who is not in attendance

was given notice of the time, date and place of the hearing.

Finally, the section on Hearing Conduct requires the arbitrator to

honor the parties’ agreement as to the issuance of a bench decision, as long

as the arbitrator knew of that requirement when accepting the appointment.

If not, the arbitrator may decline to issue a bench decision, and if it is only a

unilateral request, the arbitrator should refuse absent “most unusual

circumstances.”

Post Hearing Conduct

Section 6 of the Code spells out the arbitrator’s general duty to

respect the practices and agreements of the parties with regard to post-hearing

briefs or arguments, and the arbitrator’s right to resolve disputes over whether

briefs should be required.

The section addresses the Award, beginning with the prohibition on

disclosing the terms of the Award to one party before it is provided to the

other, recognizing that in tri-partite situations it may be permissible to share

a proposed Award with the party arbitrators, and that in some settings the

parties may want and expect the arbitrator to use a draft of an award to

promote stipulations or agreement. The provision on Awards again mixes

ethical directives with advice on good practice. The general requirement is

that the award should be “definite, certain, and as concise as possible.” This

is followed by advice on the factors to be considered in drafting the Award:

a. When an opinion is required, factors to be considered

by an arbitrator include: desirability of brevity, consistent

with the nature of the case and any expressed desires of the

parties; need to use a style and form that is understandable

to responsible representatives of the parties, to the grievant

and supervisors, and to others in the collective bargaining

relationship; necessity of meeting the significant issues;

forthrightness to an extent not harmful to the relationship

of the parties; and avoidance of gratuitous advice or

discourse not essential to disposition of the issues.

Again, these are not ethical commands but simply sound advice to the

arbitrator.

The final portion of Section 6 addresses the arbitrator’s role after

the issuance of the Award. First, the Code makes clear that the doctrine of

functus officio is an ethical principle, in that “No clarification or interpretation

of an award is permissible without the consent of both parties.” The obvious

corollary point is that even where there is a provision for clarification or

interpretation, both parties must be heard before any decision is made. There

is, however, an exception to the rule against clarification or interpretation,

and that deals with the remedy. Remedial jurisdiction may be retained, with

or without the consent of the parties, for the sole purpose of resolving “any

questions that may arise over application or interpretation of a remedy.” The

final provision of the Code makes it clear that an arbitrator has no role in the

enforcement of an Award, and that the confidentiality of arbitration requires

that an arbitrator not voluntarily participate in any enforcement proceeding.

The Evolution of the Code – Procedures for Amendment

As there are three parties to the Code, any amendments must be

accepted by all three in order to become effective. While amendments may

be proposed by the FMCS or the AAA, in practice since 1974 the Academy

has initiated all amendments. The Academy’s process for amendments is

specified in Article IV, Section 2 of the By-Laws. It generally requires that

they be drafted by the CPRG and approved by a two-thirds vote of that

committee. The draft is then presented to the AAA and the FMCS for

approval. If approved, the amendment is then returned to the Academy for

approval by the Board of Governors and adoption by the membership at an

Annual Business Meeting.

Given the fairly comprehensive coverage of the Code, and the

cumbersome process for amendments, there have been few changes since the

original adoption in 1974. The first was in 1985, when a long simmering

disagreement over the ethics of requesting permission to publish awards was

resolved by allowing an arbitrator to seek permission in writing at the

hearing, with an option for a party to revoke permission within 30 days of

issuance, or through the inclusion of a statement at the time of issuance to the

effect that the arbitrator wishes to publish the award, and that a failure to

object within 30 days will be treated as implied consent to publication.

In 1996 the Preamble of the Code was amended to clarify that an

arbitrator serving as a decision maker (either binding or recommended) under

a statute, employment contract, unilaterally adopted dispute resolution

system, court order, fair share mechanism, or the like should be guided by the

provisions of the Code in rendering such services. (In conjunction with this

charge, Section II A.3 of the Code was amended to make clear that an

arbitrator is under no obligation to accept appointment under a unilaterally

adopted process, but that if he or she chooses to do so, there would be a duty

to disclose any on-going relationship with the employer or union.) Article II,

Section 1 of the NAA Constitution was also amended to add “and

employment” in the Academy’s Statement of Purpose describing the scope

of the Academy’s promotion of the study and understanding of arbitration,

and its cooperation with other institutions. As discussed immediately below,

the intent and impact of these changes remains a matter of considerable

controversy within the Academy.

Separately, in 1996, the Academy’s ban on advertising was slightly

loosened. However, in 2003, following a threat of litigation by the Federal

Trade Commission, the Academy agreed to remove the ban entirely, with the

exception of advertising deemed to be “false or deceptive.”

This was then

extended to allow written solicitations of work, so long as the solicitation is

not “false or deceptive” and the solicitation is copied to the other party to the

contract.

In 2007 the last major amendment was made, providing that an

arbitrator could, on his or her own motion, properly retain jurisdiction over a

case to resolve disputes over the remedy ordered. This is distinct from any

effort to interpret or clarify nonremedial aspects of the Award, which remain

strictly prohibited unless agreed by the parties.

See infra ch. 12, Richard I. Bloch, “The Academy and the FTC.”

The Code’s Application to Employment

Arbitration and Other ADR Mechanisms

The Code and the predecessor Code of Ethics were intended to guide

and regulate the conduct of arbitrators in labor-management disputes. With

the rise of ADR and the increasingly diverse activities of neutral practitioners,

the question arises “what is the place of the Code in neutral dispute regulation

other than labor-management disputes?” This is a point of some controversy

and disagreement within the Academy itself.

In 1993 a committee chaired by Michael Beck issued a report

addressing the role of the Academy, if any, in employment arbitration.

recommended, in essence, elevating employment arbitration to an equal

footing with labor-management arbitration as a focus of the Academy’s

activities and purposes. While much of the report was adopted, the statement

of purpose in Article II of the Constitution was amended in a far more modest

way, simply recognizing that the Academy had an interest in both labor and

employment disputes, and in cooperating with other institutions sharing those

interests.

In 1996, however, amendments were made to the Code itself

addressing the broadened scope of the disputes members of the Academy

were called upon to resolve. It is fair to say that the general ethical regulation

of employment arbitration was not the primary focus of these changes. The

larger issue of the day was whether the arbitrator had an obligation to accept

grievance style disputes arising from unilateral employer policies, or fair

share and agency fee cases arising from unilateral union policies. The Code

amendments, authored by George Fleischli for the CPRG, made it clear that

acceptance of such cases was purely voluntary.

That was the only

substantive amendment of the Code. However, the Foreword and the

Preamble were also amended. The amendment of the Foreword was simply

made as part of a recitation of the history of amendments over time.

The rewriting of the Preamble was arguably more substantive in

nature and gives rise to the disagreement within the Academy. The Preamble,

as previously discussed, is an important source of guidance for those seeking

to understand and apply the Code. As rewritten, the Preamble, in both the

“Background” and “Scope of Code” sections, strongly suggests that the Code

is intended to cover the wide range of dispute resolution activities Academy

members engage in, including employment arbitration:

Preamble

Background

The provisions of this Code deal with the

voluntary arbitration of labor-management disputes and

For other views of the Beck report and succeeding developments, see infra ch. 9, Dennis R.

Nolan, “The Academy’s Encounter with Employment Arbitration.”

Code of Professional Responsibility, Section 2 – Responsibilities to the Parties, Subsection

A.3: “An arbitrator who is asked to arbitrate a dispute under a procedure established

unilaterally by an employer or union, to resolve an employment dispute or agency shop or

fair share dispute, has no obligation to accept such appointment. Before accepting such an

appointment, an arbitrator should consider the possible need to disclose the existence of an

ongoing relationships with the employer or union.”

certain other arbitration and related procedures which

have developed or become more common since it was first

adopted.

…

Arbitrators of labor-management disputes are

sometimes asked to serve as impartial third parties under

a variety of arbitration and related procedures dealing

with the rights and interests of employees in connection

with their employment and/or representation by a union. In

some cases these procedures may not be the product of

voluntary agreement between management and labor.

They may be established by statute or ordinance, ad hoc

agreement, individual employment contract, or through

procedures unilaterally adopted by employers and unions.

Some of the procedures may be designed to resolve

disputes over new or revised contract terms, where the

arbitrator may be referred to as a Fact Finder or a member

of an Impasse Panel or Board of Inquiry, or the like. Others

may be designed to resolve disputes over wrongful

termination or other employment issues arising under the

law, an implied or explicit individual employment contract,

or an agreement to resolve a lawsuit. In some such cases

the arbitrator may be referred to as an Appeal Examiner,

Hearing Officer, Referee, or other like titles. Finally, some

procedures may be established by employers to resolve

employment disputes under personnel policies and

handbooks or established by unions to resolve disputes

with represented employees in agency shop or fair share

cases.

The standards of professional responsibility set

forth in this Code are intended to guide the impartial third

party serving in all of these diverse procedures.

Scope of Code

This Code is a privately developed set of

standards of professional behavior for arbitrators who are

subject to its provisions. It applies to voluntary arbitration

of labor-management disputes and the other arbitration

and related procedures described in the Preamble,

hereinafter referred to as "covered arbitration dispute

procedures." [Emphasis added throughout the above

quotations]

As noted by Dennis Nolan and Ted St. Antoine in their chapter on

employment arbitration,

this language, on its face, would make the Code

applicable to employment arbitration cases not arising under a collective

bargaining agreement. The controversy is generated by the fact that these

See supra note 18.

changes were not, at the time they were adopted, generally understood as

having that effect, and have never been treated as having that effect. The

Code has never been applied to an employment arbitration case, and the great

majority of Academy members would, I believe, be surprised by the thought

that it could be. Even Professors Nolan and St. Antoine would concede that

the plain language argument for applying the Code to employment arbitration

was never advanced until after the effort to adopt a binding Code for

Employment Arbitration failed at the Academy’s 2013 meeting in St. Louis.

One of the principal arguments for refusing to adopt the proposed Code was

the unwillingness of our Code partner at the American Arbitration

Association to agree to outside regulation of its employment arbitrators.

Since the Code is a three-party system, it is very unlikely that the AAA

understood the 1996 amendments to extend Code coverage to employment

cases, and indeed – as noted by St. Antoine – its chief legal officer does not

believe those amendments did so.

Given the conflict between the plain language of the Preamble and

the history of the Code’s administration, it is safe to say that Academy

members acting as employment arbitrators would be well advised to conduct

themselves as if the Code applied, until the internal day of reckoning arrives

for the Academy on this question.

Enforcement of the Code

The Code imposes obligations on arbitrators, but it says nothing

about enforcement other than a passing reference in the Preamble. Each of

the three parties to the Code has at least a potential role in enforcing it. The

Code applies to labor-management arbitrators generally, including those who

are not members of the Academy if the arbitrator is appointed in the case by

the FMCS or the AAA. The AAA views its responsibilities as being primarily

to its clients and does not engage in formal enforcement activities. Instead, it

responds to Code violations by reducing (or eliminating) the number of

panels the arbitrator is listed on.

The FMCS, for its part, does have a formal

enforcement mechanism through its Arbitrator Review Board for cases

involving misconduct other than late awards. In cases of serious misconduct

other than untimeliness, if the Director of Arbitration Services cannot

satisfactorily resolve a complaint against an arbitrator, the arbitrator may be

given an opportunity to respond to the complaint, and the Arbitrator Review

Board may, if warranted, order an investigation and a due process hearing.

Otherwise, it may act on the basis of the complaint and the response.

Sanctions may extend as far as removal from the roster. In the case of late

awards, the FMCS will inquire and may suspend the arbitrator from the

panels for a period of time needed to address the underlying issue.

The NAA did not, in any meaningful way, enforce the Ethics Code,

aside from providing Advisory Opinions, cautions, and counseling.

Following the adoption of the Code of Professional Responsibility, the

Academy in 1975 replaced the Ethics and Grievance Committee with the

Robert Coulson, “Dissemination and Enforcement of the Code of Ethics,” in Arbitration 1988:

Proceedings of the 41st Annual Meeting, National Academy of Arbitrators 230 (Gladys W.

Gruenberg ed. 1988).

Jewel Myers, “Dissemination and Enforcement of the Code of Ethics,” id. at 235.

Committee on Professional Responsibility and Grievances (CPRG),

composed of a chair and such other members as may be appointed by the

president. By custom, the chair serves a three-year term.

With the establishment of the CPRG, the Academy adopted By-

Laws changes to provide due process in investigating complaints,

determining guilt, assessing penalties and providing for appeals (Article IV,

Section 2). The CPRG is the only one of the Academy’s standing committees

addressed in any detail in the By-Laws. It is charged with three

responsibilities. First, as noted above, the CPRG recommends amendments

to the Code. Second, as discussed in greater detail below, the CPRG drafts

formal advisory opinions, offering interpretations of the Code to advise

members and guide appointing agencies in the application of the Code. The

third and primary responsibility of the CPRG under the By-Laws is the

investigation and disposition of complaints against members for alleged

violation of the Code.

Upon receipt of a written complaint, the chair or the chair’s designee

is required to investigate the complaint, contacting the complainant and the

charged member. The investigation is to be conducted “using an informal

and conciliatory approach where appropriate,” which in practice means that

the chair will attempt to seek a voluntary resolution of the complaint.

Sometimes this involves clarifying what occurred, if there is a

misunderstanding between the arbitrator and the complainant, and sometimes

this involves active mediation, with the chair seeking some mutually

satisfactory resolution. In the case of a late award, for example, the chair

may seek a commitment from the arbitrator to issue the award within a set

period of time, and a commitment from the complainant that that will resolve

the complaint.

If the complaint cannot be resolved informally, the chair will gather

the relevant facts. The member is obligated under the By-Laws to respond

promptly and fully to any request for relevant information. On completing

the investigation, the chair will confer with two other members of the CPRG

and will determine whether there is probable cause to believe a violation has

occurred. If the chair determines there is no probable cause, the chair will

communicate that to the member and the complainant in writing, and the

complaint will be dismissed. If the chair finds probable cause, that too is

communicated in writing. The chair’s determination of probable cause is not

appealable. The target for concluding the investigation phase is 45 days from

the filing of the complaint.

If probable cause is found, the chair will designate a member of the

CPRG (other than the two who were consulted in making the cause

determination) to serve as a hearing officer. The hearing officer supplies the

member with the written charges, including a specification of what Code

provisions may have been violated. The member then has 21 days to respond

in writing. Failure to respond leads to a presumption that the allegations have

not been denied.

If there is no dispute of fact, the hearing officer may proceed based

upon the written record. If there are factual disputes, the hearing officer will

Although it is not specifically mentioned in the By-Laws, perhaps the major activity of the

CPRG is the provision of informal advice to members seeking guidance on the Code’s

applicability to a given situation.

set a hearing, giving at least 30 days’ notice to the complainant and the

member. The hearing is a private proceeding. Parties may be represented if

they wish, but the hearing need not follow formal court procedures. A record

is made at the Academy’s expense. Following the hearing, the parties may

submit briefs in support of their respective positions. The hearing officer will

provide a written report, setting out the findings of fact, and the appropriate

disposition of the charges. The evidentiary standard for finding a violation is

“clear and convincing evidence.” Article IV, Section 2e of the By-Laws

dictates the three possible outcomes of the hearing:

(i)

f the Hearing Officer finds that the charge has

not been proved by clear and convincing evidence, the

complaint shall be dismissed and both the complainant and

the charged member will be notified of this action by the

Chair of the Committee, who shall transmit a copy of the

Hearing Officer's report to both persons.

(ii)

f the discipline determined to be appropriate

by the Hearing Officer is either advice or reprimand, such

decision shall be conveyed to both the charged member and

the complainant by the Chair of the Committee together

with a copy of the report.

(iii)

f the Hearing Officer believes that discipline

more severe than advice or reprimand may be appropriate,

the Hearing Officer shall consult with two past presidents

of the Academy before arriving at a decision. Following

such consultation, if the Hearing Officer decides that

censure, suspension or expulsion from the Academy is the

proper discipline, that determination shall be transmitted to

the charged member and the complainant by the Chair of

the Committee together with a copy of the report.…

As should be evident, the hearing officer has a range of possible penalties available, depending

upon the severity of the offense and the prior history of the member. These penalties are defined

in the CPRG’s Policies and Procedures Manual:

Advice: Advice is the lowest level of discipline, suitable for violations that are

deemed minor and/or inadvertent. Advice may include guidance about what the

violation was, and how to avoid such violations in the future. It may also include

directions to take remedial action, such as sending a letter of apology or carefully

reviewing the Code. (CPRG revision 9/30/16)

Private Reprimand: A private reprimand is appropriate for violations of the Code

or Bylaws that are deemed to be relatively less serious and severe, or involve a first

offense. A private reprimand shall be communicated only to the charged member and

to the complainant.

More Severe Discipline: If the Hearing Officer determines that discipline more

severe than advice or a private reprimand is appropriate, the Hearing Officer shall

consult with two past Academy presidents before arriving at a decision. (CPRG

revision 9/30/16)

Public Censure: A public censure is appropriate for violations of the Code or

Bylaws that are deemed to be relatively more serious and severe, or involve a second

or subsequent offense. In the event a public censure is issued, the Executive

Secretary-Treasurer of the Academy will notify the membership of the name of the

member disciplined, the nature of the offense committed, and the discipline imposed.

This notification may be satisfied by publication in the Chronicle.

The decision of the hearing officer is final unless it is appealed

within 30 days to the Academy’s Appeals Tribunal. The Tribunal is a three-

member body appointed by the president, and it generally consists of senior

members of the Academy, often past presidents themselves. The Tribunal

receives written arguments in support of and opposition to the appeal. It

determines, on the basis of the record generated before the hearing officer,

whether the findings of fact are based on substantial evidence, and whether a

finding of a violation is supported by clear and convincing evidence.

The

decision of the Tribunal is final.

Where a charge is proved, but the appropriate discipline is no more

than advice or reprimand, notice of that discipline is provided to the member

and to the complainant. If, on the other hand, censure, suspension, or

expulsion is the appropriate discipline, the member and complainant receive

notice, and the executive secretary-treasurer of the Academy will notify the

Academy’s membership of the member’s name, the nature of the offense, and

discipline imposed, either by direct communication or by publication in The

Chronicle, which is the Academy’s official publication.

Non-Enforcement Activities to Further the Code

The bulk of the CPRG’s work does not involve hearing and

resolving complaints, but in helping members to avoid complaints. The chair

of the CPRG is the point of contact for inquiries about ethical obligations,

and the appropriate course of action where a member is unsure of how the

Code might apply to a particular situation. The chair also responds to

requests for guidance from parties who believe they may have grounds for a

complaint, and from designating agencies. These are informal and

Suspension or Expulsion: Suspension or expulsion is appropriate for violations of

the Code or Bylaws that are deemed to be the most serious and severe, or involve

multiple, repeated or egregious offenses. In the event the Hearing Officer determines

that suspension or expulsion is appropriate, the Hearing Officer will impose the

following terms of suspension or expulsion, as applicable, in accordance with the

guidelines adopted by the Board of Governors:

1. A suspension shall be for a minimum period of one year.

2. The member’s name shall be removed from the Academy directory and mailing

lists.

3. The member is prohibited from using the Academy’s name as a reference or for

identification purposes.

4. The member is prohibited from attending Academy members-only meetings.

5. The member may not serve in any Academy office or committee.

6. The member’s Academy-provided legal representation benefits are cancelled.

7. The member (or the Academy’s Executive Secretary-Treasurer if the member

prefers) shall notify all designating agencies listing the member that the member

has been suspended or expelled and shall request the agencies to omit Academy

membership from any biographical material for that member during a period of

suspension. A copy of the notice shall be sent to the CPRG Chair.

8. The Executive Secretary-Treasurer shall notify the Academy membership of the

disciplined member’s name, the nature of the offense committed, and the discipline

imposed. This notification may be satisfied by publication in the Chronicle.

9. The member’s obligation to pay dues and make Legal Representation Fund

contributions during a period of suspension is cancelled.

10. During a period of suspension, the member’s failure to comply with any of the

terms and conditions of suspension may result in expulsion from the Academy.

In rare circumstances, the Tribunal may also modify a penalty if it concludes that the hearing

officer’s proposed penalty is too harsh or too lenient.

confidential contacts, but they are by far the greater part of the chair’s work,

and the most valuable contribution the CPRG makes to the profession.

From time to time, the CPRG also issues formal Advisory Opinions,

explaining the correct application of the Code to a specific fact situation.

In the early days under the Code of Ethics, the issuance of Advisory Opinions

was the primary means of securing compliance with the Code. The

determination of when and on what subject to issue an Advisory Opinion is

within the discretion of the Committee, and the entire Committee will

participate, although initial drafting may be assigned to two or three

members. The chair will seek consensus, even though there is no requirement

of unanimity for the issuance of an Opinion. Once the Committee arrives at

an acceptable final draft, the chair presents it to the Board of Governors for

approval. If the Board accepts the draft, it is transmitted to the designating

agencies and is published on the Academy’s website. This same process is

followed for the revision or rescission of Advisory Opinions.

In 2016, faced with a series of inquiries from a designating agency

on a wide range of topics, the CPRG adopted a less formal system for more

quickly providing guidance on Code issues. Advice Letters are similar to

Advisory Opinions, in that they may address a specific situation or a general

question. An Advice Letter expresses the opinion of the current chair of the

CPRG as to the proper interpretation of the Code when a designating agency

requests such guidance, including whether the chair would or would not find

probable cause for a violation if presented with the facts described by the

agency. The Advice Letter is drafted by the chair and reviewed with at least

two other members of the CPRG, much the same as a probable cause

determination would be. The Advice Letter is not subject to approval by the

Board of Governors and is not published. All Advice Letters include the

admonition that “the advice contained therein is the opinion of the Chair who

drafted the letter, is not binding on the CPRG, and may be modified or

overruled by a future Chair.”

In addition to providing guidance to members and agencies, the

CPRG actively seeks to promote public awareness of the Code. The Code of

Professional Responsibility can only serve to increase confidence in the

members of the Academy and in the profession as a whole if it is known to

the consuming public. To that end, the Academy has taken steps to make the

Code and the complaint process more accessible to people outside of the

organization. The traditional method of publicizing the Code has been

through presentations at meetings of the Academy, the FMCS, and other

labor-management organizations.

By-Laws, Article IV, Section 2. These Opinions may be derived from actual cases, or they

may address issues of importance that have not yet been presented as complaints. They typically

require a year or more of drafting and editing before being presented for approval, although much

of that time resulted from the twice-yearly meeting schedule of the Committee. The increased

use of email and video for conducting business has compressed the time. In response to the 2020

coronavirus pandemic, for example, the CPRG issued Opinion 26, discussing the rights and

obligations of arbitrators faced with a demand for an in-person hearing. This Opinion was issued

on April 1, 2020 at the very beginning of the lockdowns.

The Academy has issued twenty-six Advisory Opinions in its history, eleven of which have

been rescinded, and two of which have been withdrawn, rewritten, and reissued.

CPRG Policies and Procedures Manual, as revised September 30, 2016.

In keeping with the digital age, the Code and the Formal Advisory

Opinions are available to the public on the Academy’s website at www.

NAARB.org. To increase accessibility, in 2016 the CPRG drafted a plain

language description of the complaint process, and how to initiate a

complaint. This too is on the Academy’s website, and it incorporates a

permanent email address for the chair of the CPRG

([email protected]), that people can use to file complaints or receive

information. The plain language version runs about one single-spaced page:

The NAA CPRG exists primarily for the purpose of

enforcing the Code of Professional Responsibility for

Labor-Management Arbitrators. The Committee has

jurisdiction only over members of the National Academy

of Arbitrators, not over employers, unions, lawyers, or

arbitrators who are not members of the NAA. The

Committee is not a forum for reviewing the merits of any

decisions or for appealing them.

• If you believe that an arbitrator has violated the Code,

you can make a complaint to the Chair of the CPRG

at [email protected].

• If possible, indicate what provisions of the Code you

think were violated. The Code is available on the

Academy’s website, www.naarb.org.

• Be specific about the conduct you think violated the

Code. If you cite rulings or decisions of the arbitrator,

specify which actions you are questioning. If possible,

provide the Chair with a copy of any award or decision

involved.

• It is also helpful to indicate whether there is something

the arbitrator can do to satisfy your concerns.

• The Chair will investigate the complaint. The Chair

will speak to the complainant and the arbitrator to

gather information and seek explanations for what has

occurred.

• The Chair will try to determine whether the parties in

the dispute can come to a meeting of the minds that

might resolve their dispute. The Chair will also

determine whether there is probable cause to believe

that a Code violation has occurred.

• Usually, the investigation is completed in about 45

days.

• At the conclusion of the investigation, the Chair

consults with two other members of the CPRG and

then makes a determination as to whether there is, or

is not, probable cause to believe the Code has been

violated. A finding of no probable cause is a final

determination and there is no appeal.

• If the Chair finds probable cause, he or she appoints a

hearing officer from among the members of the

CPRG, someone who was not consulted in making the

probable cause determination. The hearing officer will

determine facts relevant to the matter and consider

arguments made by the complainant and the arbitrator.

• In some cases, a formal hearing is required, but that is

not usual. If a hearing is required, it may be conducted

electronically. The hearing is not open to the public, it

is limited to the necessary parties, their

representatives, and witnesses. The parties may be

represented by lawyers, at their own expense.

• The hearing officer makes a decision as to whether a

violation has occurred and issues a decision. If the

hearing officer determines that a Code violation has

occurred, he or she will decide what penalty is

appropriate. The general range of penalties runs from

a private reprimand up to suspension or expulsion

from the National Academy of Arbitrators. The CPRG

cannot change any award or decision or award

damages to anyone.

• The hearing officer’s decision is final unless it is

appealed by either party within 30 days of its issuance.

There is a three member Appeals Tribunal which hears

these appeals. Their decision is final.

There was some initial concern within the Academy that a plain

language set of instructions on how to file complaints would encourage more

complaints, but that was not considered likely by the Committee. In fact, the

guide more probably has the effect of discouraging some complaints, since it

makes it clear that filing a complaint will not lead to removing the arbitrator

from the case, vacating an adverse award, or any award of monetary damages,

and that there must be some specific basis for a complaint beyond

dissatisfaction.

The Code in Practice

While the Code, the By-Laws, and the CPRG Practice and

Procedures Manual provide an elaborate system for enforcement, the fact is

that formal complaints are relatively rare, the appointment of a hearing officer

rarer still, and the imposition of penalties is quite rare. This may suggest that

there is no effective regulation of arbitrator conduct, but that would be

misleading. Members of the Academy routinely contact the chair of the

CPRG to ask for guidance when faced with a situation that may involve the

Code, or simply a situation in which they are uncomfortable with some course

of action. Thus, violations are avoided rather than remedied. Even if a party

feels aggrieved by some action of an arbitrator, it is the case that most

complaints are resolved before they ever come to the Academy’s attention,

simply through direct contacts between the arbitrator and the aggrieved party.

Voluntary resolution can also follow from contacts between the designating

agency and the arbitrator, since the complaining party always has the right to

go to the FMCS, AAA, or whatever agency made the appointment, and those

agencies would have no reason to contact the CPRG if the problem is

satisfactorily resolved.

Even when a complaint is received, the chair of the CPRG will

explore possible resolution with the complainant and the member, and a very

high percentage of cases will resolve at that step. If a complaint does not

resolve, the chair will investigate and make a probable cause determination.

Many complaints are brought on grounds that are not covered by the Code,

or seek remedies that are not available under the Code. Individual

complainants quite often come to the CPRG with what are, in essence,

disagreements with the arbitrator’s reasoning or rulings, hoping to have the

CPRG order the arbitrator off the case or the Award vacated. In those cases,

if the complainant will not accept that these are matters beyond the CPRG’s

domain, the chair in consultation with two other members will dismiss the

complaint as being unsupported by probable cause. Finally, if a complaint is

supported by probable cause, a member accused of serious misconduct will

quite often resign rather than face the hearing process and the possible

embarrassment that may follow. This complaint process applies only to

Academy members. Resignation terminates all proceedings, and resignation

may occur at any time before the actual imposition of a penalty. Thus, it is

likely that there will never be a formal expulsion from the Academy, given

that the degree of publicity and notoriety associated with an expulsion is more

damaging to the member than a simple resignation would be.

As much as

anything, then, the lack of formal action by the CPRG indicates the ready

availability of “off ramps” in the process, whereby a formal hearing is

rendered unnecessary.

It is, of course, the case that some matters do go to hearing and result

in a finding of a Code violation. In 2016 the chair of the CPRG examined all

of the disciplinary files to study the imposition of penalties and attempt to

determine what standards applied to penalty determinations. 1988 was the

first year in which a member was disciplined with anything more than an

Advice or Censure, even though the By-Laws had at least theoretically

provided for discipline above that level since at least the mid-1960s. In that

case a member was suspended for one year for excessive delay in providing

an Award, including ignoring inquiries and making apparently insincere

commitments to the parties and the CPRG.

Excessive delay is far and away the most common basis for formal

discipline. This makes sense because any party might have an interest in

bringing such a complaint, it is not hard to prove, and it is difficult to defend

against. The following sets forth a summary of penalties against members of

the National Academy of Arbitrators found guilty of misconduct:

Summary of Penalties

Nature of Complaint Penalty - Special Circumstances

Delay One Year Suspension - Member repeatedly failed

to issue the Award despite assurances to the

It should be noted that when a member resigns to terminate disciplinary proceedings, a record

of the proceedings is maintained by the Academy, and is shared with the Membership Committee

should the member ever reapply to the Academy. By-Laws, Article IV, Section 2.

parties, the appointing agency and the CPRG.

Delay in excess of three years.

Delay One Year Suspension - Member repeatedly failed

to issue the Award despite assurances to the

parties, the appointing agency and the

CPRG. Repeat offender. Delay in excess of three

years.

Delay Private Censure - Stipulated between member,

complainant, and CPRG.

Delay One Year Suspension - Member referred by

FMCS which removed the member from its

roster. This was the member’s fourth offense. The

members had also made repeated unmet promises

to produce Awards.

Delay Private Censure - Anecdotal – unknown number

of cases. This is the recollection of former Chair

Dana Eischen that this was the standard penalty

where the member was not a repeat offender

and/or had not misled the CPRG and designating

agencies.

Delay One Year Suspension - Anecdotal – unknown

number of cases. This is the recollection of

former Chair Dana Eischen that this was

the standard penalty when the member was a

repeat offender and/or had misled the CPRG and

designating agencies. This may be a duplicate of

the second delay case listed above.

Ex Parte Contacts / Censure - Good faith error based on ignorance of

Unilateral Disclosure the Code. The Appeals Tribunal found the

of terms penalty of Advice imposed by the hearing officer

was too lenient given the egregious nature of the

violation.

Excessive Fees No Penalty - The elderly, seriously ill member

had closed his practice by the time the complaint

was investigated.

Conflict of Interest/ Private Censure - Apparent good faith error.

Failure to Disclose

Conflict of Interest/ Violation Noted - Purely technical violation –

Failure to Disclose the conflict was attenuated and based on a

political relationship that was long in the past.

Conflict of Interest/ One Year Suspension - Negotiated outcome with

Failure to Disclose complainant, member, and CPRG chair.

Additional Functions of the CPRG - Membership Standards and

Internal Grievances

The CPRG’s primary job is the interpretation and enforcement of

the Code. It is, however, the only body in the Academy with processes for

the resolution of disputes. As such it has been treated as something like a

Swiss Army knife and tasked with several responsibilities unrelated to the

Code.

The CPRG and Membership Standards – Article VI, Section 6

In 1976 the Academy barred members from engaging in labor-

management advocacy. Members admitted before April 1976 were

grandparented as to labor-management advocacy in general but were

prohibited from appearing as advocates before other Academy members. In

May 2008 these prohibitions were extended to advocacy in other workplace

dispute resolution, again with a grandparenting provision.

These changes were made under the membership standards

provisions of the By-Laws, Article VI, Section 6, and do not represent ethical

violations. Rather, they represent the Academy’s judgment that advocacy by

Academy members is inconsistent with the nature and purposes of the

organization. As the original prohibition went to membership standards,

enforcement was vested in the Membership Committee. Over time, however,

it became clear that the Membership Committee was not logically structured

to undertake the fact-finding required when a violation might be alleged. In

May 1991, the By-Laws were amended to assign enforcement of this

provision to the CPRG.

The Academy’s Internal Grievance Procedure

Except in the most general terms, the Code does not regulate

dealings among members of the Academy. In response to complaints by

members, and after considerable study by a select committee formed for that

purpose, in May 2020 the Academy’s Board of Governors unanimously

adopted a policy directed at offensive interactions between members. The

Policy Statement is brief:

One of the stated purposes of the National

Academy of Arbitrators is to ‘encourage friendly

association among the members of the profession.’ We are

all accomplished professionals, or we would not have

qualified for membership. The hallmark of our dealings

with one another must be the respect due to a fellow

professional. The Board of Governors deems this a basic

obligation owed to the profession, the organization and one

another. It is the policy of the National Academy of

Arbitrators that any member who, in dealings with another

member, engages in harassment or discrimination fails in

this obligation and is subject to disciplinary consequences

to the same degree as a member who violates the Code of

Professional Responsibility.

Enforcement of this policy is through the Coordinator of Internal

Grievances, who is appointed by the president. The coordinator is an ex

officio member of the CPRG, and functions in an almost identical fashion as

the CPRG chair when presented with a complaint. The coordinator speaks

with the parties involved and seeks to determine whether a mutually

satisfactory resolution can be reached. If not, the coordinator investigates and

makes a probable cause determination, in consultation with two members of

the CPRG. If no probable cause is found, the grievance is dismissed. If

probable cause is found, the grievance is set for hearing. As with a complaint

under the Code, the probable cause determination on a grievance is final.

If the grievance is set for a hearing, the hearing is conducted by a

member of the CPRG selected by the coordinator. The hearing is conducted

using the complaint procedures of the CPRG. Unlike Code violations,

however, the hearing officer in a grievance case is guided by a schedule of

penalties, set forth in the policy itself. The normal progression of penalties is:

First offense: Confidential letter of caution,

maintained in the files of the coordinator.

Second offense: Confidential letter of reprimand,

maintained in the files of the coordinator.

Third offense: Letter of censure and warning,

issued by the executive secretary- treasurer and copied to

the members of the Executive Committee.

Subsequent offenses: Temporary or permanent

suspension of membership and membership privileges.

The imposition of this penalty must be authorized by the

Executive Committee.

The hearing officer has the discretion to determine that discipline shall

commence at a higher step in the progression if the nature or severity of the

conduct warrants.

In cases of objectively offensive conduct or a statement by another

member, or by a participant in Academy activities, which does not rise to the

level of harassment or discrimination, members are directed to report that

conduct or statement to the president or the executive secretary treasurer.

They are charged with making appropriate inquiries and, if warranted,

intervening with the subject of the complaint.

Conclusion

Lord Mansfield, the Chief Justice of England and Wales in the

1700s, is sometimes credited as having been the first to say: “A speech is like

a love affair. Any fool can start it, but to end it requires considerable skill."

Much the same can be said of a book chapter. The purpose of this exercise

has been to familiarize the reader with the challenges of professional self-

regulation is a diverse field. The National Academy of Arbitrators, in

conjunction with the FMCS and the AAA, has been engaged in that exercise

for nearly 75 years with varying degrees of success. The first third of that

time was spent in a passive and largely ineffective attempt, featuring the

articulation of standards without much effort to enforce them. The

conversion to the more proactive Code of Professional Responsibility and the

creation of the CPRG in the mid-1970s, together with a maturing of the

profession itself, led to a more vigorous and successful regulatory regime.

The CPRG’s reliance on advice, education, and outreach has allowed it to

police the profession without frequent recourse to formal disciplinary

procedures. This, it can be argued, is the true mark of success for any such

body.

Nathan Feinsinger

Benjamin Aaron, Rolf Valtin, Richard Mittenthal,

and Howard Block

Alex Elson

hapter 3

THE ACADEMY AT 75 AND THE ARBITRATOR OF

COLOR: REFLECTING WHAT IS, MOVING TO WHAT

SHOULD BE

Homer C. La Rue and Alan A. Symonette

Introduction

One experienced observer, Pamela Newkirk, has declared: “Our

current diversity conversation began in 1968, when President Lyndon

Johnson’s National Advisory Commission on Civil Disorders recommended

inclusion of African Americans in institutions that had historically excluded

them.”

In 1968 there was little attention paid to the other racial groups in

America who have suffered systemic oppression, some to the point of

extinction or nearly so.

For the purposes of this discussion, the authors will define diversity

in terms of race. Professor Newkirk, in her critique of the diversity industry,

shines a bright light on those who have made millions of dollars as diversity

trainers and diversity consultants.

The question posed is: Why is our society

not likely to reach Justice O’Connor’s deadline set in the Supreme Court

affirmative action decision in Grutter v. Bollinger

? The authors do not

suggest, by this reference to Justice O’Connor’s 25-year deadline, that the

Academy adopt an affirmative action program. We do say quite

emphatically, however, that the time for handwringing over the lack of

diversity is over, and that the Academy, like other American institutions,

must embark on a plan of action.

The authors also wish to speak to the scope of what will be included

in the term diversity as used in this essay. Professor Newkirk, cited earlier,

put it well, and we adopt her use of the term diversity. She writes (and we

interpolate):

Since 1968, diversity … has been expanded to

encompass other racial and ethnic minorities along with

women, people with disabilities, LGBTQIA individuals,

and other marginalized populations. However, given the

Pamela Newkirk, Diversity, Inc.: The Failed Promise of a Billion-Dollar Business (2019)

[hereinafter Newkirk, Diversity]. The advisory body was the Kerner Commission, which

“highlighted the need to address the shameful legacy of slavery and Jim Crow.” Id.

Id. at 5.

539 U.S. 306, 343 (2003) (per Justice O’Connor):

It has been 25 years since Justice Powell first approved the use of race to

further an interest in student body diversity in the context of public higher

education. Since that time, the number of minority applicants with high

grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We

expect that 25 years from now, the use of racial preferences will no longer

be necessary to further the interest approved today.

issues unique to each distinct group and the ways in which

the plight of racial minorities in general and African

Americans in particular have been overshadowed by other

categories within this overtaxed term, … [the authors] will

specifically address the progress … [the Academy] has

made toward racial diversity.

Finally, the authors define their use of the phrase diversity and

inclusion. “In recent years, organizations have begun to use the term diversity

and inclusion to underscore the need for compositional diversity and

institutional belonging.”

Put colloquially, “diversity is being invited to the party, inclusion is

being asked to dance.” We use the term diversity to cover both.

Bringing the Issue Front and Center

A Contemporary Event That Refocused a Long-Standing Problem

The recognition of the lack of diversity in the ranks of the

membership in the NAA became the subject of significant discussion soon

after the founding of the Academy in 1947. There also have been several

attempts to increase the number of members of color, with little success.

The lack of diversity in the Academy is not unique to the Academy. The lack

of diversity in the ADR (alternative dispute resolution) field has existed

almost since the term “ADR” was coined years ago.

An event quite unrelated to the Academy or to labor-management

arbitration focused attention on this long-standing issue. On November 28,

2018, an article in the music pages of The New York Times described a

commercial dispute between an entrepreneur, Shawn Carter, and the Iconix

Brand Group.

The dispute concerned a trademark infringement matter

involving the use of the “Roc Family” of trademarks principally promoted

and associated with the well-known hip-hop performer Shawn Carter (“Jay-

Z”). Jay-Z was sued by Iconix because his entertainment company called

Roc Nation had entered into an agreement with Major League Baseball to sell

New Era baseball caps with the Roc Nation paper airplane logo. Iconix

claimed that the agreement violated the original sale agreement with Jay-Z

involving the sale of his Rocawear Brand. Jay-Z counterclaimed saying that

the agreement he had with Iconix applied only to Rocawear, not Roc Nation.

The agreement of sale provided that the parties were to have the matter

presented to a panel of arbitrators under the rules of the American Arbitration

Association applicable to Large and Complex Cases.

Newkirk, Diversity, supra note 1, at 3 (emphasis in the original).

Id. at 5 (emphasis in the original).

“Report of the Special Committee to Review Membership and Related Policy Questions of the

Academy – Otherwise Known as the Reexamination Committee,” in Arbitration 1976,

Proceedings of the 29th Annual Meeting, National Academy of Arbitrators 361 (1977).

“Jay-Z Says Arbitrators’ Race Matters in Dispute,” N. Y. Times, Nov. 30, 2018, at C3

[hereinafter “Jay-Z Says”];

Deb Sopan, “Jay-Z Criticizes Lack of Black Arbitrators in a Battle Over a Logo,”

https://www.nytimes.com/2018/11/28/arts/music/jay-z-roc-nation

arbitrators.html?searchResultPosition=1 (Nov. 28, 2018) [hereinafter Sopan, “Jay-Z

Criticizes”].

The AAA provided a list of twelve arbitrators to the parties from its

database of neutrals qualified to handle such cases. According to Jay-Z, he

“could not identify a single African-American arbitrator on the Large and

Complex Cases roster.”

Jay-Z expressed his concern to the AAA and

discovered that out of the 200 eligible arbitrators on the roster only three

identified as African-American, two men and one woman. One of the men

had a conflict of interest, leaving just two arbitrators to choose from. On

November 27, 2018, counsel for Jay-Z filed a petition asking the New York

Supreme Court (the trial court) in Manhattan to enjoin the processing of the

arbitration if the dispute was not resolved. The New York Times article stated:

“The dearth of qualified Black arbitrators deprives litigants of color of a

meaningful opportunity to have their claims heard by a panel of arbitrators

reflecting their backgrounds and life experience: because of ‘unconscious

bias’ that most people have against people of different races, Jay-Z’s lawyer,

Alex Spiro, wrote in the filing.”

This according to the lawyers was a form

of racial discrimination. The Times noted that the petition did not cite any

legal precedent. The article added, however, that courts have ruled that jurors

in criminal trials cannot be eliminated from jury pools on the basis of race.

Diversity in Labor Arbitration and in the Academy –The Challenges to

Inclusion

The lack of diversity is not novel to those who have been deeply

involved in the arbitration of labor-management and employment disputes.

This issue has always had critical resonance in an increasingly diverse

workforce. Arbitrators of these disputes in general, and NAA members in

particular, enjoy a reputation of upholding the “highest standards of integrity,

competence, honor and character among those engaged in the arbitration of

labor-management disputes on a professional basis.…”

Given the

sentiments raised by Jay-Z and

others, combined with the criticism of the

arbitration process in other areas of dispute resolution, arbitration as a dispute

resolution mechanism has come under increasing danger of losing critical

credibility.

The objective of this chapter is to discuss the current demographic

makeup of the Academy membership, the factors that have contributed to the

disparity in the racial makeup of professional arbitrators, and the efforts of

the Academy to recruit arbitrators of color as well as its current

endeavors to encourage parties to fully consider and select these arbitrators

for their panels. We will also be including extensive quotations from

James Harkless, the fifth member and the first and until now the only

African American President of the Academy.

He served in 1998-99.

Sopan, “Jay-Z Criticizes,” supra note 7.

“Jay-Z Says,” supra note 7.

The petition itself was not published. For an understanding of the underlying dispute, see

Iconix Brand Group., Inc. v. Roc Nation Apparel Group, LLC., 2019 U.S. Dist. LEXIS 169140

(S.D. N.Y. 2019).

See www.naarb.org/who-we-are/.

Arbitrator Harkless was interviewed extensively for the NAA’s newsletter, The Chronicle. He

was interviewed in 1995 and 1996 by Clara Friedman and in 2006 by Anna Duval Smith. All the

interviews are available on the NAA’s website, https://naarb.org/presidential-interviews/.

It is important to note that the authors of this chapter are males of

African ancestry. We broadly use the term “persons of color” to include those

men and women arbitrators whose ancestry derives from China, India, Japan,

and Latin America. All of them have contributed to the professionalism and

growth of the Academy but remain terribly underrepresented in its ranks.

There is limited information describing the extent of the lack of

diverse neutrals involved in labor-management and employment dispute

resolution. Neither of the major appointing agencies who have NAA

members on their roster, the American Arbitration Association (AAA) and

the Federal Mediation and Conciliation Service (FMCS), maintains

demographic statistics of its arbitrators. As members of the Academy,

however, we have been able to research the membership rolls of the

Academy. Through our personal knowledge and the Academy’s oral and

institutional history, we have been able to identify nearly all the persons of

color who have served or are serving as members.

The authors have determined that as of the 2019 Annual Meeting,

the Academy had accepted 1488 members over its 73-year history;

approximately 43 persons or 2.88% of that group were persons of color. Half

of those persons of color were admitted within the last 25 years. The

Academy currently has 36 members of color. A graph showing those numbers

is included as figure 1.

Figure 1: The axis at the top of the graph represents each year of the Academy. Each bar

represents one person of color’s tenure as a member of the Academy. All except one member

left the NAA due to death. One person retired from membership.

According to the graph above, the first person of color, Lloyd H.

Bailer, became a member of the NAA in 1950. The following are the net

total number of members by decade:

1950 – 1960 1

1960 – 1970 2

1970 – 1980 10

1980 – 1990 19

1990 - 2000 23

2000 - 2010 25

2010 - 2020 36

To appreciate the few members of color in the NAA, one must

consider the various factors that contribute to the overall demographic

makeup of professional arbitrators. Most of these factors have a neutral

impact on the challenges one must face to become a professional arbitrator.

One’s success in the profession depends almost exclusively on the ability of

the individual to be recognized and selected by the parties as being

competent, as being fair and ethical, and capable of doing the best job

possible in resolving the underlying dispute. In selecting an arbitrator, the

parties almost consistently select arbitrators with whom they are comfortable

based on reputation or prior experience. In short, the parties tend to select

“who they know.” This practice can at times lend itself to unintended biases

or a failure to recognize equally competent and capable but somewhat less

experienced neutrals.

Generally, a successful arbitrator is one who is acceptable to the

parties.

That person is recognized as one who can run a hearing and is

discerning and judicious in their writing and decision-making. There is no

certification process for one to become eligible to serve as an arbitrator.

Arbitrators usually have extensive prior experience as advocates, teachers,

judges, or hearing officers. After that, however, there are stark differences in

the path an arbitrator must take to be recognized as a practitioner in the field.

This depends on whether one intends to arbitrate issues that arise in the

nonunion employment field or issues arising under a collective bargaining

relationship.

To work as an employment arbitrator, one gains the necessary

experience advocating on behalf of employers or employees as litigators or

in-house counsel. Over time, even before the person begins to serve as an

arbitrator, the individual becomes recognized as someone who not only

knows the process of dispute resolution but is civil and fair to all parties.

What is important here is that anyone seeking to arbitrate employment

disputes may continue their practice on behalf of employers or employees

while deciding those nonunion cases.

On the other hand, one who wishes to arbitrate labor-management

disputes must also be experienced in the area and recognized by the parties

but, significantly, in order to be listed by leading appointing agencies, must

not act as a partisan advocate while serving as an arbitrator of labor-

Membership in the Academy is premised in part on the acceptability of the applicant to the

labor-management community as a neutral. The NAA By-Laws, Article VI, Section 1 in

pertinent part reads:

***

In considering applications for membership, the National

Academy of Arbitrators will apply the following standards: (1) the

applicant should be of good moral character, as demonstrated by

adherence to sound ethical standards in professional activities. (2) The

applicant should have substantial and current experience as an impartial

neutral arbitrator of labor-management disputes, so as to reflect general

acceptability by the parties. (3) As an alternative to (2), the applicant with

limited but current experience in arbitration should have attained general

recognition through scholarly publication or other activities as an

important authority on labor management relations. (Added by

Amendment May 26, 2007) (emphasis added).

See https://naarb.org/constitutions-and-by-laws/.

management disputes. Therefore, many labor–management arbitrators have

been former officials with government agencies, notably the National Labor

Relations Board or other labor-focused federal and state agencies. Many are

academicians engaged in the study of labor relations law or policy. Since

labor and employment arbitrators need not have a law degree, many also have

experience as former management executives or union representatives.

Most important, regardless of the path initially taken to become a

professional arbitrator, in order to qualify for membership in the NAA,

arbitrators cannot be partisan advocates when serving as either a labor-

management or employment arbitrator.

In this regard, it is acknowledged

that these requirements of neutrality do place a unique burden on a person

seeking to become a labor or employment arbitrator and Academy member

regardless of demographic category. The candidate must effectively stop his

or her practice and find another source of income while building an

arbitration practice and seeking Academy membership. As a practical matter,

since listing with a leading appointing agency is so important, the potential

arbitrator with extensive experience as an advocate in the labor field

ordinarily has to relinquish that practice and its income in order to practice as

a labor-management neutral, regardless of any aspirations about joining the

Academy.

The neutrality requirement has supported the integrity of those

arbitrators committed to the collective bargaining process. Nevertheless,

some have suggested that the advocacy standard be relaxed for some limited

time to enable more candidates of color to enter the field without presenting

a significant risk to their livelihood while they are struggling to make a “go

of it.” Many would disagree. Indeed, several parties have wondered if one

can maintain a positive collective bargaining relationship if the person on the

NAA By-Laws Article VI Membership, Section 6 states:

Pursuant to the membership policy adopted on April 21, 1976 and

amended on May 24, 2008 the Academy deems it inconsistent with

continued membership in the Academy:

a) For any member who has been admitted to membership since April

21, 1976 to undertake thereafter to serve partisan interests as

advocate or consultant for Labor or Management in labor-

management relations or to become associated with or to become a

member of a firm which performs such advocate or consultant work.

b) For any member who has been admitted to membership since May

24, 2008, to undertake thereafter to serve partisan interests as

advocate or consultant of an employee or employer in any

workplace dispute proceeding or to become associated with or to

become a member of a firm which performs such advocate or

consultant work. (Added by Amendment May 24, 2008.)

c) For any member to appear, from and after April 21, 1976, in any

partisan role before another Academy member serving as a neutral

in a labor-relations arbitration or fact-finding proceeding.

d) For any member to appear, from and after May 24, 2008, in any

partisan role before another Academy member serving as a neutral

in any other workplace dispute proceedings. (Added by Amendment

May 24, 2008.)

See https://naarb.org/constitutions-and-by-laws/.

It should be noted that the numbers of cases counted to meet the membership

threshold are weighted differently depending on whether a case is a labor-

management dispute rather than a “workplace” dispute.

other side of the bargaining table one day is your arbitrator in another matter

the next. Any advantage that may be given to candidates because of this

change will have a far greater impact on the integrity of the process and

unfairly label such persons as being somehow underqualified to adequately

handle cases as arbitrators.

James M. Harkless, the First African American President of the Academy

For James Harkless, success as an arbitrator was due to an

understanding of labor relations based on his personal experience in the

workplace combined with his diligence as a labor lawyer. Prior to college he

worked beginning as a paper boy at the age of 10, shining shoes at 12, and

then in the local A&P.

He attended Harvard beginning in 1948 as one of

only four Black students in his class.

While in college he worked in the

foundry at Ford Motor Company in Detroit. His father was one of the first

Black foremen at that facility.

Harkless then attended Harvard Law School and studied labor law

with Archibald Cox.

After graduating, he interviewed in Detroit at the

UAW and Chrysler and several white firms. However, he returned to

Massachusetts and worked for the firm of Grant and Angoff, which

represented organized labor. At the firm he handled negotiations and

presented a number of arbitrations. In 1961 he moved to Washington, D.C.,

where he worked for the NLRB and the Customs Service, and was the

Executive Secretary in the Office of Equal Employment Opportunity. He

returned to arbitration in 1970.

Harkless was interviewed and selected by Bethlehem Steel and the

United Steelworkers Union to serve as one of their umpires. During that time,

Harkless was given a guaranteed income as a fledgling arbitrator at the same

level he was receiving in private practice. Harkless observed that “at my

stage in life, in my early forties with children and a wife, I could not have

made that career change if I had to risk earning an equivalent income as an

arbitrator.”

Such an arrangement is practically unheard of for new

arbitrators today.

As the authors were completing this chapter, the 2020 Nominating

Committee of the Academy announced Homer C. La Rue as the nominee for

President of the Academy in 2022. La Rue expressed his gratitude to his

Academy colleagues who supported his nomination. He also echoed the

words of Past President Margaret Brogan in her 2017 Presidential Address

when she commented on her being President of the Academy:

I was reminded that the Academy’s story includes

the fact that even though this is the 70th birthday of the

National Academy of Arbitrators, I am only the seventh

woman to be president of the Academy… There was a 25-

year gap in the Academy’s history from 1980 to 2005 when

Clara Friedman, Interview of James M. Harkless, Nov. 10, 1995,

https://naarb.org/interviews/JamesHarkless.PDF, at 3.

Id.at 5-6.

Id. at 13.

Clara Friedman, Interview of James M. Harkless, June 25, 1996,

https://naarb.org/interviews/JamesHarkless.PDF, at 18.

no woman was called to be president despite many

illustrious and worthy female members in our ranks. This

history is important to remember.

La Rue noted that his call to the presidency upon the 75th

anniversary of the National Academy of Arbitrators marks him as only the

second Black man or woman to be president of the Academy. He further

noted the irony of the similarity between the 25-year gap (1980 to 2005) “…

when no woman was called to be president ….” and the 24-year gap (1998 to

2022) between the presidency of James Harkless and that of La Rue. As did

Past President Brogan, La Rue observed that there was this hiatus “… despite

many illustrious and worthy … [Black persons] in our ranks.”

Obstacles to Entry and Efforts to Overcome Them

Even if an individual is able to begin work as an arbitrator, the

parties, as the gatekeepers

to the selection of neutrals, use a variety of

processes and have differing reasons for selecting an arbitrator. The selection

may depend on the parties’ comfort level with the arbitrator based on one’s

perceived fairness and the comfort of the client. Parties have expressed

preferences for arbitrators because of the nature of the case, the arbitrator’s

fee schedule, his or her willingness to travel, and his or her handling of

expenses.

The selection process may include certain biased perceptions based

upon an arbitrator’s race or gender as it relates to the arbitrator’s ability to

make fair and reasoned decisions. Some parties have found the power

dynamic between the arbitrator and the advocates to be contrary to certain

expectations. Some parties have also based preferences on the perception

that an arbitrator’s race or gender may show a bias toward individuals of the

same race

or gender.

It would not be accurate to conclude that the NAA has ignored the

lack of diversity in the ranks of its members and in the arbitration profession

in general. Indeed, the NAA as well as the appointing agencies have been

engaged in the mentoring and nurturing of new arbitrators of color. Past

Presidents have periodically made statements noting these mentoring

attempts in their remarks. The largest effort prior to 2010 occurred in 1973

Margaret R. Brogan, “Presidential Address: Changing the Narrative: A Call to Increase

Diversity and Inclusion in the Ranks of the National Academy of Arbitrators,” in Arbitration

2017: The New World of Work, Proceedings of the 70th Annual Meeting, National Academy of

Arbitrators 245 (Stephen L. Hayford ed. 2018). See also https://naarb.org/presidential-

addresses/.

The gatekeeper phenomenon is discussed in an earlier article co-authored by Homer La Rue,

also a co-author of this book chapter. While the focus in this chapter is on arbitration and the

issues related to the underutilization of persons of color and women, those issues are not limited

to the selection of neutrals in arbitration; rather, they apply equally to the selection of neutrals in

mediation—particularly high-stakes mediations. See Marvin E. Johnson & Homer C. La Rue,

“The Gated Community: Risk Aversion, Race, and the Lack of Diversity in the Top Ranks,” 15

Disp. Resol. Mag. 17 (Spring 2009).

See Homer C. La Rue, “The Ethics of Disclosure by Arbitrators of Color: Have the Rules

Changed?” 42 Lab. L.J. 619 (1991).

For example, interviews of James Harkless and Hon. Harry T. Edwards, “The Art and Science

of Labor Arbitration,” in College of Labor and Employment Lawyers, Video History Project.

See generally DVD: The Art and Science of Labor Arbitration (Carol M. Rosenbaum 2013).

when then-President Eli Rock created a Special Committee to Review

Membership and Related Policy Questions of the Academy, otherwise known

as the Reexamination Committee. Arbitrator Rolf Valtin served as Chairman.

The initial charge of the Committee was quite broad, considering

questions relating to many features of Academy life, including the size and

nature of the Annual Meetings, the dues structure, and whether the operations

office should be staffed by paid assistants. The Committee decided, however,

to confine its work to six topical areas and made recommendations and

explanatory comments. Those areas were the following:

1. Whether the Academy should merge with the

Society of Professionals In Dispute Resoluti

[

“SPIDR”]; 2. Whether SPIDR’s existence should

affect NAA membership policy; 3.The size of the

Academy as to its administration and the character of

the Annual Meetings; 4. Admission standards

particularly the “Substantial and Current” standard; 5.

Representational Work; and 6. the “Grandfather

Policy” relating to representational work.

hile the question of representational work garnered the most

dissent in the Committee, the Committee report spent most of its time

discussing the “Substantial and Current” standard. At that time, the

membership standards were found in a document entitled, “Statement of

Policy Relative to Membership.” Clause 2A represented the fundamental

requirement for admission to membership. It stated: “The applicant should

have substantial and current experience as an impartial arbitrator of labor–

management disputes.”

The Committee acknowledged that “there are those who believe that

the Academy has been too restrictive in its admissions policy and who,

particularly in the light of the emergence of public-sector bargaining and its

mediation and fact-finding roles, want to open things up.” After a discussion

about what that standard means with respect to the number of demonstrated

cases and its charges of possibly being a “closed shop” or “elitist,” the

Committee decided that the standard be retained substantially both in

language and in application. It noted that certain factors be given weight.

What is of particular note in this report is an acknowledgment of the

gender and racial makeup of the Academy membership. Specifically, the

Committee recognized the following facts:

“Report of the Special Committee to Review Membership,” supra note 6, at 363–78.

The current version of that standard is found in Article IV, Section 1 of the current By-Laws.

It states: “The applicant should have substantial and current experience as an impartial neutral

arbitrator of labor-management disputes, so as to reflect general acceptability by the parties.”

See https://naarb.org/constitutions-and-by-laws/.

Those weighted factors mentioned are: 1. “The applicant has attained stature or unusual

competence in the field of labor–management relations.” 2. “The applicant is from a

geographical area which has relatively little industry.” 3. “The applicant is of relatively young

age and shows unusual promise by such indicators as selection for ‘min’ or ‘expedited arbitration

work, special training under an established arbitrator or arbitrators, or extensive formal and

relevant education.” According to the Committee, “These factors as crediting factors does not

represent the downgrading of the Academy’s quality objective.” See “Report of the Special

Committee to Review Membership,” supra note 6.

“It is to be understood that we gave long

consideration to the underrepresentation of minority

groups and women in the Academy’s membership. Out of

a total of about 450 persons, the Academy has seven blacks

and five women. These are plainly distressing statistics.

But the Academy cannot itself rectify them without

abandoning general acceptability by the parties as the

central measure of qualification for membership.

Nevertheless, the reiteration of the Academy’s long and

firm policy against discrimination on the basis of race or

sex should be part of this report. And we additionally make

these observation: that it is silly to deny that blacks and

women have often been denied a fair opportunity to

demonstrate their capabilities, and thus establish the degree

of acceptability needed for Academy membership; that it is

incumbent on the Academy to cooperate in every

appropriate way with programs designed to encourage the

continued development of competent, qualified arbitrators

among women and minority groups; and that we would be

less than proud of an Academy which failed to be sensitive

to the barriers facing these potential members.”

This final version of the report does not really describe the nature of

the debate. According to Arbitrator Harkless, one of the original

recommendations was that there should be a “tilting factor for females and

minorities.” Harkless recalled that several members opposed the proposal.

“Reg Alleyne … was appalled…. Harry Edwards … spoke against it. Marcia

Greenbaum spoke against it.”

In Harkless’s opinion, “Affirmative action

in my view should not operate with a lesser standard…. But it certainly is a

mistake in my view to have minorities or females accepted where the majority

white male population feels that they were being given something they don’t

deserve, with lesser qualifications/requirements than apply otherwise.”

The Academy’s Current Efforts to Address Membership Diversity

Challenging the Status Quo, Creating the New Paradigm

ABA Resolution 105. The discussion in this section must be placed in the

context of the larger ADR community. In August 2018, the ABA House of

Delegates adopted ABA Resolution 105, encouraging providers of domestic

and international dispute resolution services to expand their rosters with

minorities, women, persons with disabilities, and persons of differing sexual

“Report of the Special Committee to Review Membership,” supra note 6, at 370–71.

Clara Friedman, Interview of James M. Harkless, June 25, 1996,

https://naarb.org/interviews/JamesHarkless.PDF, at 36-37. Reginald Alleyne became a member

of the NAA in 1975. He died in 2004. Harry Edwards became a member of the NAA in 1972.

He is currently the Chief Judge Emeritus of the U.S. Court of Appeals for the District of

Columbia Circuit. Alleyne was and Edwards is African American. Marcia Greenbaum became

a member in 1973. She was one of the first women to be inducted into the Academy.

Clara Friedman, Interview of James M. Harkless, supra note 27, at 37.

orientations and gender identities (“diverse neutrals”), and to encourage the

selection of diverse neutrals.

Resolution 105 reads:

RESOLVED, That the American Bar Association urges

providers of domestic and international dispute resolution

services to expand their rosters with minorities, women,

persons with disabilities, and persons of differing sexual

orientations and gender identities (“diverse neutrals”) and to

encourage the selection of diverse neutrals; and

RESOLVED, That the American Bar Association urges all

users of domestic and international legal and neutral services to

select and use diverse neutrals.

In a summary statement of the problem, the ABA Section of

Dispute Resolution noted:

The available data and materials outlined in the

report show starkly that diversity in dispute resolution

significantly lags the legal profession as a whole. The

problem can be broken down into two areas: the “roster

issue,” namely the still unrepresentative nature of the

panels of the major providers despite their efforts to

improve the situation; and the “selection issue,” the fact

that diverse neutrals on rosters are not selected as often as

their non-diverse colleagues. Both issues arise from the

network-based and confidential nature of the profession,

which undermine potential efforts to address the roster

issue and result in selection of neutrals taking place in

relative obscurity, enabling implicit bias to play a greater

role in the selection process. The limited prospects for

selection in turn discourage minority attorneys from

applying for acceptance on institution rosters. The lack of

transparency also minimizes public awareness of lack of

diversity in the field, thus reducing the incentive of

stakeholders such as clients, outside counsel, institutional

service providers, and established neutrals to take proactive

steps.

The ABA Section of Dispute Resolution goes on to outline steps that

advocates, providers, and membership organizations can take to further the

effectiveness of Resolution 105. In pertinent part, the recommendations are:

Nika Gholston & Rebecca Simpson, “Recognizing the Importance of Using Diverse Neutrals

in Family Cases: Preparing for Mediation Week and Implementing ABA Resolution 105,” in

ABA Section of Family Law, Alternative Dispute Resolution (Sep. 25, 2019),

https://www.americanbar.org/groups/family_law/committees/alternative-dispute-

resolution/diverse-neutrals/#:~:text=In%20August%20of%202018%2C%20the%20ABA%

20House%20of,and%20to%20encourage%20the%20selection%20of%20diverse%20neutrals.

See “ABA Resolution 105 – Diversity in ADR: Summary and Action Steps v. 1 for Steering

Committee Consideration,” in ABA Section of Dispute Resolution, Resources,

https://www.americanbar.org/groups/dispute_resolution/resources/aba-resolution-105/.

Id.

What Clients/Inside Counsel Can Do:

(a) Select diverse neutrals whenever possible.

(b) Include JAMS diversity inclusion language in dispute

resolution clauses: “The parties agree that, wherever

practicable, they will seek to appoint a fair

representation of diverse arbitrators (considering

gender, ethnicity and sexual orientation), and will

request administering institutions to include a fair

representation of diverse candidates on their rosters

and list of potential arbitrator appointees.”

institutions. The International Institute for Conflict

Prevention and Resolution (CPR) provides a

diversity pledge for clients and law firms: “We ask

that our outside law firms and counterparties include

qualified diverse neutrals among any list of mediators

or arbitrators they propose. We will do the same in

lists we provide.” The Equality in Arbitration Pledge,

focusing on women in arbitration, is available at

http://www.arbitrationpledge.com.

(d) Raise ADR diversity issue at internal and industry

association meetings.

(e) Raise issue with outside counsel:

(i) Circulate Resolution 105 and the Report to

outside counsel with a note supporting the

resolution.

(ii) Revise outside counsel guidelines to include

requirement that outside counsel present lists of

diverse neutrals, tying this effort directly to efforts

to increase diverse attorneys on teams pursuant to

ABA 113.

(iii) Ask outside counsel to use JAMS diversity

inclusion rider or similar language in contractual

dispute resolution clauses see (b) above).

(iv) Encourage outside counsel to take diversity

pledges (see (c) above).

(f) Raise issue with providers such as AAA, JAMS,

CPR and others:

(i) Encourage providers to increase diversity in

their rosters.

(ii) Ask for diverse neutrals to be included on

selection lists.

(iii) Ask for opportunities to meet or otherwise

become familiar with diverse neutrals on the

panels of major providers.

What Outside Counsel Can Do:

(a) Promote Resolution 105 and the Report in internal

firm meetings and with Women’s and other Diversity

Initiatives.

) T

ake diversity pledges (see above).

(see above).

) E

ncourage providers to increase diversity on their

rosters.

) A

sk providers to provide diverse lists.

(f) A

sk that providers create opportunities to meet or

otherwise become familiar with diverse neutrals on

their panels.

What Providers of Dispute Resolution Services Can Do:

) P

romote Resolution 105 and the Report to

management and case managers.

) P

romote Resolution 105 and the Report to clients and

create client communications encouraging selection

of diverse neutrals.

neutrals, including performing outreach to diversity

bar associations, etc.

) E

ncourage or require case managers to include

qualified diverse neutrals on lists.

) C

reate opportunities for users to learn about and meet

diverse neutrals through profiles, events, etc.

(f) T

rack annual progress regarding increased roste

versity and selection of those neutrals.

***

What Other Stakeholders Can Do:

) N

eutral organizations: Revise membership

requirements to permit new members who have not

previously served on panels with existing members,

and to eliminate any other requirements that result in

the exclusion of qualified diverse neutrals (emphasis

added).

) L

aw schools: Encourage diverse students to become

actively involved in dispute resolution organizations.

) I

ndustry organizations (such as construction):

Request that members increase their use of divers

utrals and take diversity pledges.

resident Margaret R. Brogan—The Academy Must Act Now. By

2020 the Academy had taken steps to act in accordance with Resolution 105.

Before that, in 2017, then-President Margaret R. Brogan made the call to

action during her Presidential Address. She spoke about the seventy-year

history of the Academy and the fact that only seven women had been

president of the Academy during that period, with a 25-year gap between two

of them. Her words were a challenge to the Academy when she said:

Id.

We were slow to change due to many forces, but

we are now faced with an enormous shift in the political

landscape which will rattle our labor laws and rock our

workplaces. This will certainly impact the relations

between the management and the unions. It will impact the

profession of labor and employment arbitration, and it will

impact our membership. We the NAA can no longer afford

to take our time and be slow to change.

I’m not talking about a change in theory but a

concrete change in how our organization does things.

Today, I challenge the Academy, the appointing agencies,

and the parties who select us to find ways to bring new

people into our profession and into our organization. We

need new arbitrators who reflect the full range of our

society and the folks who come to our arbitration table.

***

It is obvious that there would be enormous benefits

if we expanded the diversity of labor arbitrators and

Academy members, while at the same time, respecting age

and experience. Study after study have demonstrated that

these benefit an organization.

***

I believe that we are at a crisis point. It is my view

that if we don’t increase our diversity, and do it soon, there

will be a lack of trust in our organization by outside parties

resulting in a lessoning in the organization’s influence,

relevance, and reputation. Academy membership will

simply not mean the same. Parties who select us will not

attach as much significance in our being an Academy

member. They will see us as out of touch. This is not a

problem way over horizon but facing us now. We need

arbitrators in our ranks to reflect the full diversity of

society.

President Brogan’s 2017 Presidential Address and ABA Resolution

105 of 2018 are important benchmarks for the discussion of the most recent

steps that the Academy has taken to meet her “… challenge [to] the Academy

… to find ways to bring new people into our profession and into our

organization.”

Leading the way, she has chaired the Academy’s Outreach

Committee—an initiative to assist newer arbitrators to become members of

the Academy. “The initiative’s mission is geared to the identification of

promising newer arbitrators regionally, with a goal of increasing diversity

and inclusion in … [the Academy], and to assist and support them in gaining

acceptability by the parties.”

One of the specific initiatives to grow out of the Outreach

Committee is what has become known as the Salon. The Salon was proposed

Margaret R. Brogan, “Presidential Address,” supra note 19.

Id.

NAA Outreach Committee—Description (on file with authors).

to the Outreach Committee by member Homer C. La Rue and supported by

Past President Margaret Brogan and Executive Secretary Treasurer Walt

De Treux. The proposal described the idea for the Salon as follows:

One of the definitions of a “Salon”, provided by

Webster’s Dictionary is “… a fashionable assemblage of

notables (such as literary figures, artists, or statesmen) held

by custom at the home of a prominent person.” The term is

an apt one for the undertaking by Arbitrator Eva Robins

and Arbitrator Peter Sykes in the late 1970s and early

1980s…. Together, they invited a small number of new

arbitrators into their homes. The purpose of those

gatherings was to permit these new arbitrators (i.e., those

who had a promising arbitration practice but who had not

yet reached the level of qualifying for membership in the

NAA), to muse about their growing practices. Those

reflections were with two of the most prominent arbitrators

in the field at the time.

The discussions took place in confidence; and

therefore, created a “safe space” for a new arbitrator to ask

the otherwise hard-to-ask question. One of the purposes of

this proposal for a “[D.C./] Mid-Atlantic Regional Salon”

would be to carry forward this tradition, permitting a small

cohort of newer arbitrators (not novices) to share their

experiences questions and concerns with more seasoned

arbitrators, as well as, with their peers.

One of the specific goals of the Salon, now in its second iteration

(2020) in the D.C./Mid-Atlantic Regions, is to identify and to assist persons

of color and women who have a labor and employment practice and who

aspire to become members of the Academy. The appeal of the Salon has

grown. There are now four additional regions of the Academy that have

begun a version of the Salon. Those regions are: (1) Southern California, (2)

Pacific Northwest, (3) Southwest Rockies, and (4) Northern California.

ABA Resolution 105 is significant to our discussion of the Academy

because it promotes what President Brogan called for in her address. It

“challenge[s] the [ADR community including the] Academy, the appointing

agencies, and the parties who select … [arbitrators] to find ways to bring new

people into … [the] profession….”

The proposal for the Salon to the Outreach Committee was made as a joint venture between

the D.C. Region and the Mid-Atlantic Region of the Academy. See Margaret R. Brogan, Homer

C. La Rue & Walt De Treux, Response to NAA Outreach Initiative 1, 4 (Feb. 28, 2018).

Margaret R. Brogan, “Presidential Address,” supra note 19.

The Ray Corollary Initiative, ™ the Academy’s Leadership Toward a New

Paradigm

ABA Resolution 113

and ABA Resolution 105 are well-

intentioned but fall short of what the authors of this chapter believe is

necessary at this point in history. We have published an article on the Ray

Corollary Initiative™ (RCI), indicating how to achieve diversity in arbitrator

selection.

The social science data suggest that the needle does not move

unless there is accountability and identifiably achievable goals. The authors

therefore suggest that the next iteration of Resolution 105 include additional

“Resolved” statements. The article also explains why a metric is necessary if

ABA Resolution 105 is going to be anything more than a hortatory

proclamation. The article sets forth an action plan for a Ray Corollary

Initiative. ™

Following a full and robust discussion, the Board of Governors of

the Academy unanimously voted to take a leadership role to jump-start the

implementation of the Ray Corollary

Initiative. ™ The role of the Academy

is to convene and organize an Organizing Committee, composed solely of

NAA members. The Organizing Committee, appointed by the President of

the NAA, will coordinate the activities necessary for bringing into being a

national task force to oversee the implementation of the RCI. ™ The period

of operation of the Committee would be for the duration of the time necessary

to organize the task force and to get it up and functioning.

The specifics of the Board’s charge to the Organizing Committee is

set forth in the Board’s resolution. In pertinent part, it reads:

• The Ray Corollary Initiative™ (RCI) is national

effort by the ADR community to address the issue of

diversity and inclusion in the selection of arbitrators and

mediators in labor-management, employment and

commercial disputes.

• The RCI establishes that there shall be a minimum

percent of diverse neutrals considered in the selection

In 2016 the American Bar Association’s House of Delegates, the governing body of the

American Bar Association (ABA), approved Resolution 113. It reads:

RESOLVED, That the American Bar Association urges all providers of

legal services, including law firms and corporations, to expand and create

opportunities at all levels of responsibility for diverse attorneys; and

FURTHER RESOLVED, That the American Bar Associate urges clients

to assist in the facilitation of opportunities for diverse attorneys, and to

direct a greater percentage of the legal services they purchase, both

currently and in the future, to diverse attorneys; and

FURTHER RESOLVED, That for purposes of this resolution, “diverse attorneys”

means attorneys who are included within the ambit of Goal III of the American Bar

Association.

American Bar Association, Adopted by the House of Delegates 113, (Aug. 8-9, 2016),

https://law.duke.edu/sites/default/files/centers/judicialstudies/panel_4-

american_bar_association_resolution.pdf.

Homer C. La Rue & Alan A. Symonette, “The Ray Corollary Initiative: How to Achieve

Diversity and Inclusion in Arbitrator Selection,” 63 Howard L.J. 215 (2020).

process (i.e., strike-and-rank lists and party-prepared

rosters) for arbitrators and mediators. The RCI does not

seek to change the criteria for the selection of arbitrators

and mediators by the parties.

• The National Academy of Arbitrators (“NAA”) is

the preeminent membership organization of professional

arbitrators in labor-management and employment disputes,

composed of arbitrators and mediators in the United States

and Canada.

• The NAA wishes to continue its ongoing

commitment to diversity and inclusion in the selection of

diverse arbitrators and mediators by the establishment of

an Organizing Committee to promote the Ray Corollary

Initiative. ™

• The NAA hereby forms an Organizing Committee

to convene a national collaboration of stakeholders in

labor-management, employment and commercial disputes

to address the national problem of arbitrator and mediator

selection, that is, significantly increase diversity an

nclusion in the selection of ADR neutrals.

• The Organizing Committee is composed of NAA

members who will organize and convene a gathering of

ADR stakeholders that shall include:

o Sections of the American Bar

Association

o Private and public arbitrator rosteri

encies and associations

o Lawyers and law firms who select

arbitrators and mediators

o Private and public entities that hire

lawyers and law firms who select arbitrators and

mediators for disputes

• The identified stakeholders shall form a national

ask force to be known as the Ray Corollary Initiative™

National Task Force (“RCINT”) for the purpose of

bringing about diversity in the selection of ADR neutrals.

• The RCINT will develop a corollary of the

Mansfield Rule and the Rooney Rule that has been used in

“biglaw” and in the National Football League,

respectively, to increase diversity in law firms and in the

number of Black coaches and upper-level managers among

professional football teams.

• The RCINT also would engage in research to

support the implementation of the RCI and would

determine, among other things, the degree of

underrepresentation of diverse neutrals and ADR

community attitudes impacting arbitrator selection.

• The role of the NAA Organizing Committee

would be to convene the members of the RCINT and to

facilitate the organization of the RCINT.

• The Organizing Committee will entertain the

application for participation on the RCINT based on at

least three (3) principles which are not intended to be

exhaustive:

o Commitment

o Accountability

o Transparency

Commitment - This would be demonstrated by applicants

for the RCINT committing themselves to the

implementation of a plan that would eventually result in

strike/rank lists and final -selection lists for private

arbitration/mediation rosters that adhere to a 30 percent

metric for the inclusion of persons of color and women.

Accountability - This would be demonstrated by applicants

for the RCINT committing themselves to a plan that will

include the collection and reporting data as to compliance

with the 30% consideration metric.

Transparency - This would be demonstrated by applicants

for the RCINT committing themselves to the sharing of

their experiences, in the form of data, that demonstrates the

implementation of all aspects of the RCI with others

involved in the Initiative.

Conclusion

In the past 75 years, developing a diverse membership has been a

vexing issue in the Academy. According to Past President James Harkless:

“We’ve made slow and steady progress. However, there needs to be more

emphasis now in dealing with this question.”

Today, the Academy is taking

a major step forward to address diversity in the membership of the Academy.

The Academy, in doing so, also is stepping into the leadership of creating a

new paradigm to make diversity in labor-management and employment

arbitration a reality and not merely a long-term hope.

NAA BOG Resolution, Ray Corollary Initiative™: Charge for the NAA Organizing

Committee (Dec. 9, 2019).

Anna DuVal Smith, Interview of James M. Harkless, Oct. 13, 2006,

https://naarb.org/documents/JamesM.HarklessinterviewedbyAnnaDuValSmith.PDF, at 26.

James Harkless

Judge Harry Edwards

Margaret Brogan

and Homer La Rue

hapter 4

WOMEN AND THE ACADEMY

Kathryn A. VanDagens

First Woman Member of the NAA

In the beginning of the Academy, there was only one. In 1947 any

arbitrator invited to attend the first organizational meeting or the First Annual

Meeting in 1948 was offered charter membership status in the National

Academy of Arbitrators. According to the NAA Bulletin No. 1, 105

arbitrators accepted the offered membership. The initial membership list for

1947 includes 72 names. There is only one woman included in either list:

Jean McKelvey of Cornell University from Ithaca, New York.

McKelvey initially attended Wellesley College intent on studying

chemistry, but her father, a chemical engineer, dissuaded her from a field he

believed unsuitable for women. Instead, she majored in economics, sparking

her interest in the labor movement. While an undergraduate, she attended

union meetings in Boston, which introduced her to union workers. McKelvey

received her master’s and doctorate in economics from Radcliffe College

(now Harvard). Her thesis, finished in 1933, was titled, “Union Management

Cooperation.”

McKelvey began teaching at Sarah Lawrence, where she said she

taught “very wealthy little girls about economics and labor.... Most of my

wealthy students at the beginning, the Melons and the Fords and some of the

others, became Communists in the thirties. Mostly I think to spite their

families.”

In order to introduce her students to the “real world,” McKelvey

organized field trips, such as to a textile factory strike. One of those field trips

led to her next faculty appointment.

McKelvey was hired as the first faculty member in the Industrial and

Labor Relations School at Cornell University. McKelvey lived with her

husband in Bronxville, New York and intended to commute to Ithaca, but in

1943 the War made commuting impossible. McKelvey took a job in an

organized factory for Delco of General Motors, hoping to get factory and

union experience. She became the secretary of the shop steward’s council and

was shocked by the men’s indifference toward women’s interests, such as a

separate changing room for the women factory workers. She said that when

she tried to raise these issues, the men made it clear that she was the secretary

and was to simply “keep the minutes.”

McKelvey did keep the minutes and

later used them as source material for her academic writing.

Later, when McKelvey applied for membership to the War Labor

Board, her experience as a union officer was viewed by some as an

impediment to her serving as a neutral. But others were impressed that she

Interview by Marian Warns with Jean T. McKelvey, NAA Past President, in Chicago (May 31,

1989) [hereinafter Warns-McKelvey Interview].

Id.

had real-world experience and in 1944, McKelvey was appointed to serve as

a public panel member. She handled approximately 50 cases before the war

ended in 1945 and the Board was dissolved. She described the only case she

had been overruled on:

The union and the company had agreed to a

woman’s wage scale and a man’s wage scale. Our

philosophy was that if the parties agreed to something,

there’s no dispute. So I sent this in to New York and got a

nasty letter back from Walter Gelheim saying the War

Labor Board does not approve of sex discrimination. When

I got that letter, that was in July, the war ended in August,

and I’d set up another meeting at this plant in LeRoy, New

York, saying that the Board would not approve the wage

scales in the contract; this was really interest arbitration,

although we didn’t call it that then. So, I called another

meeting and then to my surprise, and I still have the letter,

I got a letter from the head of the company saying “Jean

McKelvey, your royal highness,…[N]ow that the war is

over, would you please keep your dirty hands off our

business.”

After the War Labor Board ended, McKelvey began teaching labor

law at the ILR School at Cornell. She was added to the Federal Mediation

and Conciliation Service roster of arbitrators. When she arrived at her first

hearing in Auburn, the parties assumed she was the secretary. When

McKelvey introduced herself, the parties told her that “Jean” was a man’s

name and no one told them “they were getting a woman.” McKelvey

reflected, “I always thought I had an advantage in arbitration with a name that

could be a man’s name.”

She went on to suggest that her gender-neutral name had contributed

to her being selected to arbitrate more cases than her other female peers. She

recalled that the parties were often surprised when she walked into the

arbitration room and it was clear that they had been expecting her to be a

man.

Interestingly, her interviewer, Marian Warns, concurred that she felt

she had had a similar experience, as “Marian” could be either a woman’s or

a man’s name.

Ironically, this gender confusion over McKelvey’s name was

not limited to her early career: when she concluded her term as the NAA

President in 1971, she was presented a gavel inscribed with her name, and

signed, “Given with the affection and esteem of his colleagues.”

McKelvey said that Aaron Horvitz wrote to her to tell her that she

had been selected as a charter member of the National Academy of

Arbitrators. Of that honor she said, “It was a surprise to me. I really didn’t

do much in those early years. I didn’t have any money, for one thing, to go

Id.

Joseph D. Garrison, “Perceived Differences in Male and Female Mediators and Arbitrators,”

Disp. Resol. Mag., Spring 2012, at 29, 30-31.

Warns-McKelvey Interview, supra note 1.

Telephone Interview of Marcia Greenbaum, NAA member (Dec. 10, 2019) [hereinafter

Greenbaum Interview].

to the meetings.”

McKelvey attended her first NAA meeting during Saul

Wallen’s presidential term in 1954 and joined the Executive Board. Wallen

wanted to create a record of the Academy’s past seven meetings and it fell to

McKelvey, Chair of the Research Committee, to edit them. This first volume

of The Proceedings, edited by McKelvey, contained presentations made at

the NAA’s earliest meetings. The volume published a Survey of the

Arbitration Profession in 1952,

which collected demographics on age,

education, caseload, and income, but perhaps unsurprisingly, does not

mention gender. McKelvey remained editor of The Proceedings until 1961

when she was appointed as the first Coordinator of Regional Activities.

Additional Women Join

In 1951 a second woman, Lois MacDonald of New York and a

Professor of Economics at New York University, joined the Academy.

MacDonald served as an economist with the Wage Stabilization Division of

the War Labor Board from 1942 to 1944 and was a public member from 1944

to 1945.

Nine years later, two additional women from the New York State

Board of Mediation joined the membership: Mabel Leslie, a nationally

recognized mediator,

and Eva Robins. Robins obtained her law degree

about the time that the labor relations field emerged. She initially worked

inside the industry but eventually took a civil service examination to leave

the private sector and begin work as a mediator. She said that although she

took a significant pay cut, getting into mediation “was the best move I ever

made.”

While working at the New York State Mediation Board, she

primarily mediated cases, but there were unions that came to the board to

have cases arbitrated for free. Robins began to be selected to hear arbitration

cases outside of New York in surrounding states. Robins did not have an

arbitrator mentor, recalling, “If there were mentors around that time, I didn’t

know who they were.” She was not on any agency rosters other than the

Mediation Board. Robins did not recall having difficulty being selected as an

arbitrator after other women had paved the way. In 1989 she reflected:

I think that it was easier [for] me, for Mabel Leslie

who was a member of the Board of the New York State

Board of Mediation and was a fine arbitrator, and for Jean

McKelvey and for a few others. It was easier for us than it

is for today’s females. There are more today. They are

more anxious to succeed right away. We knew we had to

wait. We knew it would be slow, but we knew we would

get there if we worked hard and did the job well. I don’t

remember ever having had any problem once I left

industry; any problem about being a female or any other

Warns-McKelvey Interview, supra note 1.

“Survey of the Arbitration Profession in 1952,” Appendix E, in The Profession of Labor

Arbitration: Cumulative Selection of Addresses at First Seven Annual Meetings, National

Academy of Arbitrators, 1948 through 1954 at 176-82 (Jean T. McKelvey ed. 1954).

“Remembrance of Lois J. MacDonald,” The Chronicle, Feb. 1988.

Arthur Stark, “An Administrative Appraisal of the New York State Board of Mediation,” 5

Indus.& Lab. Rel. Rev. 383, 390n12 (1952); JSTOR, www.jstor.org/stable/2518766.

Interview by Marian Warns with Eva Robins, NAA President, in Chicago, Illinois (May 31,

1989) [hereinafter Warns-Robins Interview].

minority aspect to myself. Everybody complains today. I

don’t recall being aware of a problem.

In 1960 the NAA had 260 members; four, or 1.5 percent, were

women.

McKelvey later stated that she felt that the NAA had different

admissions standards for women and men, citing the membership’s initial

reluctance to admit Robins due to her experience at a public agency, even

though men from the same agency had been admitted.

Over the years, McKelvey invited a number of prominent arbitrators

to speak to her classes at Cornell. Saul Wallen spoke to the class about an

arbitration decision that had been reversed and later reinstated in the First

Circuit. After the class, he told McKelvey that he wanted to hire a student as

an assistant. Later she recalled that it hadn’t occurred to her that he would be

interested in hiring a woman as an assistant, because it was so difficult for

women to get established. McKelvey suggested hiring an editor of the Law

Review and Wallen disagreed, saying that he wanted to hire the student that

had appeared to him to be the brightest in the class, referring to her as “that

bright little girl.” Once McKelvey confirmed that he was referring to Marcia

Greenbaum, she hesitated because Greenbaum had not yet finished her

master’s degree. Wallen replied that it was up to Greenbaum to decide.

Greenbaum surmised that she must have asked a lot of questions the

day that Wallen spoke to McKelvey’s class. She confirmed that she moved

to Boston in the fall of 1963 after Wallen hired her to follow Arnold Zack as

his intern, and never did finish getting her degree. She drafted opinions for

Wallen and traveled with him when he heard cases. Wallen suggested to

several parties that they try Greenbaum as their arbitrator. One countered,

“Sorry, I would never buy a pig in a poke.” Greenbaum said that she had to

look up what a “poke” was, because she had never heard the expression. She

heard her first case in 1967, when Wallen had a conflict and again offered to

send his intern to hear the case. The parties accepted his offer and Greenbaum

wrote her first award.

The Rise of Public Sector Bargaining

In the 1960s and 1970s, collective bargaining took hold in the public

sector in many states, giving police officers, fire fighters, teachers, and other

public employees the right to organize and negotiate. Eventually, their

grievances went to arbitration and many women found that public sector

unions and agencies were more willing to try out lesser known arbitrators.

Greenbaum recalled that she provided training to many of these public sector

employees who had recently gotten the right to collectively bargain. Many

of the occupations in the public sector, such as teachers, nurses, and social

workers, were dominated by women. With the rise of the women’s movement

in the 1960s, they often wanted a female arbitrator. Because of the training

she had done of teachers, school committee members, and superintendents,

Id.

Gladys W. Gruenberg, Joyce M. Najita & Dennis R. Nolan, National Academy of Arbitrators:

Fifty Years in the World of Work 153 (1998), citing membership directories and NAA archives.

Warns-McKelvey Interview, supra note 1.

Id.

Greenbaum Interview, supra note 8.

Greenbaum was familiar to many in the public sector, and she began hearing

even more arbitration cases.

First Woman President of the NAA

In 1970 the NAA elected Jean McKelvey as its first female

President, 23 years after she was asked to join the Academy as a charter

member. Never one to shy away from her unique position, McKelvey’s

Presidential address was titled, “Sex and the Single Arbitrator.”

She

initially noted the tension between arbitrators who believed their role was to

adjudicate the collective bargaining agreement alone (the “Meltzer view”)

and those who thought they had a statutory responsibility as well (the

“Howlett camp”). She then analyzed arbitration awards in which her

colleagues had been asked to decide issues involving charges of sex

discrimination, especially contractual provisions that were alleged to

contradict state or federal law addressing employment of women. What

followed was a thorough examination of awards interpreting contractual

provisions that upheld or ran afoul of state protective labor provisions, such

as those that limited working hours or lifting heavy objects, or federal

legislation prohibiting discrimination based on sex. McKelvey wrote:

“Most of the published decisions of this period

indicate that arbitrators would not uphold a woman’s right

to a job if the consequence would entail a violation of state

protective legislation by the employer. In fact, the dean of

the arbitration profession, the late Harry Shulman, ruled

that the existence of legal limitations on the work which

women could do created a legal class disability which was

not discriminatory because it was dependent “entirely on

objective, indisputable tests of sex and weight, and is not

subject to personal idiosyncrasy, differences of opinion as

to physical capacity, or malingering for the purpose of

securing a better job.”

McKelvey later lamented that although her Presidential Address

presented a very well-researched paper, it was her speech as the President-

Elect that everyone remembered. Rather than introducing the NAA members

at the head table and their “lovely and charming” wives, McKelvey

introduced each of the wives by her own considerable accomplishments,

adding that she was accompanied by her “handsome and charming” husband.

Throughout her Academy tenure, McKelvey was focused on the

education and training of new arbitrators. As President, McKelvey created

the Special Committee for Development of New Arbitrators, hoping to

increase the number of qualified female and minority arbitrators. Regional

training efforts emphasized affirmative action in recruitment of participants

in training programs. Eventually, the training and recruitment of new

arbitrators fell primarily to universities and agencies.

Jean T. McKelvey, “Sex and the Single Arbitrator,” in Arbitration and the Public Interest,

Proceedings of the 24th Annual Meeting, National Academy of Arbitrators 1 (Charles M.

Rehmus ed. 1971).

Id. at 11, quoting from Bethlehem Steel Co., 7 LA 163 (1947).

The fifth woman to join the NAA was Frances Bairstow. Bairstow

was raised and educated in Wisconsin but her first job was as Industrial

Secretary for the Chicago YWCA. In 1943 Bairstow joined the Chicago War

Labor Board as a wage analyst and then was moved to the disputes section,

handling strikes and other industrial turmoil. After moving to Kentucky for

her husband’s career, Bairstow started a worker’s education center and began

teaching classes to train shop stewards for bargaining. She said, “The idea of

a woman in this job was not too popular at that time. But there wasn’t

anybody else with qualifications who would work for so little money.”

After Bairstow’s first marriage ended, she and her son moved to

Washington, D.C., where she was offered a job with the Senate Labor

Committee, which required Senate approval. Bairstow quipped that during

the committee interviews, she was “amazed that busy senators took time” to

concern themselves with what arrangements she had made for childcare for

her son.

Later, Bairstow was awarded a Fulbright fellowship in Industrial

Relations at Oxford. While waiting for the fellowship to begin, she applied

for a job at Lockheed in Los Angeles. The employment manager knew her

background and offered her a job in labor relations, but she turned him down,

preferring to work on the factory floor. Bairstow spent several months

making nose cones and plastic parts for airplanes, all the while studying the

relationship between shop stewards and their members.

While at Oxford, Bairstow met a Canadian film maker who would

become her husband. After interning in California with several NAA

arbitrators, Bairstow had to tell them that she was leaving to join her husband

in Ottawa. She said that one suggested that her decision confirmed why

people were reluctant to give jobs to women: because they leave.

In 1959

Bairstow began her academic career at McGill University in Montreal,

Quebec. She heard her first arbitration case in 1962 when the Dean of Arts at

McGill recommended her to parties when he became so busy that he had to

turn away cases. Of that first case she recalled, “My theory was that they were

happy to take a chance on a woman they didn’t know, because they knew

they were going to lose anyway.”

In 1972, she became the fifth woman

admitted to the Academy.

Meanwhile McKelvey, not one to back away from a challenge,

endeavored to increase the number of women in the NAA. She extended

invitations to NAA meetings to advocates and former students who she knew

wanted to be arbitrators, including Greenbaum. McKelvey’s former student

said that soon after she heard her first arbitration case, Wallen announced that

he was giving up his arbitration practice, so she went out on her own. In 1968

the American Arbitration Association agreed to put her on its roster of

arbitrators. Around this same time, she began sharing office space with Zack.

Much later, the same union that had rejected Greenbaum as a “pig in a poke”

did choose her as an arbitrator, and she arbitrated there for many years. She

said that in some instances, she began hearing cases in a more female-

Interview by Joyce M. Najita with Frances Bairstow, NAA Vice President, in Minneapolis

(May 6, 1994).

Id.

dominated area, such as flight attendants, and then transitioned to arbitrating

for the more male-dominated occupations in the same industry, like airline

pilots. Eventually she was selected for cases with the Steelworkers and the

“door flew open.” She theorized that simply “showing up and persistence”

account for a large part of her success as a female arbitrator.

In 1973 McKelvey’s efforts to increase female membership were

rewarded when her friend, Alice Grant, and her student, Marcia Greenbaum,

were admitted to the NAA, bringing the total number of women members to

seven, or 1.1 pecent. Grant was a graduate of Cornell University and was the

director of the Rochester district office of the New York State School of

Industrial and Labor Relations at Cornell University. Her work “included

training a large number of women and minorities as arbitrators.”

At a

memorial service for Grant, Robins remarked:

Alice became a member of the academy in 1973

and immediately began the service to the academy and to

arbitrators that would mark the balance of her life. Without

fanfare— without seeking credit or personal benefit—she

helped develop programs that were aimed at perfecting

both the members’ skills and their competence as

arbitrators. She helped structure academy and other

training programs for interns and mentors.…There are

literally hundreds of arbitrators and advocates who owe

their knowledge of their craft to programs Alice developed

or set in motion or participated in in some meaningful way.

There probably was no meeting of the academy since 1973

that does not bear some mark of Alice’s contribution. The

academy benefitted from the example she set in her interest

in continuing education. The quiet guidance she gave to

members and nonmembers of the academy in the training

of interns was itself a tremendous effort, and one for which

she sought no credit.

In 1974 a Reexamination Committee headed by Rolf Valtin issued

a report on membership standards, in which the Academy’s under-

representation of minorities and women was addressed head on:

Out of a total of about 450 persons, the Academy

has seven blacks and five women. These are plainly

distressing statistics. But the Academy cannot itself rectify

them without abandoning general acceptability by the

parties as the central measure of qualification for

membership. Nevertheless, the reiteration of the

Academy’s long and firm policy against discrimination on

the basis of race or sex should be part of this report. And

we additionally make these observations: that it is silly to

deny that blacks and women have often been denied a fair

opportunity to demonstrate their capabilities, and thus

Greenbaum Interview, supra note 8.

Alice Grant Obituary, The Chronicle, March 1989, at. 8.

Alice Bacon Grant: A Celebration of Her Life, Dec. 10, 1988.

establish the degree of acceptability needed for Academy

membership; that it is incumbent on the Academy to

cooperate in every appropriate way with programs

designed to encourage the continued development of

competent, qualified arbitrators among women and

minority groups; and that we would be less than proud of

an Academy which failed to be sensitive to the barriers

facing these potential members.

Some members believed membership standards should be modified

for women and minorities as it would be the only way to increase their

membership in the NAA, since the labor-management community was rarely

selecting them as arbitrators. However, an equally strong opposition arose,

particularly among those women and minorities who were already members.

They felt that lowering the standards would tarnish their own reputations or

demean those who sought admission in the future. The suggested change was

soundly rejected, and the proposal was eventually abandoned. NAA President

Margery Gootnick described the dispute this way:

There was a time just before I got into the

Academy, where the committee considered if it should

accept women and other minorities, African-Americans,

Asians, on lower standards. This proposal was objected to

by the women and the minorities in the Academy and was

defeated. If the proposal had passed, we always would have

been looked upon as second-class members.

The next woman to join the NAA was Marian Kincaid Warns of

Louisville, Kentucky. She held graduate degrees in Industrial Psychology

from the University of Louisville and was admitted to the NAA after careers

in labor and personnel, and as an instructor in psychology at the University

of Louisville. Warns and her husband, NAA member Carl Warns, Jr., had a

joint arbitration practice.

After Warns was admitted in 1975, eight of the

Academy’s 446 members were female, still less than 2 percent. When

interviewing McKelvey for the History Committee, Warns remarked: “I

know there were very, very few, even at the time that I got in, because I was

only ... I was the [eighth] woman, and that astounded me. The fact that at that

time, there were only seven women in the Academy. It was extraordinary.”

The Academy continued to admit qualified women arbitrators. In

1977 Clara Friedman from New York City was admitted, followed closely in

1978 by Margery Gootnick of Rochester, New York; Emily Maloney of Santa

Cruz, California; and Helen Witt of Pittsburgh, Pennsylvania.

Although Margery Gootnick went to Radcliffe College (Harvard

University) and Cornell Law School, her early legal career was spent

“Report of the Special Committee to Review Membership and Related Policy Questions of the

Academy,” in Arbitration – 1976: Proceedings of the 29th Annual Meeting, National Academy

of Arbitrators 361, 370-71, Appendix F (Barbara D. Dennis & Gerald G. Somers eds. 1976).

Interview by Donald McPherson of Margery F. Gootnick, Past NAA President, in Chautauqua,

New York (Aug. 1, 2010) [hereinafter McPherson-Gootnick Interview].

“Remembering Marian Kincaid Warns,” The Chronicle, Fall 2003.

Warns-McKelvey Interview, supra note 1.

searching titles and repossessing refrigerators. She made $35 a week although

the man hired at the same time as she was paid $50 a week and was given an

office. After her second child was born, she was let go as the law firm felt

she had chosen her role as a mother over her career. Gootnick said she then

took a fourteen-year maternity leave, which ended when McKelvey invited

her to attend an arbitrator development course in Rochester. Although

Gootnick had never taken a course in labor law, she enrolled. McKelvey

introduced the students to “many of the stars of the Academy,” and Gootnick

“fell in love with arbitration.”

In the early days of her career, Gootnick accompanied McKelvey

and Grant to some of their arbitrations. She took a position as a hearing

officer for the New York State Division of Human Rights, where she “learned

to run a hearing from a court reporter.”

Gootnick recalled that she was an earnest researcher. Her first case

was a “sleeping” case and before she wrote her award, she read every

published sleeping case she could find. Two of Gootnick’s early cases turned

out to have some prominence. She described one in great detail:

One was an interest arbitration under the New

York State Police and Fire statute. What I didn’t know: It

was mid-November. I did not know and no one told me

that there had been an election. The person who was

representing the Village on the tripartite Arbitration board

was returning very shortly to the bargaining unit.

The Village representative wanted to award a

remarkable raise to the union, about 9% more than

comparable units. The union representative on the

tripartite board sat very quietly and never opened his

mouth. I tried to explain to the Village representative that

he was not a neutral, that I was the neutral and he was an

advocate for the village. I told him people would think he

was dishonest.

Eventually as the neutral, I decided that I had to

write a dissent! I was told by PERB that it would try to

protect me, but didn’t know if it could. What kind of an

interest arbitrator writes a dissent when the management

and the union are in agreement? After I wrote the dissent,

I took to my bed. I was certain that was the end of my new

career. The Village appealed it to the New York State

Supreme Court. I do not believe the Court had proper

jurisdiction. However, the judge thought that he did have

jurisdiction. During the testimony it came out that the

Village representative was going back to the bargaining

unit. So suddenly, from the biggest idiot in the world, I

became Ms. Ethics and Honesty.

McPherson-Gootnick Interview, supra note 29.

Id.

Gootnick recalled that after this case and another one where she was

branded “No Gootnick” all over New York, her arbitration case load

increased substantially after previously languishing without much success.

After attending her first NAA meeting as McKelvey’s guest,

Gootnick was so enamored, she sought to join the organization immediately.

Membership Chair Jack Dunsford gently shared the membership

qualifications with her, whereupon she realized she had not yet met any of

them. Gootnick was turned down after her first application but was admitted

on her second try. She almost immediately set a goal for herself to serve as

a president for the organization she referred to as “one of the major joys” in

her life.

Gootnick said that when she was admitted to the Academy, there

was no orientation for new members, making her realize how important it is

to have a formal welcoming. Accordingly, when she was later appointed

Chair of the New Member Orientation Committee, she took the role “more

seriously” than any job she’d had in the Academy.

Gootnick’s love for the

Academy and its members, particularly the newer members, was legendary.

She was frequently referred to as the “mother” or the “heart” of the NAA and

many members recalled afterward that she was the first to introduce herself

when they attended their first NAA meeting.

Helen Witt’s road to labor arbitration began in 1971 when she was

invited to participate in a new dispute resolution project between the United

Steelworkers of America and the eleven steel companies who bargained

together as the Coordinating Committee. Of the 100 participants who were

considered for the panel, Witt was the only woman. She and ten men were

selected for the first Expedited Arbitration Panel, to train in arbitration to be

ready to fill in as seasoned arbitrators left the panel. A year later, she was

asked to join the United States Steel/United Steelworkers Board of

Arbitration, then chaired by Sylvester Garrett. She gave up her private law

practice and entered the life of an arbitrator on a full-time basis.

Gootnick and Witt met when they joined the Academy together and

became close friends, accepting their thirty-year pins together. Gootnick

recalled that there were not many women in the Academy when she joined.

She felt that this was not because the NAA discriminated against women

when they applied, but because there weren’t many women arbitrators.

In 1979 the NAA had 500 members, 2.4 percent (or twelve) of

whom were women. The next year, 1980, Ruth Kahn of Detroit, Michigan

was the thirteenth woman admitted to the Academy. In that same year, Eva

Robins was elected as the NAA’s second female President. Robins’s goal

was to set up a good continuing education system for the NAA. She felt that

at that time, there was unwarranted concern about the standards for

membership and it was suggested that the admission standards be made more

stringent. She said, “I thought that was pulling up the ladder. I wasn’t about

to participate in it.”

Robins said that the best thing she was involved in as

President was setting up training so that those interested in arbitration could

become comfortable with it. In her presidential address, Robins praised the

Id.

“Spotlight on Helen M. Witt, A Woman of Steel with a Heart of Gold,” The Chronicle, Winter

2020, at 30-31.

Warns-Robins Interview, supra note 13.

help she had received at the start and announced that Peter Seitz and she had

developed a salon to help new arbitrators, hosted in her home:

We wish to repay that great gift we received by

sharing our knowledge and our intuitions with others—

with the new hopefuls coming along. Peter and I will give

to perhaps six persons at a time the opportunity to discuss

arbitration with us, to read and talk about some of the

treasured writings on the subject. The persons who will be

admitted to our discussion series will have to have tried to

prepare themselves for arbitration by obtaining some

practical exposure to collective bargaining and the

administration of the labor contract which we think is so

important to an understanding of the philosophy of

arbitration.

The Modern Era

In 1981 the NAA welcomed five female members; five more were

admitted between 1982 and 1983. The NAA welcomed more new members

in 1987 and 1988 than in any other years; of the 74 members admitted in

those two years, 15 were women. By 1989 an additional five women had

joined the NAA’s ranks. Among these classes were three women who would

go on to serve as one of the NAA’s presidents: Barbara Zausner, admitted in

1983, was elected to the Academy’s highest position in 2007; Roberta Golick

joined in 1984 and served as President in 2011-12; and Sara Adler joined in

1987 and followed Golick as President in 2012-13.

In 1985 the NAA Research Committee undertook a comprehensive

study of the demographic characteristics of NAA and non-NAA arbitrators

in North America, expanding the scope of previous surveys which had only

polled NAA members. First, the study reported that the average age of NAA

respondents was higher than in previous studies, suggesting that the mean age

of Academy members had increased between 1969 and 1989. They also

concluded that “[f]emale arbitrators constitute a larger share of the non-NAA

group.”

The authors of the study made the following observations about

gender:

Note that 9.4 percent and 4.1 percent are the

proportions of female non-NAA and NAA members,

respectively. We examined whether the age differences

between male and female arbitrators could account for the

Academy versus non-Academy gender distributions. The

Academy screens applicants on experience. Assuming that

age and experience are positively correlated, it was

hypothesized that the proportion of member and

Eva Robins, “The Presidential Address: Threats to Arbitration,” in Arbitration Issues for the

1980s, Proceedings of the 34th Annual Meeting, National Academy of Arbitrators 1, 16 (James

. S

tern & Barbara D. Dennis eds. 1982).

Mario F. Bognanno & Clifford E. Smith, “The Demographic and Professional Characteristics

of Arbitrators in North America,” in Arbitration 1988: Emerging Issues for the 1990s,

Proceedings of the 41st Annual Meeting, National Academy of Arbitrators 266, 289 (Gladys W.

Gruenberg ed. 1989).

nonmember female arbitrators would be equal within the

age categories of 50 and under, and over 50. This

hypothesis was rejected.

Explaining the gender-based differences in

membership is not a trivial exercise. A complete study

would require access to data on applicants to NAA

membership, including information on the screening

decisions reached. This issue is further complicated by the

small sample size. Within the 1986 population, if only 30

to 35 female nonmembers had become NAA members, the

proportion of female NAA and non-NAA arbitrators would

have been approximately equal. Conclusions regarding

gender-based discrimination cannot be reached without

further research.

The authors concluded that one area of fruitful future research would be to,

“Examine why women and minorities constitute such a small fraction of all

labor arbitrators and why the Academy’s membership has proportionally

fewer women than the set of nonmember arbitrators.”

The Academy membership continued to admit new members, but

the percentage of women members remained low. Between 1990 and 1999,

157 new members were admitted to the NAA, 33 of whom were women. In

2000, Cornell/PERC Institute on Conflict Resolution conducted a survey of

the NAA membership. With respect to gender and race, the authors wrote:

Only 12 percent of Academy members are women

and less than 6 percent are nonwhite. A significantly

greater proportion of women members are full-time

neutrals (66.1 percent) than men (47.4 percent). On the

other hand, a higher proportion of whites are full-time

neutrals than nonwhites. On average, the female members

of the Academy are younger (mean age of 56) than the

males (mean age of 64)….Relatively more men than

women have law degrees and Ph.D.s.

The authors of the study found “no significant differences in either

mediation or arbitration caseloads between men and women.” But they found

that “women are nearly twice as likely as men to have done pro bono work”

and that a significantly higher proportion of this work was done by younger

members and women.

The study also compared differences in rates charged for mediation

and arbitration by gender, writing:

Many results of the analysis of gender differences

within the Academy have been a surprise, and the analysis

Id.

Michel Picher, Ronald L. Seeber & David B. Lipsky, “The Arbitration Profession in

Transition: A Survey of the National Academy of Arbitrators.” in Arbitration 2000: Workplace

Justice and Efficiency in the Twenty-first Century, Proceedings of the 53d Annual Meeting,

National Academy of Arbitrators 267, 277-78 (Steven Briggs & Jay E. Grenig eds. 2001).

Id. at 296.

of fees fits that pattern. Women charge significantly more

for their mediation services than do men—about 25 percent

more at the lowest rate and nearly 30 percent at the highest

rate. We suspect that this is largely due to the high demand

for female neutrals within the newer areas of practice,

particularly the mediation of employment discrimination

charges. This finding, however, is quite unusual in the

wider context of the U.S. economy, where women are

typically paid less than men in nearly every occupation.

Arbitration rates reveal that male Academy members

charge more at the lowest level, and roughly the same at

the highest levels.

The authors concluded,

The demographic picture the survey draws will no

doubt give some analysts cause for concern. Apart from the

average age of Academy members being at a relatively

high 63, the data reveal that women and minorities appear

to be substantially underrepresented in Academy

membership whether by comparison with the population

generally or with other professions. These findings should

be of interest to agencies involved in the recruitment and

development of professional neutrals, and to Academy

members involved in mentoring.

Margery Gootnick realized her goal of serving as the NAA’s

President in 2005-06, when she became the third woman elected to the post.

Gootnick believed that the most important challenges facing the Academy

were visibility and getting new members involved in the Academy. She

summed up her thoughts on serving as an arbitrator:

I don’t quite mean [arbitration is] my religion. I

mean that it has been nothing but a joy, a challenge and a

huge responsibility. I think it is an honor and a privilege to

be chosen to make decisions on large issues or even very

small issues. The day that an arbitrator believes that any

issue is de minimis, she should quit the profession. I have

never lost the joy, the challenge and the excitement of

arbitration. Many of you have heard me say that I intend to

retire two weeks after I die. I hope I can make it.

Gootnick’s adoration was on full display during her presidential

address entitled, “My Love Affair with Arbitration,” a multimedia

extravaganza with original songs, comics, and heartfelt gratitude for her

profession. In her remarks, Gootnick said:

Id. at 300.

Id. at 319.

McPherson-Gootnick Interview, supra note 29.

Arbitration offered adventure, learning,

interaction with great minds, integrity, humor, humility,

and the thrill of accomplishment. Through my love affair,

I encountered a diversity of experiences. I saw a way to

serve people in workplace crises whose only salvation just

might be a professionally binding decision. Doors were

open to meeting other arbitrators, many of whom have

become life-long friends.

As I became entrenched in this field, I had opportunities

for progressive change, for expanding the horizons of our

profession, and I was deeply honored to become part of the

Academy, which serves ethically, with integrity, with

honesty and with good, hard work.

In 2002 and again in 2006, Cynthia Alkon, a professor at

Appalachian School of Law, surveyed only the women members of the

Academy, publishing her findings in 2006. In 2002 54 members responded

to her survey; in 2006 96 members answered her questions. The author

pointed out that while women comprised 30 percent of the legal profession,

they accounted for only 15 percent of the NAA’s membership at the time of

the second surveys, up from 8 percent at the time of her first survey.

One

unique statistic collected by Alkon was the number of female NAA members

who were related to other NAA members. She found:

Twenty-six percent of the 2002 respondents

reported being related to established arbitrators. In 2002,

half of the respondents related to arbitrators had married

arbitrators, and the other half reported that their fathers

were arbitrators. This number decreased in the 2006

survey, with 22.8% of the respondents reporting that they

were related to arbitrators, including one highly

experienced respondent who reported that her husband just

recently became an arbitrator. Four members reported their

husbands were arbitrators, one stated that her ex-husband

was an arbitrator, and another reported that her cousin was

an arbitrator. Two members reported that their fathers were

arbitrators.

In 2002 respondents reported earning 75 percent of their income

from arbitration; in 2006 this number had increased to 86 percent. In this

same interval the number of respondents stating that arbitration was their only

source of income increased from 39 to 50 percent. The average number of

years it took to reach this marker had increased from six to eight years.

2002 respondents lived in twenty states, but over half of them reported living

Margery F. Gootnick, “My Love Affair with Arbitration,” in Arbitration 2006: Taking Stock

in a New Century, Proceedings of the 59th Annual Meeting, National Academy of Arbitrators 1

(Patrick Halter & Paul D. Staudohar eds. 2007).

Cynthia Alkon, “Women Labor Arbitrators: Women Members of the National Academy of

Arbitrators Speak About the Barriers of Entry into the Field,” 6 Appalachian J.L. 195 (2006).

Id. at 200. One survey respondent objected to the question suggesting that nepotism accounted

for the entry of women into the profession.

in California, New York, or Philadelphia. New York alone accounted for

25percent of the women members. By 2006 the percentage in those three

states had decreased to 39 percent of the total.

The survey results suggest

that the women perceived that those in New York and California had had an

easier time starting an arbitration career than in other states.

Professor Alkon asked the respondents, “To what extent has your

gender affected your ability to become established as an arbitrator?” In 2002

85 percent of the respondents indicated that her gender had affected her

ability to become established; in 2006, the percentage answering

affirmatively had decreased to 70 percent. Several remarked that the advent

of collective bargaining in the public sector had increased opportunities for

female arbitrators. Comments included the observation that parties frequently

seemed to prefer having a woman arbitrator on certain kinds of cases. In the

second survey, most agreed that it was easier for women to become

established than it had been previously,

but all agreed that it was more

difficult in general to start an arbitration career.

Two terms after Gootnick, Barbara Zausner was elected President

in 2007. Zausner began her college education at Oswego State Teachers

College in upstate New York, graduating after a long hiatus with a BA in

English. When she returned to college at St. Johns University in NY, the

AAUP was trying to organize the faculty and Zausner refused to cross the

picket line protesting the firing of AAUP members who were in favor of

organizing. As a result, she became involved with the NYC teachers’ union

before she began her first teaching job. When she found herself laid off from

that job, she found a summer job writing educational materials for the

Communication Workers of America.

In the mid-1970s, the arbitration profession actively began to recruit

more women and minorities. The New Jersey PERC (together with AAA,

FMCS, and local agencies) offered a training program for arbitrators in which

Zausner and Tia Denenberg, who joined the Academy in 1981, enrolled.

While she was finishing her masters’ degree in Labor Relations at Rutgers,

Zausner served as an apprentice to Philadelphia arbitrator Joe Raffaele,

drafting opinions for his signature. She also participated in the arbitration

salon run by Eva Robins and Peter Seitz.

Zausner was listed on several arbitration rosters while still working

as an apprentice. Initially, she mostly heard cases in the public sector but soon

began hearing private sector cases, as well. Zausner found everyone in the

Philadelphia and New Jersey area to be kind and supportive of new

arbitrators. Zausner said that if she was being discriminated against as a

female arbitrator, she “wasn’t aware of it.” She said that she always felt that

her gender was “irrelevant” to her arbitration career.

Zausner could not ever

recall being mistaken for the court reporter at a hearing, a gaffe frequently

reported by women arbitrators.

When Zausner joined the NAA in 1983, she immediately began

serving on its committees. McKelvey, Robins, and Witt were deliberately

Id. at 201-02.

Id. at 205.

Id. at 203.

Telephone Interview with Barbara Zausner, NAA Past President (Oct. 28, 2019).

seeking out women to serve in leadership roles and Zausner was very soon

recruited by Witt to serve on the Board of Governors (BOG). Zausner could

not recall feeling unwelcome in the Academy, stating: “As long as women

were available and willing to take care of things, we were able to do whatever

we wanted. All you had to do was step up and do the work.”

Once Zausner

was in a position to do so, she joined Witt in trying to bring other women

along into leadership positions in the Academy.

Zausner said she was “delighted and surprised” when she was

nominated to serve as the NAA’s fourth female President, at a time when

women comprised approximately 15 percent of the Academy’s membership.

However, she presided over a very contentious time when the Academy was

debating whether to include employment cases in the cases counted toward

admission. In Zausner’s presidential address in 2008, she chose to pay

homage to her “foremothers,” acknowledging that she was only the fourth

woman to helm the NAA. She quoted from McKelvey’s presidential address,

which had sought to capture the prevailing social attitude toward women in

the workforce in 1970:

The [ ] candid arbitral view that females as a

class are to be regarded as the “weaker sex” was given

most eloquent and definitive expression by Arbitrator

Peter Seitz, who opined:

There is no basis on which it

should seem sound to deny to the

Company the right to indulge the

assumption made in most of the States in

this nation that females, as a class, and

because of their biological structure and

function, require more protective

regulation as a part of the labor force

than males.

Zausner also included Gladys Gruenberg’s observation regarding the effect

of the passage of the 1972 Amendments to the 1964 Civil Rights Act on the

careers of women arbitrators. Gruenberg wrote:

Sex discrimination cases needed women

arbitrators – at least that’s what the men involved thought.

They didn’t discover until it was too late that when it comes

to deciding cases, women arbitrators think the same way as

men.

The next woman to assume the mantle of the NAA Presidency was

Roberta Golick, whom Zausner described as her “best friend in the

Academy.” Golick was raised in Boston and attended Barnard College in

Id..

Barbara Zausner, “Presidential Address,” in Arbitration 2008: U.S. and Canadian Arbitration:

Same Problems, Different Approaches, Proceedings of the 61st Annual Meeting, National

Academy of Arbitrators 1, 4-5 (Patrick Halter & Paul D. Staudohar eds. 2009), citing Jean T.

McKelvey, “Sex and the Single Arbitrator,” supra note 19.

Id. at 5, citing Gruenberg Society of the St. Louis University John Cook School of Business.

Available online at alumni.slu.edu/gruenberg/lessons.

New York City, majoring in Asian studies with a concentration in Japanese

language. Because she was doubtful that her proficiency in Japanese would

permit her to earn a living, Golick decided to attend law school at Boston

University.

After graduation, Golick began what she referred to as a

“serendipitous” search for a legal position. She packed her resume in her new

briefcase and went to downtown Boston. She began her quest in the State

office building, riding the elevator to the top floor. Beginning with the first

office she came to, she walked in and introduced herself, explaining that she

was very interested in working in whatever department she had just arrived

in. Golick repeated this introduction in every office she could. On the 11th

floor, she found the Department of Labor. Because she was sitting in front of

him, the Chair hired Golick as general counsel. Consequently, her first

position after graduation was with the State of Massachusetts in the

Department of Labor at the Board of Conciliation and Arbitration.

The Chair also planted the seed of an idea for Golick, musing, “Who

knows, maybe someday you can be the first female mediator in this 100-year

old agency.” At the time, the agency employed eight mediators, all male,

none of whom was interested in mentoring her. Undeterred, Golick sat in on

mediations and arbitrations conducted at the agency. When she was later

asked if she experienced sexual harassment on the job, Golick replied:

I don’t think we really talked about sexual

harassment in those terms but I certainly was treated poorly

and in a sexual way -- in a way that made me very

uncomfortable at times by some of the people that I tried to

work with. Those who paid attention to me fell either into

the camp of helping me in a really wonderful way as

mentors and later as peers. And then there was the other

camp of men who made gestures, suggestions, overt sexual

remarks all the time. In those days, it was just different for

us. We didn’t want to make a fuss. We didn’t really feel

like we had a right to make a fuss. I was eager to maintain

my job and move forward and so I took a grin-and-bear-it

attitude towards these guys. I’m happy to say that I came

out ahead at the end. The cost was putting up with that

nonsense. But everything that I gained in that position

made it worth it. But I can’t imagine anyone doing that

today. I can only believe and hope that today women would

not put up with it. Today there would be support and

opportunity to put a stop to it, where there wasn’t then.

After a year Golick was promoted to Acting Chairman of the Board

when the Chair left to arbitrate full-time. She assumed the role of neutral chair

on a three-person arbitration board, which was a service provided by the State

without charge to the parties. The next year the department created a position

called Mediator Arbitrator, tailoring the qualifications to fit only her. As a

result, she did become the first female mediator in the Board’s history. She

Interview by Margaret Brogan with Roberta Golick, NAA President in Philadelphia (April

2012).

continued to mediate and arbitrate for the State and in 1978 was listed on the

American Arbitration Association’s labor roster. By 1982 Golick was

receiving so many outside appointments the time had come to leave her full-

time employment with the State. Golick said that some of the challenges of

beginning a mediation or arbitration practice are the same for everyone:

As you know, being selected for a case is the

hardest part of the job. We know we have the intelligence

to be good but we need to be given the opportunity to show

it. And that is the hardest thing for somebody who wants to

break into the field. How do you get picked when people

don’t know you? And how will they know you if you’re

not exposed to them? It was a dilemma 35 years ago and

it’s a dilemma today.

Golick believed that she benefitted early on from the success of other

women arbitrators in her region and because, as a woman, she stood out

among the arbitrators trying to get started. She recalled:

Another thing that enabled me to gain instant

recognition was the fact that there were very few women

doing arbitration and mediation in this country in the 1970s

and early ‘80s. There were some absolute stars and we

know who they are by the stories that we know about them.

They were the real pioneers. In New England, there were

very few women who were well known. And people who

didn’t even know who I was, knew that there was a woman.

And they would say who’s that woman who arbitrates and

somebody would answer, well you either mean Marcia

Greenbaum or you mean Roberta Golick. Marcia was the

real leader in the New England region, did wonderfully and

still does.

Golick remembered that when she first began hearing arbitration

cases, she faced the dual hurdles of being female and significantly younger

than anyone else in the room. She was frequently mistaken for the court

reporter when she arrived, as oftentimes the parties were expecting “Robert,”

not “Roberta.” But she also thinks that some parties believed that a female

arbitrator would better understand a case brought by a female grievant. She

thought that parties often sought a female arbitrator when the subject matter

might embarrass a man, such as a woman who had been disciplined for

staying too long in the bathroom due to “women’s issues.” She feels that in

general parties prefer having the choice of both women and men as arbitrators

because the diversity broadens the perspectives and backgrounds of the pool

of decision-makers.

In 1984, at the suggestion of Greenbaum and Arnold Zack, Golick

joined the NAA. Following Gootnick’s advice, Golick tried to meet one new

person at each meeting she attended. She cannot recall how many women

were in the Academy when she joined, but she doubts there were many,

Id.

because of the small number of women in the profession in general. Golick

said that the history of the Academy shows that it took a very long time for

women to get a foothold in leadership positions but believes now that people

are elevated because of their merit, not their gender.

Golick served on numerous Academy committees and in 2011 was

elevated to serve as the NAA’s fifth female President. In her presidential

address, she spoke of the role of empathy in deciding labor arbitration

matters, stating:

So, how do we achieve an appropriate separation

between our life experience and our arbitral

responsibilities? And how can the parties who select us for

our good judgment be assured that the product we’ve

delivered is a just outcome based on the record presented?

First, we must all acknowledge the fundamental truth that

we’re not robots.... [M]ost of us who arbitrate have been on

the planet for many decades and have witnessed and

experienced a lot of life. We don’t mechanically process

testimony and documents, spit out an answer and reset at

zero for the next hearing. Some of us can identify with the

downtrodden; some of us relate better to the business

establishment; some of us have hated our bosses; some of

us have been bosses; many of us have raised children,

buried parents and friends, and battled illnesses. We don’t

shed our identities at the hearing room door.

The following year Sara Adler was elected to the Presidency, and

for the first time the Academy was led by a woman in consecutive years.

Adler was raised in Chicago and attended the University of Chicago,

majoring in education and intending on becoming a teacher. She began

teaching High School English at age 19 when, due to her age and short

stature, she was “indistinguishable” from the student body.

She followed

her first husband to California where she taught special education students.

After trying social work, she enrolled in law school at the University of

California, Los Angeles.

After law school Adler remarried and began working in a large law

firm doing litigation work, which she disliked. Her husband, a management-

side labor attorney, asked Joe Gentile to take her on as an arbitration

apprentice, which he agreed to. Adler shadowed Gentile and practiced

neighborhood law to earn money. Eventually she worked as a hearing officer

for the Civil Service Commission. In 1978, two years after leaving the law

firm, Adler heard her first case as an arbitrator.

Adler recalled that at the time in California, parties were getting a

lot of pressure to use women arbitrators. Mei Bickner and Edna Francis were

also beginning to arbitrate in Southern California and Adler soon found that

Telephone Interview with Roberta Golick, NAA Past President (October 25, 2019).

Roberta Golick, “Presidential Address: The Human Condition: Its Impact On Arbitral

Thinking,” in Arbitration 2012: Outside In: How the External Environment Is Shaping

Arbitration, Proceedings of the 65th Annual Meeting, National Academy of Arbitrators 16, 19

(Nancy Kauffman & Matthew M. Franckiewicz eds. 2013).

Telephone Interview with Sara Adler, NAA Past President (May 27, 2020).

parties were often unable to distinguish among the three women. She said

that more than once, a party would refer to having appeared before her in a

case that she hadn’t heard, but she assumed that the arbitrator had been one

of the “other” female arbitrators in the area. One time at a LERA meeting,

another attendee read Adler the riot act about a case, but she soon realized

that she had again been mistaken for one of the other two. The three women

became friends, often lunching together and discussing the profession. By

1987 all three women were members of the NAA.

Generally, however, she found that being a female arbitrator was a

benefit to her career, despite often being mistaken for the court reporter when

she entered a hearing room. Adler enjoyed public speaking and was often

asked to appear on panels when the organizers were looking for a female

panelist. Her frequent speaking opportunities benefited her career greatly.

Adler began attending NAA meetings as an apprentice and joined

the NAA at the urging of Gentile. She recalls being very aware that only 6

percent of the membership at that time was female. While there were men

who were very friendly and welcoming in the Academy, Adler recalled that

Robins, McKelvey, and Gootnick made a point of ushering new women

members into the fold. Adler joined several smaller committees almost as

soon as she became a member of the NAA. When she joined the Legal

Representation Fund, she felt she was finally performing a very useful service

for Academy members. She proposed a formal connection for members to an

insurer, which helped to encourage reluctant members to get insurance. She

served as the editor of The Chronicle, changing the format from a newspaper

style to a magazine format.

A good deal of Adler’s practice is as an employment arbitrator. As

such, she was eager to see the NAA embrace policies that supported its

members who arbitrated non-labor employment cases. When she was asked

to serve as President, she accepted because she wanted to further the

Academy’s move toward becoming an organization that supports all forms

of workplace dispute resolution.

Adler was elected to be the Academy’s President in 2012. During

her term, she tried to increase the NAA’s focus on best practices for

employment arbitrators. She was also one of the instigators of what would

eventually become arbitrationinfo.com, the Academy’s website dedicated to

publicizing accurate information to the public about labor and employment

arbitration.

In Adler’s presidential address, she challenged the NAA members

to embrace the changes that were affecting labor relations in the United States

and Canada and to consider widening their view:

Without abandoning our core mission, we should

begin to seriously consider how we can proactively reach

out to the workplaces in both of our countries to develop

and promote peaceful ways to manage the conflict that will

follow in the absence of broadbased unions and arbitration,

and which will provide for a reasonable measure of due

process and fairness for both employees and employers.

Id.

***

In our NAA community of both arbitrators and

advocates, there is a tremendous body of experience and

thoughtfulness that could, and in my view, should, be able

to craft an expanded body of workplace dispute resolution

processes—probably most effectively with our sister

organizations.

The shortage of women members in the NAA was reflected in

arbitration panels generally. In a 2014 paper on gender diversity in labor and

commercial arbitration, the author found that the lack of diversity on

arbitration panels was frustrating to the users:

Those involved in alternative dispute resolution

processes, including corporate leaders, have openly

complained about the lack of gender diversity in arbitrator

selection lists, saying that they are repeatedly getting the

“same short list of mediators and arbitrators to choose

from, consisting mainly of older white males.”

The author suggested that there were both supply and demand reasons for the

scarcity of women serving as arbitrators, writing that an implicit bias may

affect selection of arbitrators. He hypothesized,

Arbitrators must express confidence and may

need to be aggressive in their decision making in order to

be considered effective, yet women who do behave in such

a way are likely to be viewed negatively by both men and

women. These women are therefore less likely to be chosen

to arbitrate, even though they are utilizing tactics that might

be considered perfectly acceptable or even desirable if

utilized by a male arbitrator.

Marg

aret (“Margie”) Brogan of Philadelphia joined the Academy

in 1996 and served as its seventh female President in 2016-17. Brogan

was born in New Jersey and attended St. Joseph’s College and Villanova

Law School. She was the first person in her family to go to college and to

obtain a graduate degree.

While Brogan attended law school, she began working for a union-

side firm. She got the job because her mother was a clerk at a Teamsters local

union. One day a lawyer who represented the Teamsters walked in and said

to Brogan’s mother, “Don’t you have a daughter in law school?” While

Brogan initially resisted the idea of getting a job through her mom, it was an

Sara Adler, “Presidential Address: Arbitration Under Fire,” in Arbitration 2013: A Tale of Two

Countries, Proceedings of the 66th Annual Meeting, National Academy of Arbitrators 23, 27

(Matthew M. Franckiewicz et al. eds. 2014).

Turner Caley, “‘Old, White, and Male’: Increasing Gender Diversity in Arbitration Panels,”

CPR International Institute for Conflict Prevention & Resolution, March 3, 2015, at 2, citing F.

Peter Phillips, “Diversity in ADR: More Difficult to Accomplish Than First Thought,” Disp.

Resol. Mag., Spring 2009, at 14.

Turner Caley, supra note 65, at 10.

excellent union firm where she learned real world labor law and arbitration,

and the experience helped her gain her next job.

After graduating from law school, Brogan immediately went to

work for the National Labor Relations Board. For the next six years, she

gained trial experience and did a significant amount of hands-on work.

Brogan left the Board after her second child was born, feeling that trial work

was not compatible with mothering two small children. To earn money, she

began teaching labor law and arbitration courses at her college alma mater at

night, but she was looking for something more challenging.

Brogan spoke with Alan Symonette, whom she knew from

Villanova. He had just begun an arbitration practice and encouraged her to

start one as well. In 1990, at the age of 35, Brogan was accepted on the

American Arbitration Association’s labor roster and began hearing

arbitration cases.

She soon found that although she had had no difficulty controlling a

hearing while at the Board, the parties often seemed to want to push around

newer arbitrators, especially a “young-looking woman.” She found the

atmosphere in Washington, D.C. to be more “genteel” and the ones in

Philadelphia and New York to be tougher. Brogan recalled that in one of her

early arbitrations at which she was pregnant with her third child, she

suggested that they take a lunch break. The parties did not want to recess but

she explained she needed to eat. They told her she could eat while they

continued, so she ate her lunch while they questioned witnesses and passed

exhibits through her. Much later, those parties told her that they were

humiliated recalling how they had treated her that day.

Brogan is glad to see that the influx of women into labor arbitration

has changed the atmosphere in some ways. When she was a new arbitrator,

she often got pushback if she tried to end a hearing day so that she could

retrieve her children from day care. Now, she sees younger male attorneys

with that same concern and wonders whether they understand how difficult

it was for women before fathers regularly shared childcare responsibilities.

She did not serve an apprenticeship to anyone in the field. Although

one arbitrator offered, she had to turn him down because his practice involved

extensive travel. She could not yet afford the travel expenses and had three

young children at home. Neither did she participate in any formal training

programs or any arbitrator “salons.” But while a new arbitrator herself,

Brogan began training newer arbitrators through the American Arbitration

Association.

Five years after she decided her first case, Brogan joined the NAA.

She felt the Academy members were warm and welcoming, and becoming a

member had a positive effect on her arbitration caseload. She was appointed

to several Academy committees right away, including membership, where

she learned about the application process. Brogan saw first-hand the conflict

regarding which cases should count toward membership, and that eventually

led to her participation in the New Directions Committee. To Brogan the

expansion of the types of “countable cases” was a recognition of the realities

of the market, not a lowering of admission standards. Her philosophy is that

Telephone interview with Margaret Brogan, NAA Past President, (October 22, 2019).

Id.

an arbitrator who is consistently acceptable to the parties should be welcomed

by the NAA. She said: “Parties have made it clear that they want arbitrators

who resemble them and resemble the work force. They want diversity.”

Even before beginning her term as President, Brogan made clear that

one of her passions is the mentoring and education of newer arbitrators. As

the National Coordinator of Regional Activities, Brogan encouraged robust

activity by the regions in educating and supporting arbitrators who were “not

yet” NAA members. As President she created the Outreach Initiative for the

express purpose of improving the existing manner of mentoring and training

arbitrators and creating new models for the future.

In her presidential address, Brogan asserted that the organization

could “only benefit from the expansion of diversity and inclusion in our

ranks” and outlined programs and ideas for mentoring aspiring arbitrators that

were taking shape through the Academy’s regional chapters. Brogan then

reflected on the role and experience of women in the Academy and

challenged the Academy to include in its ranks more members who reflect

the diversity of the current workforce:

Seventy years. As I stand up here, I am beyond

humbled and honored to be at this podium, a woman

president of the Academy. It is gratifying that I will be

followed by the next female president, Kathleen Miller.

Forgive me, gentlemen, I am going to focus on

women – because I can, and because I must. I am proud to

say that women now attain many leadership positions in

this organization. They sit on our board of governors and

chair our most important committees.…While engaged in

extremely vibrant arbitration practices, these women have

taken on an enormous amount of work, giving us their time

and talent for free to improve the Academy and to enhance

our profession.

Given the clear female presence, one might say,

what is the big deal? Why even call attention to gender?

Indeed, early in my regional visits I said something to that

effect – that being a woman president of the Academy was

no big deal – thinking in part that was true, and also

thinking being humble was the right approach. Sitting next

to me was our shining-light role model, Helen Witt. She

sternly but quietly and kindly said to me, “Don’t you ever

say that again. It is a very big deal.” Helen will be receiving

an honorary life membership this Saturday.

I carried Helen’s words with me all year. As I

thought about it, I was reminded that the Academy’s story

includes the fact that even though this is the 70th birthday

of the Academy, I am only the seventh woman called to be

president….

Id.

That history is important to remember. We were

slow to change, due to many forces. But we are now faced

with an enormous shift in the political landscape that will

rattle our labor laws and rock our workplaces….

I am not talking about a change in theory, but a

concrete change in how our organization does things.

Today I challenge the Academy, the appointing agencies,

and the parties who select us to find real ways to bring new

people into our profession and into our organization. We

need new arbitrators who reflect the full range of our

society and the folks who come to our arbitration table.

After serving as President, Brogan continued to chair the Outreach

Committee, focusing on inclusion and providing assistance to newer

arbitrators. Brogan has seen small but incremental changes in the way newer

arbitrators are supported. She said that after her children, the committee “is

the greatest thing I’ve ever accomplished. It is so rewarding to learn from the

newer arbitrators and to assist them in their practice. Their joy is my joy.”

In the year following Brogan, Kathleen Miller served as the

Academy’s eighth female President. After Miller earned her undergraduate

degree in English, she taught writing and literature courses in college while

she earned her master’s degree and worked on her Ph.D. As Miller was

beginning to work on her dissertation, she was introduced to the labor

arbitration profession by friends in the legal community. After accepting an

invitation to attend an arbitration chaired by Richard Mittenthal, she was

hooked. Miller found herself at a crossroads: should she complete her

dissertation to finish her Ph.D. in English or go to law school? She knew

either road would be long and difficult, especially with two young children

at home, but she decided to make an investment in herself. She enrolled in

law school at the University of Pittsburgh with the intention of becoming a

labor arbitrator.

During this time, Miller called McKelvey, despite never having met

her, because she had read an article about McKelvey’s course in women in

arbitration. Miller figured the worst that could happen was that McKelvey

wouldn’t speak with her. Instead, McKelvey was gracious and encouraging,

although she told Miller that the course for women arbitrators would not be

repeated. McKelvey suggested that Miller contact other arbitrators for

insight and direction. That led to more encouragement, especially from Witt,

who was extremely generous with her time and advice. Miller recalled the

time when Witt invited her and her family to the Witt home for an elaborate,

home-cooked Sunday brunch.

During Miller’s second year in law school, one of her friends

appeared as an advocate in an arbitration before Sylvester Garrett and

mentioned Miller. When the friend later described the conversation, Miller

Margaret Brogan, “Presidential Address: Changing the Narrative: A Call to Increase Diversity

and Inclusion in the Ranks of the National Academy of Arbitrators,” in Arbitration 2017: The

New World of Work, Proceedings of the 70th Annual Meeting, National Academy of Arbitrators

245 (Stephen L. Hayford ed. 2018).

Telephone interview with Margaret Brogan, NAA Past President, (October 22, 2019).

Telephone Interview with Kathleen Miller, NAA Past President (October 29, 2019).

was surprised to learn that Garrett was already aware of her burgeoning

interest in labor arbitration. Miller gathered a stack of her writing samples

and sent them to Garrett, mentioning her friend’s name. Garrett invited her

to lunch, where he warned Miller how difficult it was to break into arbitration

and told her to call him when she finished law school.

By the time Miller graduated, however, she had accepted a clerkship

with a federal judge. But before she could start, she received a call from

Garrett who had just returned from a six-week trip to China and needed

assistance. Miller returned from their meeting with an armful of files,

wondering where to begin with the work she had agreed to perform on a trial

basis. When Garrett later presented Miller with an employment contract to

work as his full-time assistant, she hadn’t yet taken the bar and the judge was

expecting her to come to work for him after she did. She said she knew the

judge would have no trouble replacing her, but she never could replace the

opportunity to work with Garrett in her chosen profession. She recalled that

the judge was shocked when she notified him that she would turn down a

clerkship in the federal court. But according to Miller, Garrett proved to be a

committed mentor as well as an employer, and she never has regretted her

decision.

While Miller worked for Garrett, she also began hearing cases on

her own and gradually built her own caseload. She recalled the first case she

heard on her own in 1987 and is proud that she still serves on the parties’

arbitration panel 33 years later. Miller recalled fondly that for the first decade

of her career as an arbitrator, she shared a suite of offices with Garrett and

Clare (“Mick”) McDermott. During those years, she was appointed to the

Bethlehem Steel/United Steelworkers arbitration panel, where she worked

under Impartial Umpire Rolf Valtin. Miller is grateful to McDermott and

Valtin, whom she counts among what she called her “embarrassment of

riches of mentors.”

As Miller’s caseload grew, she saw that being a female arbitrator

both helped and hindered her career. She laughed at the many times she was

mistaken for the court reporter when she entered a hearing room. She also

recalled being told by parties that she had not been selected for a particular

case because they felt embarrassed about presenting to a woman detailed

evidence of the grievant’s alleged obscene misconduct and being a speaker

at a conference where another speaker addressed the group – accurately – as

“Gentlemen and Kathy….” But Miller also recalled more than a few

occasions when parties were openly enthusiastic about the opportunity to

retain a woman as an arbitrator, and she believes that she benefitted from

affirmative efforts to increase diversity.

Both Garrett and McDermott encouraged Miller to apply to the

NAA. She said she waited until her case count far exceeded the minimum

number, as she thought she wouldn’t be able to face her mentors if she were

turned away. Happily, she was accepted in 1994. Even before she became a

member, Miller attended Academy meetings and recalled Gootnick’s warm

welcome, which included spending generous amounts of time providing

advice and more encouragement. Miller became heavily involved in

Id.

committee work, which led to leadership positions in the NAA. She said her

ongoing work with many other devoted members has resulted in deep

friendships that have made the Academy “both a professional and a personal

home.”

Miller served as President in 2017-18. She is proud to be one-half

of the first married couple to serve as Presidents of the NAA; her husband,

Shyam Das, was President in 2014-15. Nonetheless, she said, their

presidencies were distinct as they did not initiate or work on the same

projects. Miller appointed the Bloch Committee to study the viability of

continuing the Fall Education Conference. She also was, and remains, a

strong supporter of the work of the Outreach Committee, seeking to increase

diversity among arbitrators, which had been initiated by Brogan the previous

year. Miller is concerned about the future of the profession and the Academy

unless a substantial number of arbitrators are willing and able to make it their

life’s work, not just a job they do for a few years after retiring from another

career.

In her presidential address, Miller, like Golick, spoke about the state

of arbitration in general, rather than that of women arbitrators specifically.

She warned of the political climate threatening the very existence of

arbitration:

It is for all these reasons that, with all due respect

to the Academy’s historical leaders, I am convinced that

our members face unprecedented challenges in 2018. I

have no definitive answer to these challenges. I only can

convey some of the thoughts that form the foundation of

my own game plan. To a large extent, all the participants

in labor arbitration—the parties, the advocates, and we

arbitrators—will be passive vessels as we await legal and

political events we have no ability to control. But I believe

that, although our profession likely will contract for the

foreseeable future, labor arbitration will survive. And as

long as it does, we labor arbitrators, as always, actually will

have an inordinate degree of control with respect to our

ability to shape and preserve the unique and historically

effective process of labor arbitration.

Miller suspects that many people believe that the Academy has

“solved its problem” with respect to women members because the women in

the NAA are disproportionately visible. She said because women always

have performed a lot of committee work and more recently have taken on

many leadership roles, some people may perceive that there are more women

members than there actually are. Miller expressed gratitude for her ability to

stand on the shoulders of the great women arbitrators who preceded her:

McKelvey, Bairstow, Gootnick, and Witt. She acknowledged: “As difficult

Id.

Kathleen Miller, “Presidential Address: Rising to the Challenge,” in Arbitration 2018:

Boundaries and Bridges, Proceedings of the 71st Annual Meeting, National Academy of

Arbitrators 19 (Timothy J. Brown ed. 2019).

as it was for me, it was harder for them. But they didn’t pull the ladder up;

they reached back to help others who came after them.”

As President-Elect Susan Stewart prepares to take the helm of the

NAA in 2021, the 2020 Membership Directory of the Academy lists 584

members in the United States and Canada. Of these 125, or 21 percent, are

women. Stewart, the first female Canadian arbitrator elevated to the

Presidency, thinks that the NAA has finally reached its critical mass of

women leaders. Her opinion is that the women who have risen in the NAA

are extraordinarily hard workers and are deeply committed to caring for the

Academy. As well, she has observed their focus on identifying and nurturing

future leaders.

Stewart was born in Vancouver, British Columbia and was raised in

a very small village on a lake north of Kingston, Ontario. She feels fortunate

to have grown up with immediate access to nature and the surrounding rural

community. Weekly visits to the library, in a town about thirty miles away,

were a highlight of her childhood. Based on her reading, she knew from an

early age that she wanted to be a lawyer. She received her undergraduate and

law degrees from Queen’s University in Kingston. Although 20 percent of

her law school class were women, Stewart recalls being asked why she was

taking a man’s place. After graduation, she articled at the Ontario Labour

Relations Board, where she met Michel and Pam Picher.

Stewart practiced law for a couple of years and began working for

the Workers’ Compensation Appeals Tribunal as an adjudicator after she had

her first child. Eventually she applied to the Ontario Ministry of Labour

arbitrator development course and believes she was accepted, despite her

young age, because of her experience as a neutral. Those who successfully

completed the course were listed on the province’s arbitrator roster. Stewart

was called to a meeting and told that her work and recommendations were

faultless, but they believed she was too young and too nice to be successful

as an arbitrator. Despite those reservations, she was placed on the list and

appointed to several cases. Her practice grew in both the private and public

sectors. In 2001, she was appointed as the Chair of the Ontario Grievance

Settlement Board, with a roster of approximately 30 arbitrators.

Stewart joined the NAA in 2002 at the insistence of Michel Picher.

She was happy to reconnect with Michel, Pam, and as well as with Ken Swan,

a former law professor, in Academy activities She was also very pleased to

meet Canadian colleagues from other parts of the country, and to develop

relationships with wonderful American colleagues. One of the benefits of the

Academy that she identified is the opportunity to discuss issues and learn

different approaches to problem solving, especially because arbitration can

be an isolating profession. Once she was a member, Stewart was mentored

by Golick, Adler, Brogan, and Miller, who nurtured her and guided her

through the workings of the organization. Stewart says, “Women are

inclusive…and are sensitive to challenges that other people have to go

through.”

Telephone Interview with Kathleen Miller, NAA Past President (October 29, 2019).

Telephone Interview with Susan Stewart, NAA President-Elect (November 15, 2019).

Id.

Stewart points out that the Code of Professional Responsibility

makes it incumbent on arbitrators to contribute to the training of new

arbitrators. During her presidential term, she hopes to continue the efforts of

those who are seeking to increase diversity in the profession and to develop

new arbitrators. She is interested as well in broadening opportunities for our

members. She notes that the Academy brings the highest standards of

competence and ethical conduct to the neutral dispute resolution process.

Going forward, it appears that diversity and inclusion and expansion of

opportunities will continue to be a focus for the Academy.

Id.

Gladys Gershenfeld, Rose Jacobs, and Gladys Gruenberg

Bonnie Bogue

and Mei Bickner

Women of the NAA

Kathleen Miller

Marcia Greenbaum and Frances Bairstow

Roberta Golick

Barbara Zausner and Margaret Brogan

Jacquelin Drucker

Frances Bairstow and Allen Ponak

Margery Gootnick and Sara Adler

Alice Grant and Jean McKelvey

hapter 5

THE ACADEMY AND THE RAILROAD INDUSTRY

M. David Vaughn

ntroduction

Railroads were the first national industry and the first unionized

industry. As railroads expanded and evolved, they became the most

important industry in the economy and were the subject of special

governmental regulation to ensure reasonable rates and reliable service.

Railroads were also the subject of the first comprehensive federal laws

governing employee and labor relations. Relations between labor

organizations and railroad management were frequently contentious. Strikes

and lockouts became recurrent threats to the national economy. The

government sought ways to minimize disruptions that might result from such

labor-management strife. Thus, the dispute resolution process plays a

particularly important role in the industry. Technological change in the

industry and the development of alternative forms of transportation have

changed, but not completely loosened, the regulatory structures.

Industry Overview

In 1945 at the end of World War II, railroads employed three million

workers

and moved most freight and passengers. In the 75 years since, the

industry has experienced continuous technological and operational change

and has adapted to a very changed role in the overall transportation system.

By 1999 freight railroads employed only 228,000 employees, but moved 1.4

trillion-ton miles, an increase in employee productivity from the industry’s

1916 peak route mileage of approximately 24.5 times. Railroad industry

productivity has continued to increase, while employment has continued to

decline. While the percentage of represented employees has not declined, by

the 2019-2020 national bargaining round, the industry had only 120,000 such

employees. That number will almost certainly continue to decline, even as

productivity continues to increase.

Technological and Operational Changes

and Their Impact on Labor Relations and Employment

Railroads excel in long-haul movements of freight and have

expanded or maintained significant shares of intermodal traffic, “just-in-

time” manufacturing traffic, grain, coal, chemicals, and materials, and more

The author acknowledges the assistance of arbitrators DeAndra Roaché and Richard Radek.

Railroad unions began in 1863 as “Brotherhoods,” and were essentially fraternal organizations.

They evolved to resemble the modern labor union model by the mid-1870s, and played a major

role in the Great Strike of 1877. Railroad unions are called “organizations” or “brotherhoods.”

U.S. Railroad Retirement Board, 23 Monthly Rev. No. 11 (Nov. 1962).

recently fracking supplies. To handle the increased demands, railroads have

converted to high-performance diesel-electric locomotives, have shed or

delegated to smaller carriers their less productive branch lines, and have

consolidated duplicate routes and facilities. Single-car local deliveries have

declined precipitously; the formerly ubiquitous boxcar has been replaced by

intermodal shipping containers moved by rail from ports and transferred to

truck trailers for final delivery. Bulk goods such as coal and grain frequently

move in unit trains, which require less handling.

Railroads have consolidated traffic on a smaller number of main

lines, producing ever increasing amounts of freight moved. The

consolidation of smaller lines reduced the more than 65 large carriers in the

1960s to seven systems: Union Pacific and Burlington Northern Santa Fe in

the West, Norfolk Southern and CSX in the South and East, and Canadian

National, Canadian Pacific, and Kansas City Southern in the Midwest. Trains

that once languished in rail yards awaiting switching and transfer to the next

carrier now move long distances, virtually without delay other than necessary

crew changes. The 1971 creation of Amtrak, a quasi-governmental

corporation, allowed freight railroads

to escape most of their intercity

passenger trains. The creation of regional transit authorities has transformed

commuter rail service.

The industry’s technological and operational changes

have resulted

in reductions in the size of freight train crews in most cases from five to two,

even as the power and speed of the locomotives they operate and the tonnage

hauled have increased dramatically. Computers, communications

technology, and automatic car identification have streamlined accounting

procedures. Maintenance of way equipment and procedures have been

mechanized and welded rail has replaced jointed rail, resulting in significant

reductions in employment. Higher capacity and better utilization have

decreased the size of the freight car fleet. Higher reliability by larger

locomotives and locomotive leasing have resulted in smaller shop forces.

More recently, the adoption by many carriers of so-called Precision

Scheduled Railroading (PSR), which structures railroad operations to

emphasize point-to-point freight car movements on simplified routing

networks, with fewer, longer trains operating on fixed schedules, has

improved railroad financial and operating metrics, uses fewer freight cars and

locomotives, and results in fewer workers being employed for a given level

of traffic. Implementation of congressionally mandated Positive Train

Control (PTC) has also affected railroad operations and intensified the

discussion whether trains can be safely operated with a single crewmember

in the cab. As indicated, the smaller numbers of railroad employees are not

only far more productive than their predecessors but perform far more

complex duties requiring greater training and responsibility in a closely

regulated environment. Both equipment and rules are more sophisticated.

Railroads other than Amtrak, commuter rail authorities, and shortlines.

For example, the conversion to diesel locomotives from steam eliminated the need for

locomotive firemen. The development of integrated trackside defect and wheel and axle heat

detectors eliminated the need for a caboose at the rear of trains and the crew members who

formerly staffed it.

For an understanding of how the industry operates, see John H. Armstrong, The Railroad; What

It Is, What It Does (5th ed. 2008).

Accommodation of Changes through Collective Bargaining

For more than nine decades, the freight railroads have conducted

collective bargaining negotiations on a national, multiemployer, multiunion

basis. The National Carriers’ Conference Committee (NCCC) of the

National Railway Labor Conference (NRLC) represents most of its members

in national (multi-employer) negotiations with the twelve major rail labor

organizations. Labor had a similar umbrella organization, the Rail Labor

Executives Association (RLEA), that performed similar representation and

coordination functions. The erosion of national bargaining and other factors

resulted in RLEA’s demise, replaced by shifting ad hoc union coalitions. The

bargaining process has been remarkably successful in reaching contract

settlements without crippling labor strikes or lockouts. In fact, over the past

30 years, there have been only two days of service disruption arising from

rail industry bargaining; the most recent was in 1992. The technological and

operational changes described have affected the terms and conditions of

employment that the parties have implemented through the collective

bargaining process. When bilateral bargaining, mediation, and interest

arbitration procedures have been unsuccessful, Presidential Emergency

Boards (PEBs) have been used as a last resort.

The process has resulted in pay and benefits packages for rail

employees that are among the best of all industrial jobs in the United States,

as well as a profitable, stable industry. Indeed, the elimination of firemen,

the relaxation of craft work rules, the elimination of cabooses, the change

from mileage-based compensation for operating employees, evolution of

health and welfare benefits, employee scheduling and rest, and initial forays

into single-person crews and unmanned automated locomotives have all been

achieved through the dispute resolution process. Other changes in terms and

conditions of employment, such as drug testing and certification

requirements, have been imposed by federal law and regulation.

In almost all cases, railroad employees continue to be employed and

to be represented by labor organizations, which remain generally organized

by “crafts,” that is, by types of work. Each craft guards its jurisdiction.

However, as a result of changes in technology and operations, some crafts

and classes of employees have disappeared or been merged into other crafts

represented by other consolidated labor organizations. For instance, trainmen

are now able to perform any duties formerly performed by firemen and

hostlers. Machinists are able to perform some items of electrical work in

connection with a particular mechanical repair or installation task. Employees

of carriers consolidating or abandoning duplicative lines or unprofitable

branches have generally been beneficiaries of negotiated labor protective

provisions (LPPs) required as conditions of approval of the transaction.

The assignment or reassignment of work to crafts in the face of such changes resulted in large

numbers of jurisdictional disputes over work, called “scope” claims, named after the contract

rules that provided for jurisdiction. Scope claims are processed in the same manner as other

rules cases. See infra discussion. Such claims have evolved as crafts have merged. Craft lines

have rationalized and relaxed in the face of new technology and through negotiations.

See infra discussion.

Railway Labor Act

Railroad industry labor relations are governed by the Railway Labor

Act (RLA),

a unique federal statute jointly developed by railroad

management and labor organizations and, as so written, adopted by Congress

in 1926. A series of labor strikes and lockouts beginning in the 1880s had

resulted in several attempts to achieve labor-management stability through

legislation. Each attempt failed for various reasons. In 1922 the shop crafts

had initiated a protracted national strike that created great disruption to

commerce, ending only with the use of force by several state governors and

the Harding Administration. In the aftermath of the strike, it became apparent

to many that a comprehensive legislative solution was needed to stabilize the

industry’s labor-management relations. The culmination of the parties’

efforts was the enactment of the RLA. The purpose of the law is to protect

and balance the interests of management and labor, while minimizing the

likelihood of interruptions in commerce that might result from strikes or

lockouts.

The provisions of the RLA applicable to railroads have remained

basically unchanged since 1934. The Act has been amended to include

airlines

and commuter railroads, and to create public law boards (PLBs) and

special boards of adjustment (SBAs).

Both labor and management have

resisted efforts to change the law in other ways, notwithstanding ongoing

criticism of its structure and operation.

Under the RLA, employees have the right to form and join labor

organizations, whose independence is protected. Carriers have the obligation

to recognize and bargain with the organizations, and to reach agreements with

them. The RLA as written did not provide for compulsory, binding resolution

of employee grievances. This fundamental weakness was remedied by the

1934 amendments to the Act, which created the National Railroad

Adjustment Board (NRAB) to adjudicate claims (grievances).

Organizations and individual employees have the right to grieve claimed

violations of existing agreements and to have their claims adjusted.

Arbitration decisions under the RLA are final and binding, with very limited

grounds for judicial review.

45 U.S.C. § 151 et seq. (2018). A history of the RLA through 1976 is The Railway Labor Act

at Fifty (Charles Rehmus ed. 1976). For an overview of the Act and its operation, see ABA

Section of Labor and Employment Law, The Railway Labor Act (2012); Frank N. Wilner,

Understanding the Railway Labor Act (2009).

See infra ch. 6, Joshua Javits, “NAA’s Role in Airline Labor-Management Relations.”

These special boards are commonly called “public law boards” after Public Law 89-456 that

amended the RLA (45 U.S.C. § 153 Second) to create them. They supplement the National

Railroad Adjustment Board.

See, e.g., The Dunlop Commission on the Future of Worker-Management Relations: Final

Report (Dec. 1, 1994) (hereinafter Dunlop Commission); Frank N. Wilner, RLA and the

Dilemma of Labor Relations (1991).

These amendments created the National Railroad Adjustment Board (NRAB), 45 U.S.C. § 153

First, to resolve grievances (minor disputes) between railroads and their employees.

Judicial review of awards of the NRAB, PLBs, and SBAs are provided in paragraphs (p), (q),

and (r) of § 153 First of the RLA.

National Mediation Board: Structure and Function

The National Mediation Board (NMB) is the independent agency of

the Executive Branch of the Federal Government that administers the RLA.

It is comprised of three members, whose nominations are for staggered three-

year terms, continuing after expiration until replaced. NMB members are

proposed by the President of the United States and confirmed by the United

States Senate. Members have generally been professionals in railroad

industry dispute resolution, either as management or labor advocates or as

neutrals. NAA members Robert Harris, Joshua Javits, and Helen Witt have

served as NMB members during the last 25 years.

The NMB oversees RLA section 6 (major) disputes

by monitoring

the industry and its collective bargaining and by providing mediation by a

cadre of in-house mediators and, on occasion, by Board members themselves.

It makes recommendations for appointments to Presidential Emergency

Boards (PEBs) and provides logistical support for PEBs once selected. The

NMB also administers RLA section 3 (minor) disputes). Claims involve

either employee discipline or contract interpretation (“rules”) issues arising

from the interpretation or application of existing agreements. The RLA lacks

unfair labor practice provisions. Disputes which would be resolved

administratively as ULPs under the National Labor Relations Act must be

heard as section 3 disputes, or in court.

The premise of the Act is that minor disputes will be adjusted

through “on-property” handling, which is the functional equivalent of

grievance steps. However, if claims are not resolved on the property, a party

may appeal the dispute to arbitration. The NRAB is the default adjudicatory

body provided by the RLA. It is divided into divisions and hears disputes

involving multiple carriers and organizations. Bipartite panels are designated

to hear disputes. If the panel deadlocks – which it almost always does – the

dispute is referred for arbitration using neutral arbitrators (“referees”), who

sit as ad hoc members of the NRAB for purposes of breaking the deadlock.

Neutrals are selected by NRAB divisions from the roster of neutrals

maintained by the NMB, which appoints and pays them. Referees are

generally appointed to hear multiple cases at a time (“dockets”).

The original plan of the RLA was to resolve minor disputes on a

national basis in recognition of the national structure of contracts, and to

develop uniform interpretations of contract language and disciplinary

standards. The thinking was that disputes regarding national agreements

should be interpreted and resolved on a uniform national basis, with ever

declining numbers of unresolved issues. Virtually no disputes were resolved

in that manner, which led to the enactment of a provision that added neutrals.

In 1970, in response to the large case backlog at the NRAB,

Congress amended section 3 to allow establishment of single-carrier single-

organization boards of arbitration to adjust minor disputes. These tribunals

For a description of the history and operation of the NMB, see Charles M. Rehmus, The

National Mediation Board at 50 (1984).

The classifications of disputes as “major” and “minor” do not appear in the Act but have been

adopted to describe disputes and the procedures that apply to them. Minor disputes involve

grievances concerning the interpretation and application of existing contract terms and

conditions. Major disputes involve the negotiation of new or amended agreements and the

changes to terms and conditions that result.

are called public law boards (PLBs) or special boards of adjustment (SBAs)

and are also administered by the NMB. They constitute alternative forums to

resolve section 3 disputes and may be elected by individual carriers and

organizations. PLBs and SBAs are created by written agreement of the parties

and approved by the NMB. They give those parties more control over the

priority and scheduling of cases and the selection of neutrals to hear them.

The parties agree on a neutral or panel of neutrals to handle disputes assigned

to each board.

The NMB works with railroad industry stakeholders who provide

information, assessments, and recommendations. In 2009 the NMB formed

a successor group to continue the work begun by the original Dunlop

Commission. The Dunlop II Group provides feedback on agency

performance, industry trends, worker-management relations, and other

information vital to the NMB mission. The NMB has also established a

Section 3 Committee to discuss minor dispute initiatives, and it sponsors an

Arbitration Forum to obtain feedback from users of the section 3 process.

This group includes representatives of rail labor and management as well as

a representative from the arbitration community.

The NMB administers a roster of neutrals who serve in railroad

dispute resolution.

All section 3 neutrals must be listed on the NMB roster

to be eligible for selection to hear section 3 minor dispute cases. The NMB

does not make arbitrator selections or send out lists of neutrals except in rare

circumstances. Those selections are left to the parties, either directly or from

panels provided. Neutrals so selected serve as government contractors and

are subject to NMB pay rates, procedures, scheduling, and federal

government travel regulations. Placement on the NMB’s roster of arbitrators

is for one fiscal year. Retention on the roster is not automatic; arbitrators are

annually required to submit an application for retention.

The NMB pays the fees and travel expenses of the arbitrators. Each

fiscal year the NMB awaits budgetary approval from Congress and usually

operates by continuing resolution from the previous fiscal year’s budget until

approval of the new budget is received. Performance of section 3 work is

subject to the availability of government funds and NMB approval. Railroad

arbitrators are issued an official work order to hear and render decisions on

cases for which they have been selected. Work orders generally expire at the

end of each fiscal year. Prior to receiving compensation or reimbursements,

arbitrators are required to register with the government’s System for Award

Management (SAM). Requests to perform compensable service must be

authorized through the NMB’s online Arbitrators Work Space system and

submitted to the Office of Arbitration Services. Hearings must be conducted

within 120 days of the date of arbitrator assignment. Once the cases have

been heard, the arbitrator must render the awards within 90 days of the

hearing unless otherwise mutually agreed by the parties.

The NMB, parties, neutrals, and the section 3 groups have worked

diligently and successfully to reduce the large backlogs of cases that have

periodically developed. As this is written, there is no appreciable backlog of

Although the airline industry is also governed by the RLA and is overseen by the NMB, the

arbitration process, including neutral selection, is entirely separate.

section 3 cases.

Increased government funding has played a major role in

backlog reduction.

There have been efforts through the years to reform, streamline, or

restructure the section 3 arbitration process. These efforts have included

introduction of additional types of alternative dispute resolution, e.g.,

grievance mediation, pilot or lead case designation, parties-pay arbitration,

and expedited boards, to NMB-required filing fees for grievance arbitration

cases to outright elimination of the section 3 process. These initiatives have

met with limited success. The use of grievance mediation has increased, in

large part because of the NMB’s encouragement, and because claims

backlogs can be reduced by the technique. However, claims referred to

mediation seldom include serious discipline cases, such as long suspensions

or dismissals. While management decries the volume of cases filed and has

generally favored ending government-paid arbitration, rail labor has opposed

any effort to chip away at the publicly funded section 3 structure. It argues

that it agreed, at the time the RLA was negotiated, to limit labor’s ability to

exercise economic power (strikes) in exchange for publicly funded arbitration

of minor disputes. If public funding for the process were reduced or

eliminated, the organizations would lose the benefit of the bargain. That

opposition notwithstanding, some limited numbers of section 3 disputes are

handled by parties with private funding before so-called “parties pay” boards

of arbitration. Such boards may be used for disputes of particular importance

or disputes in need of prompt resolution.

The selection of cases to be arbitrated, the tribunals to which cases

are assigned, and the relative priorities of different boards are matters of

intense debate. There have been instances where designations of cases as

lead or “pilot” claims cannot be agreed to for political reasons, or to avoid

liability for many claims at once, or to give up the “second bite at the apple”

that multiple identical or similar cases may afford.

Unlike the vast majority

of negotiated dispute resolution processes outside the railroad industry,

section 3 provides individual claimants the right to handle their own cases up

to and including arbitration (before the NRAB).

Railroad industry arbitration awards have not been readily available

in the past to anyone other than practitioners, who generally include in their

submissions awards favorable to their positions. The NMB Knowledge

Store, a research tool located on the NMB’s Website, is a free archive

available to practitioners, neutrals, and to the public. It contains over 100,000

documents in a searchable format, including section 3 arbitration awards

(coded by subject), interest and special arbitration awards, PEB reports and

recommendations, and collective bargaining agreements.

That availability

notwithstanding, independent research by neutrals handling cases is neither

expected nor appropriate.

The NMB reported at the September 2018 meeting of the National Association of Railroad

Referees (NARR) that the fiscal year ended with the funding of every case on the section 3

waiting list.

One Class 1 LR officer once said that if there were 400 identical claims, he had 400

opportunities to win!

NMB FY 2021 Congressional Budget Submission at 45.

Neutral Compensation

Neutrals who handle RLA section 3 cases do so as government

contractors. This reduces the cost of arbitration to the parties but subjects the

dispute resolution process to the vicissitudes of government bureaucracy and

funding. For instance, referee travel to hearing locations is often restricted

or prohibited for budgetary reasons. Cases assigned to referees and ready for

hearing and decision sometimes languish for months because the NMB does

not have the funds to allocate for them. Then, when funding becomes

available, many cases are funded at once and the parties and neutrals are

swamped by the resulting work.

Federal funding for the NMB’s activities, and by extension funding

for the section 3 process, has been largely stagnant for many years. In 1974

referees were paid a fee of $220 per day. That amount was increased to $300

dollars in the early 1990s. Until recently that level of compensation remained

fixed. In 2009 that daily rate, adjusted for inflation, would have been just

over $700.

Currently the NMB compensates neutrals on a case (time)

average equal to approximately two days at the former ($300) per diem rate.

The case compensation covers all services in connection with the award,

including research and writing. The irregularity and unpredictability of

NMB funding (unapproved federal budgets, continuing resolutions allocating

partial funding, and general budget reductions) pose challenges to agency

operations and its ability to process rail arbitration cases.

Some NAA members accept section 3 assignments, but the

administrative complications and low rates of compensation discourage such

participation, as do the industry’s unique nomenclature and rules, and the

appellate nature of the process, as discussed below.

Neutral Development, Utilization, and Training

Rail industry neutrals have always been a mix of industry

professionals and those who come in from outside, including from the

Academy. Getting established as a railroad arbitrator is difficult for those not

from the industry, due to its unique procedures, customs, terminology,

contract language, and work practices. The labor relations environment is

highly charged and minor disputes can be of great importance and sensitivity.

Some cases are extremely technical and the on-property records, prehearing

submissions, and presentations vary widely in quality. The tripartite process

allows for blistering dissents, and both parties make use of blacklists of

arbitrators who issue awards that displease them. There has been a high

turnover of neutrals and high wash-out rates among those who seek to

become railroad arbitrators.

The parties have recognized the need for a steady supply of new

arbitrators and have been increasingly proactive in identifying potential

arbitrators and providing them with training and opportunities. They have

The NMB established time limits for the handling and writing of section 3 cases. This was

done to discourage the parties’ practice of “parking” cases (filing but not pursuing them), and to

discourage the practice of some neutrals to “sit” on cases for long periods, in the worst examples,

three to five years.

Statistics presented in a panel report at the September 2009 annual meeting of the NARR

(unpublished).

started to provide joint training for prospective or new neutrals and to provide

opportunities to hear and decide cases. In the past ten years or so, the NMB

and parties have made efforts to find and train female and minority

arbitrators. In 2015 the NMB sponsored the Arbitrator Utilization Program,

a course aimed at providing training and education to current or prospective

labor arbitrators with minimal experience in the railroad industry. The NAA

provided instructors for the program. The training program was well received

in the industry and brought together experienced railroad referees, rail

carriers, and rail labor organizations to develop and implement the

training. Many of the arbitrators who participated in the training have

subsequently been selected for railroad cases.

Railroad Industry Dispute Resolution Processes

Section 3 Discipline Cases

Section 3 requires that railroad employees subject to discipline

receive a fair and impartial hearing. That said, discipline originates with a

notice to the employee to attend an investigatory hearing, which is held

before a carrier official sitting as the investigating officer. The officer

conducts the hearing, receives testimony and documents, asks questions, and

hears arguments. The carrier officers conducting the hearings are generally

line managers who hear cases only part-time and the quality and objectivity

of hearings varies widely. The employee is represented by a local officer of

the organization. The quality of advocacy varies. In the hearing, the carrier

and organization present witnesses and documents. The hearing officer

makes evidentiary rulings and credibility determinations. A transcript of the

hearing of witness testimony is prepared. Hearings before partisan and

generally untrained officers usually turn out as would be expected. The

carrier makes a determination based on the hearing record as to what rules

were violated, whether to discipline, and how severe a penalty to assess.

Some carriers allow employees to accept discipline and receive a reduced or

“record” (no loss of pay) suspension, but the offer and acceptance of such

reduced penalties generally rests with the carrier. The efficacy of the

investigation and discipline process is low.

If the organization (or an individual claimant) is not satisfied with

the discipline assessed, it can submit an. appeal to the carrier. If the parties

are unable to resolve the dispute on the property, the organization (or

claimant) can invoke arbitration, ordinarily to the NRAB or to a PLB with

jurisdiction. All claims by unrepresented employees are docketed with the

NRAB. Arbitration proceedings in the industry are, with only certain minor

exceptions, appellate in nature. The arbitration proceeding usually takes place

before a tripartite board consisting of a single neutral and one partisan

arbitrator appointed by each party. The party-appointed arbitrators do not, as

a practical matter, give up their advocate roles, but do help to safeguard the

process. The parties submit advance written briefs to the tribunal based on

the on-property record. No new evidence or argument may be considered.

Precedent requires that credibility determinations made by the carrier-

appointed hearing officers are to be credited. Only the most blatant instances

NMB Press Release, April 1, 2020.

of partiality by the on-property hearing officer constitute grounds to overturn

the discipline.

The burden of proving cause for discipline rests with the carrier but

the quantum of proof required is “substantial credible evidence considered on

the record as a whole.” “Substantial evidence” is defined as evidence on

which the trier of fact could reasonably base a decision, even if a de novo

determination by a different tribunal might have had a different result.

other words, the carrier need not prove cause for discipline by even a

preponderance of the evidence. The process produces rough justice at best.

Since 1991 the Federal Railroad Administration (FRA) has required

railroads to certify to the agency that their locomotive engineers have the

necessary training, skills, and operating rule knowledge to perform their jobs

competently.

In 2011 the FRA required railroads to certify their

conductors in much the same manner.

Along with the certification

requirements, FRA created a process whereby railroads must suspend or

disqualify certified employees for violating certain types of operating rules.

Railroads may also initiate disciplinary action based on the conduct, thereby

creating two parallel proceedings involving the same offense and usually

based upon the same company-level hearing record. The interrelationship of

these two separate proceedings can be problematic for arbitrators hearing

railroad discipline cases.

Rules (Contract Interpretation) Cases

Claims of contract violations (termed in the industry “rules cases,”

a “rule” in this context being a provision of a governing agreement) are also

presented in arbitration on a written record. However, such cases do not

include an on-property investigatory hearing. A claim of a rules violation is

initiated by a written protest submitted to the carrier. The claim may be

supported by documentation such as agreements, prior awards, and

settlements, by affidavits, and by other evidence. The carrier responds in

similar fashion. Denials place assertions in dispute. Specific authorities in

support of an assertion trump general and conclusory denials. Evidence is

produced and exchanged in the forms of affidavits, prior correspondence,

precedential settlements, and so on. On the basis of the exchange, the parties

attempt to resolve the dispute. If those efforts are not successful, the record,

consisting of all the assertions and documents produced and arguments made

as the claim progressed, is presented to the arbitration tribunal for

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (applying § 10(3) of the National

Labor Relations Act).

49 CFR Part 240.

49 CFR Part 242.

A multi-stage appeal process, including a due process hearing pursuant to the Rules of Civil

Procedure. is provided in 49 CFR § 240.401 et seq.

It is possible in these cases, especially with respect to contractual due process issues, that an

arbitrator could come to a different decision from the FRA. For instance, the FRA does not

consider some procedural defects, such as contractual time limits, if it concludes public policy

is not served by considering them. It is also possible in such cases that a favorable award in a

discipline case must take into account in fashioning a just cause remedy a concurrent

decertification period imposed by the FRA, during which the employee is prohibited from

working in a certified position on the railroad. For a comprehensive explanation of this issue,

see John La Rocco & Richard Radek, “The Dilemma of Locomotive Engineer Certification Vis-

à-vis Contractual Due Process in Discipline Cases,” 40 Transp. L.J. 81 (2013).

consideration. Again, no new evidence or argument may be considered in

such cases. The burden of proving a rules violation rests with the

organization, which must establish the violation by a preponderance of the

evidence.

Labor Protective Provision Arbitrations

The Surface Transportation Board (STB) is an independent federal

agency charged with the economic regulation of the freight railroads. It

succeeded the Interstate Commerce Commission. The STB maintains

economic oversight of the industry’s business dealings and has jurisdiction

over railroad mergers, takeovers, coordination, and abandonments.

Historically, regulatory approval for operational changes resulting from such

actions by or between railroads has been required. Such regulatory approvals

have historically been subject to agreements between involved carriers and

organizations representing affected employees to provide them various types

of job protections from consequences of the transaction. Disputes involving

the application of these labor protective provisions (LPPs) are made subject

to arbitration. The neutrals in such disputes serve as STB delegees. They are

selected and paid by the parties, not as part of the section 3 minor disputes

process.

Major (Bargaining) Disputes

The procedures for resolution of bargaining disputes are provided

for in section 6 of the RLA. Disputes concerning bargaining are termed

“major disputes.” The parties are obligated to bargain with respect to the

terms and conditions of employment. The statutory purpose of section 6 is

to avoid interruptions of commerce by providing successive mechanisms to

encourage resolution of disputes and by making strikes and lockouts difficult.

Unlike other collective bargaining processes that generally produce

agreements expiring at the end of defined periods of time, RLA agreements

do not expire but become “amendable” after a period of time agreed between

the parties in the agreement. New agreement terms are layered over prior

agreements, including those negotiated between predecessor parties, that

continue in force and effect until modified or rescinded. When an agreement

becomes amendable, the parties can initiate bargaining by filing or

exchanging “Section 6 Notices.” These notices list the contractual changes

the parties are seeking.

The freight rail industry’s labor negotiations have been conducted

on a national, multiemployer basis, coordinated through the National

Carriers' Conference Committee (NCCC) of the National Railway Labor

Conference (NRLC). The employees are represented by 12 major rail

organizations, which had been coordinated through the Railway Labor

Executives Association (RLEA) and, more recently, in smaller, shifting

coalitions. Major carriers and organizations have engaged in multiemployer

multi-organization “rounds” or cycles of bargaining; on a national basis, a

process called “national handling.” The parties bargain separately but in a

coordinated fashion on a craft basis, with a goal of reaching one or more

national agreements that are then used as a pattern for organizations

representing other crafts and classes. Sometimes a carrier or organization (or

several) will break away and negotiate separately. Carriers and organizations

also negotiate system or local agreements, both during bargaining rounds and

separately, in the form of side agreements. The jockeying for position can

produce unintended consequences. In the 2020 bargaining round, the NCCC

was denied the right to represent all carriers in a single arbitration case on the

important issue of crew consist and forced separate carrier-by-carrier

arbitration.

The bargaining structure described above prevailed for decades.

More recently, owing in large part to the parade of mergers drastically

reducing the number of carriers, the effect of newer technologies, the decline

of passenger trains, the creation of Amtrak, and mergers of rail labor

organizations, to name only a few, “national” handling has been reduced from

its former scope and importance and sometimes involves only one or two

carriers or only some of the labor organizations and sometimes only a single

issue. The (very large) remaining carriers (and their represented employees)

have found advantages in making “system” agreements tailored to that

carrier’s business and service characteristics. Examples of this approach can

be seen in the Canadian National’s “hourly-rated” agreements with its

operating crafts, and the profit-sharing or productivity incentive agreements

on Norfolk Southern. Amtrak has entirely revamped the passenger service

working rules and pay provisions of the former Class I passenger service

agreements. As a general matter, the approximately 80 smaller carriers adopt

the terms. The last vestiges of national bargaining are pay rates – which are

handled nationally unless one of the large carriers reaches agreement, in

which case the NCCC has adopted the agreed rate – and “health and welfare,”

which includes issues of medical, dental, vision, and hospitalization benefits.

There may never be a return to broader national handling because the interests

of the parties have become too dissimilar.

The parties to negotiations may pursue direct bargaining, without

the participation of outsiders, for as long as it as mutually beneficial. Direct

bargaining concludes when the parties reach agreement, either side

unequivocally terminates negotiations, a party requests mediation under the

auspices of the NMB, or the agency proffers mediation. At such time as

negotiations enter into the mediation phase, NMB assumes control of the

schedule, location, and format of negotiations. The NMB’s goal is to

facilitate a mutually acceptable agreement by the parties, using its “best

efforts.”

The rights of labor organizations to strike and carriers to lock out

over bargaining disputes are restricted by the RLA. Bargaining that is not

successful is followed by mediation by the NMB. Economic action (strikes

and lockouts) is not allowed during bargaining and is only available after the

NMB releases the parties from mediation and the statutory cooling-off

periods are exhausted. There is no prescribed timeline for the mediation

process. While a party or parties can request that the NMB release them from

mediation, the NMB has no obligation to do so. The courts have upheld

NMB’s effective total control over the decision whether and when – if at all,

even after years of negotiations and mediation – to release the parties.

NMB mediators use control over that release to extract bargaining

concessions, particularly from the party most seeking release. Indeed,

negotiations may languish for years without release. As time passes

circumstances change and pressures build on one or both parties. If sufficient

pressure builds, the parties may reach agreement. Resolution validates the

process, the purpose of which is, as indicated, to avoid interruptions to

commerce that would otherwise occur.

When the NMB determines that a collective-bargaining dispute

cannot be resolved in mediation, the agency proffers interest arbitration to the

parties. Either labor or management may refuse the offer and, after a 30-day

cooling-off period, engage in a strike, implement new contract terms, or

engage in other types of economic self-help, unless a Presidential Emergency

Board (PEB) is established. The parties are also free at any time during their

bargaining to agree to binding arbitration.

If both parties agree, the

arbitration board’s award will be final and binding. There are advantages to

the parties in arbitration.

The willingness of the parties to use interest

arbitration may be increasing. In 2014 national bargaining commenced

between the national freight railroads and the various rail organizations. By

late 2017, most of the unions had settled, creating what was arguably a

national pattern of settlement. Several of the unions, however, did not reach

agreement or the agreements were not ratified. Four unions ultimately

submitted their disputes to final and binding arbitration, resulting in three

arbitration board decisions, issued by Gilbert Vernon (BMWED and

SMART-Mechanical), Joshua Javits (IBEW), and Charlotte Gold (IAM).

Each board found and applied the pattern contract terms. Arbitration can be

a useful mechanism to resolve negotiations in which ratification has failed or

is threatened, as arbitration awards generally do not require ratification to be

effective.

Throughout the negotiation process prescribed by the RLA, there

are up to three cooling-off periods. These 30-day windows provide additional

time for parties to reach an agreement before disruptive “self-help” tactics

are permitted. If the NMB determines, pursuant to section 10 of the Act,

that the bargaining dispute threatens to interrupt interstate commerce to a

degree that will deprive any section of the country of essential transportation

service, it will notify the President of the United States. He can then choose

to appoint a PEB to investigate and report on the dispute. When faced with

Interminable delays are not inevitable. See, e.g., Carmen R. Parcelli & N. Skelly Harper,

“Major Disputes under the Railway Labor Act: How to Expedite the Act’s ‘Almost Interminable’

Negotiation Process” (paper at ABA’s Sixth Annual Section of Labor and Employment Law

Conference in Atlanta in 2012).

In the 2016 round of negotiations by way of example, the railroads and the Brotherhood of

Maintenance Way Employees (BMWE) and the Sheet Metal, Air, Rail and Transportation

Workers (SMART – Mechanical) reached agreement on all issues except for health care. They

resolved that issue through arbitration.

As the Brotherhood of Maintenance of Way Employees Division of the Teamsters Union

(BMWED) explained to its members in 2018, such mechanism “… avoid[s] the uncertainty that

would encompass a [PEB] and possible Congressional intervention. … using binding arbitration

allows our unions to have input in the process (arbitration selection, questions presented and

presentation of evidence and argument that a PEB would not have afforded us).” 127 BMWED

Journal, Jan.-Mar. 2018.

45 U.S.C. § 160 (2018).

stoppage threats in major freight rail bargaining, the President typically does

so. Unlike the Taft-Hartley Act,

the RLA does not prohibit PEBs from

making recommendations to resolve the dispute.

Issues vary between bargaining rounds and from carrier to carrier

and craft to craft. However, major issues consistently raised in bargaining and

before PEBs have been compensation, scheduling, crew size, work rules, and

health insurance. Several PEBs have been appointed to address commuter rail

bargaining impasses. Over the past 15 years, there have been 11 PEBs

involving seven different labor disputes. Additionally, four disputes led to

the formation of second PEBs in accordance with the section 9a process

applicable to commuter rails.

PEBs are generally comprised of labor relations neutrals –

frequently NAA Members

– who investigate the dispute, undertake

informal settlement efforts, and issue a report and recommendations to the

President of the United States. When a PEB is appointed, hearings are

scheduled and conducted. Positions are received and informal meetings are

held, including discussions to attempt to resolve or narrow the dispute. The

statute allows 30 days, start to finish, for completion of the PEB process and

submission of the board’s report and recommendations. Status-quo

conditions must be maintained throughout the period that the PEB is

impaneled and for 30 days following the PEB report to the President. The

report that emerges is a combination of award and mediated effort, sometimes

incorporating off-record concessions by the parties. The PEB process may

resolve the dispute, or otherwise bring the parties closer to resolution.

Following the issuance of the PEB’s report, negotiations enter a

final 30-day cooling-off period under the RLA. The parties may accept the

PEB’s recommendations as terms of settlement, thereby ending the dispute.

If no agreement is reached, and there is no intervention by Congress, the

parties are free to engage in self-help 30 days after the PEB report to the

President. If PEB settlement efforts are unsuccessful, its report is not

accepted by the parties to resolve the bargaining dispute, or the parties do not

resolve the dispute during the final cooling-off period, the parties may, in

theory, take economic action in the form of strikes or lockouts. Since the

enactment of the RLA, most national freight rail negotiations have been

resolved without any service interruptions. However, in rare instances when

the parties have not reached an agreement before exhaustion of the RLA

dispute-resolution process, Congress has stepped in to prevent or terminate

service disruptions. Past congressional measures have included additional

cooling-off periods to continue negotiations, implementation of PEB

recommendations, and compelled arbitration.

Section 9a of the RLA

provides special, multi-step emergency

board procedures for unresolved disputes affecting employees on publicly

29 U.S.C. § 176 (2018).

Over the past 25 years, the following NAA members have served on one or more PEBs:

Richard I. Bloch, Scott E. Buchheit, Shyam Das, Barbara C. Deinhardt, Gladys Gershenfeld,

Roberta Golick, Robert O. Harris, William P. Hobgood, Ira Jaffe, Joshua Javits, Richard Kasher,

Ann S. Kenis, Herbert L. Marx, Jr., Donna R. McLean, Richard Mittenthal, Elizabeth Neumeier,

Robert M. O’Brien, Nancy Peace, Robert E. Peterson, Lois A. Rappaport, George S. Roukis,

Josef P. Sirefman, David P. Twomey, Rolf Valtin, M. David Vaughn, Gilbert Vernon, Bonnie

Siber Weinstock, Elizabeth C. Wesman, Helen Witt, Arnold Zack, and Barbara Zausner.

45 U.S.C. §159(a) (2018).

funded and operated commuter railroads. When bilateral bargaining does not

resolve the dispute, NMB may intervene to provide mediation. When

mediation is exhausted, the parties to the dispute or the governor of any state

where the railroad operates may request that the President establish a PEB.

The President is required to establish such a board if requested. If no

settlement is reached within 60 days following the creation of the PEB, the

NMB is required to conduct a public hearing on the dispute. If there is no

settlement within 120 days after the creation of the PEB, any party or the

governor of any affected state may request a second, final-offer PEB. No

self-help is permitted pending the exhaustion of these emergency procedures.

Pattern Bargaining

In analyzing disputes, both interest arbitrators and PEBs look for

and apply terms from so-called “pattern” agreements that became accepted

comparators relatively early under the RLA. Under the "pattern" analysis

deference is accorded to the settlements reached between other labor

organizations or other carriers. When a pattern is determined to exist, it will

be influential if not determinative in the analysis and recommendations of the

tribunal. However, significant settlements may be reached in the same round

of negotiations that might not be accepted as a "pattern" but may still be

considered and may influence the analysis and recommendations of PEBs.

By the mid-1950s pattern bargaining, along with other factors, was

credited with the decrease in the labor disputes going to PEBs and in the

reduction in strikes. The principle was so accepted before PEB 116 in 1957

that testimony as to the importance of the pattern was not even challenged.

Today pattern bargaining addresses industry-wide bargaining with multiple

labor organizations, as well as bargaining between one carrier and its multiple

labor organizations. Patterns may also be found within industry sectors, such

as commuter rail operations, which may include commuter rail operations

that are part of larger mass transit authorities with non-RLA operating units.

Two different pattern agreements exist: internal, which pertain to

agreements between one carrier and one or some of its labor organizations,

and external patterns, which pertain to agreements between other carriers and

their labor organizations. Patterns developed on other carriers may be

considered informative but might not be controlling on the settlements of a

different carrier. In such cases there generally is deference to an "internal

pattern" of a particular carrier. However, there is at least one instance where

an external pattern was deemed appropriate when there was an internal

pattern. When there is no internal pattern, the asserted external pattern may

still not be controlling. The facts of the specific cases as well as the

bargaining history are extremely important in the analysis.

Although the early rationale for patterns focused on settlements

involving large percentages of the represented employees that had settled,

significant settlements representing smaller percentages of employees, when

there is no determination of a pattern, may be taken into consideration by a

PEB when circumstances are deemed appropriate. To this effect are PEBs

220, 221, 222, 228, 229, 230, 234, 243, 244, and 248. Even when there is a

determination of a pattern by a PEB, in limited instances exceptions have

been made when supported by compelling arguments that warranted altering

the pattern's application for those seeking such an exception. PEBs 204, 225,

231, 237, 242, and 246. A recurring and dominant factor in support of

patterns is the destabilizing effect of not applying patterns. PEBs 116, 220,

222, 242, and 243. In a larger sense, the threat of having a bargaining dispute

subsumed and a pattern from other carriers or organizations imposed can

motivate parties to resolve their disputes on their own terms.

While various rationales are given to support patterns, a frequent

explanation has been based on the "combined judgments" of the union and

management officials that formed the pattern settlement. PEB 116. When the

settlements advanced as a pattern include settlements established by awards,

or other third-party determinations, and not by voluntary agreements, the

settlements may not be characterized as patterns, but may nevertheless be

given substantial weight in the PEB's recommendations. PEBs 220, 222, 228,

229, 230, and 234. While greater weight may be given to internal patterns

over external patterns, exceptions have been made to an internal pattern and

an external pattern applied in some cases. PEB 225. In assessing the

application of patterns to commuter rail operations, a PEB’s determination

that relatively large non-rail agreements are included as a component part of

an overall transit authority’s economic pattern has been an element of the

recommendations, PEBs 231, 237, 240, and 246, even when that position is

not asserted by the carrier. PEB 244.

Determination of Disputes as “Major” or “Minor”

The RLA provides, in section 3, for the adjustment of claims (minor

disputes). Courts, frequently at the urging of management, prefer to classify

disputes under section 3 of the Act, to be resolved in arbitration, rather than

the cumbersome section 6 major dispute process, with its risk of work

stoppages and economic disruptions. The analysis is easily seen in two signal

Supreme Court decisions.

In Chicago River

the Trainmen were unsuccessful in resolving a

group of grievances, and then notified the Carrier that if it did not move to

resolve them, a strike would be called. The railroad petitioned the district

court to issue a permanent injunction on the basis that the Union could not

strike over grievances but had to progress them to the NRAB. The Supreme

Court held that the resolution of minor disputes (grievances) was within the

exclusive jurisdiction of the NRAB. Disputes then arose between the parties

as to what particular grievances rose to the level of a change in working

conditions, thereby triggering section 6 (major disputes). In Conrail

the

Court had to decide whether the addition of a urinalysis screen for illicit drugs

during a routine periodic or return-to-work physical examination constituted

a change of working conditions, and thus a major dispute. The Court found

the dispute was minor, stating:

Where a carrier asserts a contractual right to take

a contested action, the ensuing dispute is minor if the action

is arguably justified by the terms of the parties’ collective

bargaining agreement. Only if the employer’s claims are

Railroad Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30 (1957).

Conrail v. RLEA, 491 U.S. 299 (1989).

100

frivolous or obviously insubstantial, the dispute is major.

Such classification is ultimately decided in court.

Thus the standard applied to the determination that a dispute is

minor is extremely low. All that is necessary is an argument, not entirely

frivolous, that the action is justified under the governing agreement. This

standard has been applied by special boards of adjustment (SBAs) or public

law boards (PLBs) to disputes involving the implementation of remote

controlled locomotives supplanting locomotive engineers, the administration

of indiscriminate or random drug and alcohol tests, craft-related pay

differentials affected by crew size reduction agreements, and many other

issues that, but for the “not entirely frivolous” standard, would seemingly

constitute changes of working conditions, and therefore be classified as major

disputes.

It is increasingly rare to encounter a dispute that cannot be found

to be minor. That means that while most section 3 disputes are in fact minor,

many disputes important to the parties and appropriate to the bargaining

process are handled under section 3. Thus SBAs, PLBs, and the NRAB are

tasked to decide issues with significant policy, economic, and practical

effects.

In Railroad Signalmen

a district court found that a dispute was

minor because Amtrak's decision to assign work in a specific building to

nonunion employees was "arguably justified" by the collective bargaining

agreement, divesting the court of jurisdiction over the case. The court

concluded that the company's position was not a frivolous or insubstantial

reading of the CBA, making the dispute minor and providing exclusive

arbitral jurisdiction over the dispute.

In February 2020 a group of eight railroads asked a federal district

court to require SMART-TD, which represents railroad conductors, to

bargain over its proposals on crew consist. SMART-TD took the position that

it would be inappropriate for crew consist issues to be handled nationally, and

that a moratorium provision prevented new proposals on the subject of crew

size. The court issued a permanent injunction enjoining SMART-TD from

refusing to bargain over the railroads' proposals.

The railroads had sought

a declaratory judgment and injunctive relief. The court noted that "injunctive

relief here does not permit an immediate reduction of crew size, but merely

compels SMART-TD to begin good-faith negotiating over crew size

proposals."

Further, the court considered the parties' arguments concerning

the moratorium language and found "the Railroads have met the 'relatively

light burden' necessary to show that their interpretations of the CBAs are

arguably justified such that the instant dispute is a minor one."

The

Organization’s appeal was pending as of this writing.

The distortion of the dispute resolution process in consequence of

the low bar to classifying important bargaining issues as minor is illustrated

by the dispute as to which craft would be assigned the work of operating

Id. at 307.

See, e.g., SBA 1141 (2002) (remote-control locomotive technology); SBA BLE v. UP (1993)

(pay differentials); SBA 1058 Award 1 (1993) (engineers’ seniority standing).

R.R. Signalmen v. Nat'l R.R. Passenger Corp., 310 F. Supp. 3d 131 (D.D.C. 2018).

BNSF Ry. v. SMART-TD, Civil Action No. 4:19-cv-00789-P (N.D. Tex. Feb. 11, 2020).

Id. at 19.

Id. at 15.

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locomotives using remote-control devices. On September 26, 2001, six

carriers (BNSF, Conrail, CSX, KCS, NS and UP) signed a letter of intent with

the UTU stating that UTU-represented employees, i.e., trainmen, would be

assigned that work. Needless to say, the industry-wide implications of such

an assignment were enormous. The Brotherhood of Locomotive Engineers

(BLE), believing its engineers had exclusive jurisdiction over the work of

operating locomotives, responded to the letter of intent by threatening to

strike. The carriers petitioned the federal district court to enjoin the strike.

On January 14, 2002, the court, relying upon the Conrail v. RLEA standard,

ruled it would grant the injunction, stating:

The court is not deciding whether the railroads’

plan to implement the new technology is justified by its

agreements with the BLE. The court is merely deciding

whether the Railroads’ argument that the parties’

agreement justifies its plan is “not frivolous or obviously

insubstantial.”…

This court stresses that it is in no way agreeing

with the Railroads’ interpretation of the collective

bargaining agreements; in fact, it is arguable that

locomotive engineers should have exclusive control over

operation of the remote-control transmitters. However, the

court need not make this determination. “The resolution of

the case depends upon the interpretation of the agreement,

and while we realize that the [Railroads’] actions might be

in violation of that agreement, it is for the appropriate

adjustment board, and not this court, to draw the

boundaries of the practices allowed by the agreement.”

[Citations omitted.]

Subsequently, as directed by the court, SBA 1141 was established.

Arbitrator Gil Vernon was selected to chair the board. UTU requested and

was granted party status. After hearings, the board ruled in favor of the

carriers and the UTU.

Rather than see the remote-control device as a set of

controls by which an employee operated a locomotive, the board accepted the

carriers’ argument that the remote control device merely sent radio

commands to the locomotive where microprocessors actually controlled the

locomotive.

And while the BLE argued that existing rules included control

of locomotives within the scope of engineers’ duties, the board noted that the

BLE had jurisdictional rights to remote control operations of locomotives. It

reasoned, if the Organization believed it already had the right to the work, the

Organization would not have sought to bargain for it. Thus BLE, in the

arbitrator’s view, did not have exclusive jurisdiction of the remote-control

operations, leaving the carriers free to assign it to trainmen. The case is

illustrative of the propensity of the courts to direct virtually every dispute,

including those with significant industry-wide impact, to section 3

BNSF Ry. v. BLE, 2002 WL 47963 (N.D. Il. Jan. 14, 2002).

SBA 1141 (2003), http://etnsplace.com/758/stuff/sba1141.htm.

This point of view was not shared by the Federal Railroad Administration, as made evident by

its inclusion of remote-control operators under the federal regulations applicable to locomotive

engineers (49 CFR Part 240).

102

arbitration, and in so doing to avoid potential interruptions of interstate

commerce.

National Academy of Arbitrators and Its Members

Academy members serve as members of the NMB, members of

PEBs, and as neutrals in railroad industry disputes. Academy members also

provide training and mentoring to new arbitrators, both independently and

through NMB and party-sponsored training. In recent years, the NAA has

included railroad industry-specific topics on its annual meeting and fall

educational conference programs.

The Academy’s recognition of railroad industry awards as counting

toward membership has evolved over time. Prior to 2009 the Academy’s

general membership policy and practice did not allow arbitration decisions in

the railroad industry to be included in the evaluation whether an application

demonstrates “substantial and current experience so as to reflect general

acceptability.” The thinking was that railroad industry cases are small in

scope and appellate in nature and did not equate to experience in conducting

hearings and assessing evidence and credibility. A number of Academy

members, including Gil Vernon, Herbert Marx, and Barry Simon, sought to

have the Academy credit railroad cases toward membership.

Following the report of the Academy’s New Directions Committee,

the June 2008 amendments to the bylaws and the associated changes in

NAA’s membership policy, which allowed limited credit toward the

threshold for consideration of certain workplace dispute decisions, the

Academy established a Special Committee on Railroad Arbitration and

Membership Policy. The committee was chaired by Gil Vernon and included

Simon and Marx, as well as Margery Gootnick, Roberta Golick, and Margaret

ogan. Based on the committee’s report, the Academy’s policy as to

railroad decisions was changed. The Academy now treats those cases in th

w but limited workplace decision category. Board policy was changed to

consider each certificate of appointment to a section 3 tribunal (NRAB, SBA

or PLB) issued by the National Mediation Board (indicating it was based on

a s

election by the parties or “partisan members”), as well as LPP (labor

protective provisions) and “parties pay” cases, when accompanied by an

issued and adopted award, count as a workplace dispute resolution decision.

National Association of Railroad Referees

Based on perceived unmet need and in part as a result of the

Academy’s earlier policies with respect to railroad industry arbitration and

minimal railroad-specific program topics, an industry-specific professional

organization, the National Association of Railroad Referees (NARR), was

founded in 1991. The NARR holds a conference every September in Chicago

that is attended by railroad management and labor representatives, NMB

members and staff, and railroad arbitrators. The annual conference provides

referees with education and professional development. The NARR’s first

seven presidents

and many of its members have been NAA members.

NARR presidents have been:

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Future of Dispute Resolution in the Railroad Industry

The future of dispute resolution in the railroad industry looks like a

continuation of past and present issues and trends. Issues in bargaining have

been predictable. By way of example, the major elements of the SMART-

TD’s 2019 section 6 notices include pay increases, allowances and

adjustments, paid sick leave, pay for training, scheduling adjustments to

increase rest and improve quality of life, and enhanced health and welfare

benefits. In short, labor’s bargaining demands are conventional and

predictable, a continuation and improvement of the terms and conditions of

employment for its existing work force and protection for the jobs and duties

threatened by technological and operational changes.

Management seeks more significant changes in basic terms and

conditions of employment. These include a change in crew consists to have

only a single person in the cab of locomotives, with the present second crew

member – the conductor – converted to a ground job.

Carriers also seek

work rules changes to give railroads greater flexibility in subcontracting in

non-core areas, to reform “provisions that restrict management discretion

over the assignment of work,” and to allow management greater “flexibility

over which crafts and employees may perform work, when such work may

be assigned and performed, and the duration such work may be performed.”

Railroad management wants, in addition, to relax arbitrary geographical

limits on work performed by train crews, allowing for greater flexibility to

timely deploy teams to critical projects and curtailing furlough protections.

Management further seeks to consolidate multiple legacy railroad contracts

within the same workgroup, reducing methods of payment calculation, and

accelerating when certain operational changes may be implemented. Finally,

management would like to change health and welfare benefits to reduce costs

through plan design changes and increases in employee premium sharing,

copay, and deductibles.

In addition to ongoing competitive and economic pressures, current

bargaining issues are driven by the industry’s desire to take full advantage of

the billions of dollars in investment in Positive Train Control (PTC), which

it contends make single member operating crews safe. Crew size and work

rule changes are also proposed by carriers to realize the full benefits of

precision scheduled railroading that has resulted in fewer workers being

employed for a given level of traffic.

Collective bargaining is a flexible process. Its application in the

railroad industry, using the RLA dispute resolution structure, is time tested.

While the issues described are difficult, the process has been made easier by

a leaner, more profitable industry and ever-increasing employee productivity.

1991 – 1994: Joseph A. Sickles, NAA Member

1995 – 1998: Herbert L. Marx, Jr., NAA Member

1998 – 2000: M. David Vaughn, NAA Member

2000 – 2004: Francis X. Quinn, NAA Member

2004 – 2006: M. David Vaughn, NAA Member

2006 – 2010: Barry E. Simon, NAA Member

2010 – 2014: Elizabeth C. Wesman, NAA Member

2014 – 2016: Joshua M. Javits, NAA Member

2018 – 2020: Joseph Cassidy

Information provided by the National Railway Labor Conference.

104

It is unlikely there will be any significant changes to the RLA provisions

applicable to the railroad industry or to the parties’ utilization of its dispute

resolution processes. If anything, the parties more recently have been

addressing their issues in bargaining, with less reliance on the PEB process.

Labor has demonstrated no interest in giving up publicly funded

grievance arbitration. Carriers favor the major dispute processes, as

compared with other possible alternatives. That process, while protracted,

virtually eliminates the use of strikes and lockouts. Arbitration is available

when bargaining does not resolve the dispute.

The benefit to the public has been and will continue to be stability,

with no interruption of rail transportation services, and the benefit to the rail

industry and its employees is sustainability. No pressure for legislative

change is likely. While no one in the industry would assert that the system

approaches perfection, no one has been able to devise an alternative

acceptable to all stakeholders to replace it. If adequate and reliable funding

is provided, the RLA dispute resolution process, including the significant role

played by Academy members and other neutrals, works well enough to

continue.

105

Chapter 6

THE NAA’S ROLE IN AIRLINE

LABOR-MANAGEMENT RELATIONS

Joshua M. Javits

Introduction

NAA: Fifty Years in the World of Work, the 1997 history of the first

half-century of the National Academy of Arbitrators, touched on the airline

industry only briefly and noted the impact of federal deregulation in the late

1970s.

Today the U.S. airline industry warrants a prominent position in the

NAA’s historical record in light of the volume, variety, and importance of

cases that NAA members handle.

In addition, this heavily unionized

industry has grown enormously and has a significant impact on the economy,

with airlines carrying 2.5 million passengers per day and aviation accounting

for more than 5 percent of gross domestic product.

The NAA, as an institution and through its members, has played an

essential role in the cyclical and unpredictable world of airline labor-

management relations during the last 25 years.

NAA members have been

instrumental in helping the parties through the major challenges in this

tumultuous industry. Moreover, they have been the nearly exclusive source

for neutrals in resolving day-to-day grievance arbitration disputes. NAA

members also have played a major role in facilitating discussions and needed

changes in collective bargaining throughout the period.

Gladys W. Gruenberg, Joyce M. Najita & Dennis R. Nolan, The National Academy of

Arbitrators: Fifty Years in the World of Work 171-72, 249 (1997). See Airline Deregulation Act

of 1978, Pub. L. No. 95-504, 92 Stat. 1705, codified as amended in different sections of 49

U.S.C. (2018).

The NAA has paid special attention to the airline industry at its annual meetings in recent years.

Moreover, the industry has been the subject of panels and of papers in the organization’s

proceedings. Airline industry panels comprised of advocates and neutrals have given well-

attended presentations at nearly every NAA annual meeting during the last 25 years. Several

sessions have dealt with issues stemming from airline mergers, including the negotiation of joint

collective bargaining agreements and the arbitration of seniority list integration. Topics have also

included system boards of adjustment, just cause, mediation, med-arb interest arbitration,

employee ownership interests in the 1990s, and the impact of 9/11. In addition, National

Mediation Board (NMB) chairs and members have presented on the agency’s operations and the

Railway Labor Act’s legal structure.

Airlines for America, Economic Impact of Commercial Aviation by State,

https://www.airlines.org/data/; Federal Aviation Administration, The Economic Impact of Civil

Aviation on the U.S. Economy, www.faa.gov.2016-economic-impact-report_FINAL. The

lessening of union penetration in the rest of the private sector also has heightened the industry’s

impact on U.S. labor relations.

Joshua Javits, Robert Harris, and Helen Witt were both NAA and NMB members. Other NAA

members affiliated with the NMB were Steven Crable (chief of staff), Dana Eischen (special

assistant to the chairman), Richard Kasher (general counsel), and Joyce Klein (legal counsel).

Former airline labor relations officials Mark Burdette, Paul Chapdelaine, Elizabeth Neumeier,

and Elliott Shaller became NAA members.

106

President Clinton established the Dunlop Commission on the Future

of Worker-Management Relations in 1993—so-named for NAA charter

member John Dunlop who chaired the Commission—to look into worker-

management relations and U.S. labor law and make recommendations for

reform. The Dunlop Commission found that railroad labor and management

jointly drafted the Railway Labor Act (RLA),

and these parties desired no

changes in the law.

This was in strong contrast to the many changes the

relevant parties sought in the National Labor Relations Act (NLRA).

The Dunlop Commission recommended that an Airline Industry

Labor-Management Committee be created—as well as a committee for the

railroad industry—to work with the parties to “make specific

recommendations for change which would improve the processes and

performance of collective bargaining in the resolution of ‘major’ and ‘minor’

disputes.”

The Airline Committee, co-chaired by NAA member and former

chairman of the National Mediation Board (NMB) Robert Harris, consulted

with the parties and submitted a report to the Departments of Labor and

Commerce in 1997. The NMB subsequently implemented the

recommendations.

In 2009 the NMB established a group comprised of representatives

of airline and railroad carriers and unions, called Dunlop 2,

which meets

several times a year with the agency to discuss issues of mutual concern. The

group reflects the ongoing history of the unions, carriers, and the NMB

working together on statutory and administrative issues.

Railway Labor Act

The Railway Labor Act is the legal framework that governs labor

relations in the airline industry. The law was enacted in 1926 as a result of

negotiations between labor leaders and railroad companies following the

failure of prior labor relations statutes to address the often violent disputes

between rail labor and management. The RLA’s primary objective was to

avoid interruptions in interstate commerce, including the transport of crucial

commodities such as coal and food. In 1936, as a result of lobbying efforts

by the Air Line Pilots Association (ALPA), amendments to the RLA

extended its coverage to the airline industry.

The RLA provides for comprehensive bargaining obligations

designed to ensure agreements are reached and transportation is maintained.

45 U.S.C. § 151 et seq. (2018).

The Dunlop Commission on the Future of Worker-Management Relations: Final Report 92-93

(Dec. 1, 1994) [hereinafter Dunlop Commission]. The Commission noted: “Unlike the National

Labor Relations Act, which was enacted through substantial labor-management and political

conflict, the 1926 Railway Labor Act was made law with the full agreement of railroad labor

and management…. These parties regard the Railway Labor Act as their creation, achieved

through a bi-partite process, and they are justly proud of their role in the enactment of the

statute.” Id. The RLA was later amended to include the airline industry after discussion with the

parties.

29 U.S.C. §§ 151–169 (2018).

Dunlop Commission, supra note 6, at 93.

Seth Rosen (airline unions), Robert DeLucia (airline management),Kenneth P. Gradia (rail

management), Joel Parker (rail unions), and Joshua Javits (facilitator) were the initial members

of Dunlop 2.

45 U.S.C. § 181 (2018).

107

These include direct negotiations between the parties,

followed by a period

of mediation by the NMB

; the proffer of interest arbitration, which is

engaged if both parties agree

; and the potential creation of a Presidential

Emergency Board (PEB).

The parties are required to maintain the status

quo throughout the multifaceted bargaining process.

Congressional

intervention in settling disputes is always possible, but such action is not part

of the RLA statutory process.

In addition, the RLA contains a representation election process

and a requirement for all carriers to create system boards of adjustment

(SBAs) to resolve grievances.

It provides for only narrow judicial review

of arbitration decisions and awards.

National Mediation Board Role and Roster

The National Mediation Board was created under the RLA to

administer the essential RLA provisions.

The NMB mediates the parties’

“major” disputes—defined as disputes about the modification of existing

agreements or the creation of new ones.

It has nearly unreviewable

authority to hold the parties in mediation until it deems mediation to be

unsuccessful.

Unlike the NLRA, unfair labor practice claims are under

court, not NMB, jurisdiction.

The NMB maintains a roster of neutral arbitrators. The neutral

arbitrators are used, for example, when airline parties request a strike panel

or request a single arbitrator to hear a dispute. Of course, the parties may

select an arbitrator who is not on the NMB roster.

All NAA members are automatically qualified to be on the NMB

roster under the agency’s rules.

If the arbitrator is not an NAA member, he

or she must have issued decisions in five cases, or have 10 years of

experience, in airline or railroad industry labor relations. Most airline

collective bargaining agreements require that arbitrators serving on

permanent panels, or those being chosen on an ad hoc basis, be NAA

members.

Id. § 152, Sixth.

Id. § 156.

Id. § 155 (b).

Id. § 160.

Id. § 156.

Id. § 152, Ninth. Interestingly, subordinate officials are first-level supervisors who would be

excluded from coverage under the NLRA but are covered under the RLA.

Id. § 184. Railroad arbitration is administered and paid for by the Federal Government through

the NMB. In contrast, the airlines’ arbitration scheme is a matter of negotiation so long as a

system board of adjustment is established.

Id. § 153(q). Grounds for review are failure to comply with the RLA, acts in excess of

jurisdiction, and fraud or corruption.

Id. § 154.

See Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723-24 (1945).

IAM v. NMB, 425 F. 2d 527, 537 (D.C. Cir. 1970), confirmed in IAM v. NMB, 930 F.2d 45

(D.C. Cir.), cert. denied, 502 U.S. 858 (1991).

NMB, Uniform Procedures for Placement and Retention on the National Mediation Board’s

Roster of Arbitrators (Mar. 11, 2009).

108

“Major” and “Minor” Disputes

In interpreting and applying the RLA, the courts have traditionally

categorized labor disputes involving collective bargaining as “major”

disputes or “minor disputes.” “Major” disputes concern the making or

changing of the collective bargaining agreement. “Minor” disputes involve

interpreting or applying the collective bargaining agreement.

In contrast to the detailed procedural requirements for arbitration

between the railroads and their unions,

or the legal requirements under the

National Labor Relations Act, the RLA as applied to arbitration in the airline

industry only dictates that the parties establish a system board of adjustment

to resolve grievances. The RLA does not dictate any other requirements, such

as the duty to provide information or engage in discovery as part of system

board procedures.

However, the parties may voluntarily agree to such

provisions in their collective bargaining agreements.

System Boards of Adjustment

System board rules and procedures are solely a creature of the

collective bargaining agreement. Courts have held that no duty exists to

create a system board of adjustment until the parties have a first binding

collective bargaining agreement.

System boards of adjustment are comprised of an equal number of

labor and management representatives, usually two or four partisans.”

These partisans sit with a neutral arbitrator if they cannot resolve the dispute

themselves at an earlier grievance step. Each SBA member has a single vote,

including the neutral.

The party members are helpful in three ways. First, they provide the

neutral with technical understanding of the issues (e.g., complex pilot

performance, qualification and scheduling issues). Second, they can, where

appropriate, act as conduits to the parties to facilitate settlement. Third, they

can help the neutral identify and weigh key evidence in light of their

knowledge of unique workplace realities.

See Elgin, supra note 20; Conrail v. RLEA, 491 U.S. 299 (1989).

Unlike railroad arbitration, for which the Federal Government compensates arbitrators, the

parties pay airline arbitrators. In addition, airline arbitration is a de novo procedure, not an

appellate one as with railroads. See supra ch. 5, M. David Vaughn, “The Academy and the

Railroad Industry.”

45 U.S.C. § 184 (2018) states: “It shall be the duty of every carrier and of its employees, acting

through their representatives, selected in accordance with the provisions of this [Title], to

establish a board of adjustment of jurisdiction not exceeding the jurisdiction which may be

lawfully exercised by system, group, or regional boards of adjustment, under the authority of

Section 153 of this Act.” See IAM v. Central Airlines, 372 U.S. 682 (1963).

ALPA v. Jetstream Int’l Airlines, 716 F. Supp. 203, 204 (D. Md. 1989).

System board members assigned by each party are sometimes referred to as “partisan neutrals,”

having some indicia of partisanship because they are chosen by one side only. Yet, they are also

able, if not necessarily expected, to use their independent judgment. To ensure their

independence, many collective bargaining agreements protect party SBA members from

retaliation based on their board activities.

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Interest Arbitration and Release by the NMB

Although most bargaining disputes are resolved in direct or

mediated negotiations, the parties have sometimes availed themselves of

interest arbitration. The RLA provides that after the NMB determines

mediation has been unsuccessful, the NMB will proffer arbitration to the

parties.

If both sides agree, the dispute is submitted to interest arbitration.

If not, the parties are released to use self-help. Although this dispute

resolution approach is relatively rare, when it is agreed to, NAA arbitrators

have been called on to conduct the interest arbitration. The RLA lays out

specific procedures for interest arbitration, but the parties may agree to their

own process.

If one of the parties rejects the proffer of arbitration, it is precluded,

and the parties are released to use self-help following a 30-day cooling-off

period. Self-help allows unions to strike. Management can then permanently

replace striking employees, lock out the particular work group, or unilaterally

impose contract terms so long as the subject matter has been negotiated.

Presidential Emergency Boards

At any time after release, the National Mediation Board can trigger

a Presidential Emergency Board by notifying the president of its finding that

a shutdown would have a substantial impact on the national or regional

economy.

Once notified, the president then has the discretion to create a

PEB. If created, the status quo must be maintained during which self-help is

prohibited for a 60-day period—30 days for the PEB to hold hearings and

issue a report to the president and another 30-day cooling-off period

thereafter.

Nearly all PEBs have three or five neutrals who are almost

always NAA members and are listed on the NMB roster.

Three PEBs were created in the airline industry from 1997 to 2001,

after a lapse of 31 years since the last prior airline PEB was established in

1966

• President Clinton created PEB 233 in 1997—with Robert

Harris, Anthony Sinicropi, and Helen Witt—after pilots

represented by the Air Line Pilots Association struck

American Airlines. The PEB did not issue a

recommendation because the parties reached an agreement

during its existence.

45 U.S.C. § 155 (b). Although the RLA lays out detailed procedures for interest arbitration,

the parties are free to establish their own process. In addition, the parties may mutually agree to

interest arbitration even before an NMB proffer.

Id. § 160. See

https://joshuajavits.com/sites/default/files/uploads/images/stories/SettlingAirlineDisputes.pdf.

A provision of the RLA applicable to commuter railroads calls for two PEBs on initiation of a

single party or the governor of an affected state.

See supra ch. 5, M. David Vaughn, "The

Academy and the Railroad Industry."

Increasing consolidation in the airline industry and rising passenger loads—prior to the

COVID-19 pandemic—are changing the dynamics for triggering a PEB. These developments

make PEBs more likely to avoid self-help, given the tremendous economic consequences of a

shutdown or even a threatened shutdown.

110

• In 2001 President Bush established PEB 235—with Helen

Witt, Robert Harris, and Richard Kasher—for a Northwest

Airlines (NWA)/Aircraft Mechanics Fraternal Association

(AMFA) dispute; the dispute was settled just before the

PEB issued its report.

• P

EB 236—with Helen Witt, Ira Jaffe, and David

Twomey—was established in a United

Airlines/International Association of Machinists (IAM)

dispute in 2001; an agreement was reached after the PEB

report was issued.

Where the parties have still not reached agreement after a PEB, they

again have the right to use self-help. Congress has sometimes stepped in to

legislate an end to the dispute in the public interest.

Not since prior to

deregulation in 1978 has Congress intervened in an airline dispute.

Strikes

The airlines are an essential industry, part of the vital infrastructure

undergirding the rest of the U.S. economy. The RLA contains built-in

processes that control the timing, frequency, and impact of shutdowns in the

public interest. The law’s mechanisms and purposes encourage settlements,

which provide stability and consistency to the industry. As a result, only four

strikes have occurred during the last 25 years:

• An NWA/ALPA strike over Labor Day weekend in 1998

was settled after a 13-day walkout.

• Pilots represented by ALPA struck Comair, a wholly

owned regional subsidiary of Delta, for 13 weeks in spring

2001 until finally reaching an agreement.

• An NWA/AMFA strike in 2005 began a month before

NWA went into bankruptcy; the parties never reached a

settlement.

• A four-day strike in 2010 ended when Spirit and ALPA

came to terms on a collective bargaining agreement.

Airline Industry Trends

The airline industry is heavily unionized; in 2019 unions represented

about 55 percent of the 740,000 employees. Three of the Big 4 airlines—

United Airlines, American Airlines, and Southwest Airlines, along with

Alaska Airlines—are between 80 and 85 percent organized. The rate of

unionization in the airline industry is still about eight times higher than the

average of 7 percent of private-sector U.S. workers.

The industry moves more than 2.5 million passengers per day in the

United States. It is extraordinarily affected by changing fuel prices,

It has done so by imposing the PEB report as the parties’ new collective bargaining agreement,

by ordering interest arbitrations, or by extending the status quo period. Congressional action is

not part of the RLA process. Congress had intervened in the past to end self-help, though almost

exclusively to end railroad strikes. The parties perceived congressional intervention as a real

possibility, so they felt pressured to reach agreement after a PEB—often on the basis of the PEB

report.

111

competition from low-cost carriers, and declines in air travel due to recession,

epidemics, and terrorism.

The cyclical economic sensitivity of the business, as well as the

impact of powerful nonrelated factors, lead to both serious clashes and

cooperative efforts between the carriers and their unions. NAA arbitrators are

regularly called on to help the parties deal with these externally and internally

generated challenges and contribute toward a more stable and predictable

environment.

Several developments and scenarios have been defining ones for the

airline industry:

1995-2000. The airline industry was consistently

profitable for the first time since full implementation of

deregulation in 1981; restrictions on market entry and fare

regulation were lifted in 1981.

2001. The U.S. economic downturn prior to 9/11

severely affected the industry, which was already projected

to lose $2 billion. The terrorist attack on September 11,

2001, caused the closure of U.S. airspace and the

grounding of aircraft for five days. Airlines attempted to

shrink to profitability, but the viability of existing airlines

was seriously questioned. The Federal Government made

loans to the industry to help it survive.

2001-2005. The industry sustained $35 billion in

losses because of reduced travel demand, intense

competition, high fuel prices, Middle East conflicts, and

security concerns that led to the creation of the

Transportation Security Administration. Major job losses

resulted, and voluntary concessions were sought through

restructuring agreements. NAA members were very

involved in helping the parties work through the issues that

arose. The carriers used force majeure clauses to escape

from contract restrictions on reductions in force. Despite

the parties’ efforts to negotiate concessions, many airlines

went into bankruptcy and used the bankruptcy law’s

contract rejection process to extract employee concessions.

Some employee pensions were terminated, with the

Pension Benefit Guaranty Corporation assuming control

and establishing sometimes lower ceilings on benefits.

2005-2011. Significant consolidations marked the

period 2005 to 2011. Nine major airlines in late 1990s

consolidated down to four mega carriers: Delta Air Lines,

United Airlines, American Airlines and Southwest

Airlines.

NAA arbitrators were deeply involved in the

parties reaching joint collective bargaining agreements

through interest arbitrations and through arbitrations to

determine how seniority lists would be integrated.

The Big Four resulted from these consolidations: US Airways/America West (2005); Delta

Air Lines/Northwest Airlines (2008); United Airlines/Continental Airlines (2010); Southwest

Airlines/AirTran Airways (2011); and American Airlines/US Airways (2013).

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2011-2020. The industry was consistently

profitable despite the impact of the Great Recession (2008-

2010). Unions were able to recoup many of the concessions

from the 2001–2010 period. Pattern bargaining, which

historically was practiced in the industry, intensified,

especially for pilots at the Big 4.

2020. The COVID-19 pandemic has reduced

passenger travel substantially. In addition, revenue has

been suddenly and vastly reduced. The long-term

implications of these reductions are not yet known.

Airline Industry Carriers

The airline industry is composed of several distinct business

groupings: major airlines, low-cost carriers, regional airlines, and air cargo

carriers.

Major Airlines

The Federal Aviation Administration defines a “major” carrier as

having more than $1 billion in revenue annually, and approximately 10

passenger airlines and two cargo carriers meet this definition. As a result of

industry consolidation between 2008 and 2013, four mega carriers emerged.

Delta Air Lines, United Airlines, American Airlines, and Southwest Airlines

now control more than 80 percent of airline passenger revenue and dominate

origin and destination flying. The six smaller major carriers—JetBlue,

Alaska, Hawaiian, Frontier, Allegiant and Spirit—each control less than 5

percent of the market. Just prior to the COVID-19 pandemic, approximately

2.5 million passengers per day flew in the United States. The concentration

of the industry brought a degree of stability in labor relations. In addition,

international flying has also become more coordinated with the development

of international airline alliances in the 1990s.

Low-Cost Carriers

Low-cost carriers (LCCs) tend to keep the ticket prices of the major

airlines lower than they would otherwise be. However, they do not have the

size of the Big 4 and, therefore, cannot provide the route coverage, trip

frequency, frequent flyer, and other perks that business travelers appreciate.

This is especially true of LCCs such as Allegiant, Frontier, Spirit, and Sun

Country that use low prices alone to attract price-sensitive leisure travelers

rather than business travelers, the source of profitability for the larger majors.

Ironically, the two most profitable and stable periods for the airlines, 1995 to 2000 and 2009

to 2019, were each brought to an abrupt and disastrous halt by unforeseen external events—9/11

and the COVID-19 pandemic, respectively. Just when the airlines begin to think they are

invulnerable, they have been rudely awakened by calamities not of their making. Other shocks,

if of less historic proportions, have always played a role in the industry and management’s

relations with its unions and employees.

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Regional Airlines

The major airlines operate narrow and wide-body aircraft from their

large hubs and other big cities as well as to and from international

destinations. However, they are fed passengers from small and midsized

markets serviced by regional airlines, which fly aircraft with 50 to 76 seats.

The regional airlines are either independently owned or wholly

owned by major airlines and code share with them. The major airlines handle

all the bookings using their own reservation system for the regional flights.

The flights appear to passengers as part of the major airline by virtue of the

use of the major’s reservations code as part of the flight numbers and their

nearly identical livery (paint job) and flight crew uniforms.

The regional carriers enter into capacity purchase agreements with

the majors, and this restricts their operations. They pay their employees far

less than the majors, but initial jobs are easier to come by with a regional

carrier than with a major carrier. Pilots, in particular, will build up their flying

hours with a regional so they are eligible for hire by a major airline.

The regional airline industry is not immune to consolidation.

Consolidation has occurred among regional airlines but is still less common

than among the major airlines.

Air Cargo Carriers

The air freight industry includes carriers such as FedEx, UPS, Atlas

Air, the growing Amazon Air and others that provide a critical service of

carrying freight nationally and internationally.

They are a vital link in the

global supply chain. The International Brotherhood of Teamsters (IBT)

represents many of the pilots at these freight carriers. Passenger airlines also

carry a great deal of freight in their cargo holds, which is a profitable aspect

of their business.

Airline Industry Labor Organizations

Labor organizations represent about 55 percent of industry workers,

including pilots, flight attendants, and ground employees (e.g., mechanics,

fleet service employees, and customer service agents).

Pilot Unions

The Air Line Pilots Association is the largest union representing

over 63,000 pilots at 34 carriers in Canada and the United States, including

Delta Air Lines, FedEx, and United Airlines. ALPA also represents many of

the regional airline pilots. The Allied Pilots Association (APA) represents

The 76-seat limit is dictated by scope clauses in the major airlines’ pilot contracts. These

clauses are collective bargaining agreement provisions that aim to protect the work of the pilots

at a major carrier by attempting to restrict the carrier’s ability to divert flying to lower-cost

airlines.

As a result of a pilot shortage, many regionals made agreements with their unions to pay

bonuses of $20,000 or more as well as pay for the extensive training required to be an airline

pilot. Captains are in especially short supply, and the majors are eager to poach these more

experienced pilots from the regionals. At least such was the case prior to the advent of the

COVID-19 pandemic.

Emery Air and DHL Aviation went out of business during this period.

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pilots at American Airlines, and the Southwest Airlines Pilots Association

(SWAPA) represents pilots at Southwest Airlines. The Independent Pilots

Association (IPA) represents UPS pilots. APA, SWAPA, and IPA are

independent unions. The Teamsters Union (IBT) represents the pilots at

several smaller cargo carriers and those of Allegiant, FlexJet, and other

carriers.

Flight Attendant Unions

The largest flight attendants union is the Association of Flight

Attendants (AFA), which represents flight attendants at Alaska Airlines,

United Airlines, and many regional airlines. The Transport Workers Union

(TWU) represents Southwest Airlines and JetBlue flight attendants, and the

Association of Professional Flight Attendants (APFA) represents American

Airlines (AA) flight attendants. IBT represents flight attendants at several

regional carriers.

Ground Employee Unions

The Machinists Union (IAM) represents mechanics and related

employees and fleet employees (baggage handlers, cleaners, etc.) at United

Airlines and other airlines. A TWU/IAM joint council represents American

Airlines mechanics and fleet workers. AMFA represents Southwest and

Alaska mechanics, and the IAM represents Southwest’s fleet employees.

NAA Member Roles in the Airline Industry

Airline arbitrators perform critical neutral activities in different

ways: traditional grievance arbitration, grievance mediation, interest

arbitration, med-arb, and service on Presidential Emergency Boards. They

have played an especially important role in the post 9/11 period—one marked

by bankruptcies and industry consolidation that resulted from multiple

enormous mergers and acquisitions. Arbitrations involving seniority list

integration, also a result of this industry consolidation, have been particularly

complex and contentious.

Nearly all airline collective bargaining agreements require

arbitrators to be members of the National Academy of Arbitrators; this

requirement reflects the industry’s recognition of the high standards tied to

NAA membership. The complexity and uniqueness of airline disputes place

special demands on neutrals, and the parties seek not only sophisticated

arbitrators but also those with experience in the industry.

When negotiating a “major” dispute relating to contract creation and

amendment, NMB mediators and members are normally directly involved.

However, on many occasions the parties agree to a med-arb or pure interest

arbitration process in which independent neutrals guide the process toward

reaching a collective bargaining agreement.

Several important cases arose from the many and various headwinds

facing the industry. Several resulted from the transformative emergence of

regional jets in the 1990s and the dire economic consequences of 9/11,

numerous bankruptcies and subsequent mergers and acquisitions. These

disruptions led to serious labor-management conflicts, which then brought

forth creative resolution processes handled by neutrals with expertise and

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sensitivity. The repeat use of a select group of NAA arbitrators is the surest

affirmation of their rising to the occasion. The COVID-19 pandemic may

similarly test the system and require use of NAA resources.

Interest Arbitration, PEBs, and Other Significant Cases

The period 1995 to 2020 has seen several major interest

arbitrations. These and other cases have tested the capabilities of airline

arbitrators and highlight NAA member roles in the airline industry.

American Airlines/Association of Professional Flight Attendants

Interest Arbitration (1993–1995). In late 1993, the NMB released AA flight

attendants, who then struck for five days just before the busy Thanksgiving

holiday. The carrier could not operate because it could not qualify new

replacement flight attendants until they had undergone federal aviation

regulation-mandated training. AA planes flew empty, resulting in enormous

losses. The impact of flight attendant training regulations, and their use by

APFA, thus greatly influenced the course of the strike and its subsequent

resolution.

The Clinton administration became involved, and AA agreed to

accept interest arbitration. Interest arbitration resulted in a binding

agreement; this solution was preferred over a PEB, which would have

allowed a second opportunity for self-help if both parties did not accept its

recommendations. The hearings continued for nine months before a panel of

seven arbitrators—four party representatives, NAA members Richard Kasher

and Geraldine Randall, and Chair Charles Resnick, a commercial arbitrator

who was not an NAA member. The panel’s decision was issued October 11,

1995, and the parties settled the dispute on the basis of the arbitration report.

American Eagle/Air Line Pilots Association Collective Bargaining

Agreement (1997–2013). In 1995 four regional air carriers wholly owned by

AMR Corporation, also the parent of AA, consolidated into a single carrier,

American Eagle. Two years later, labor and management agreed to a 16-year

framework agreement with a 2013 amendable date that allowed for several

expedited amendment rounds. The deal provided for an industry index that

was used to periodically adjust pilots’ pay rates. The parties used a formula

to calculate the average change in pay rates across the regional industry at

carriers not in bankruptcy, with a minimum increase guaranteed at 1.5%. That

minimum increase became important after 9/11, because all the comparator

carriers were dialing rates back while American Eagle was locked into

increases. The parties could also each bring five issues to the interim interest

arbitrations.

One such interest arbitration, which followed the defeat of the 2000

tentative agreement, used a panel of three arbitrators (Richard Bloch, Richard

Kasher, and George Nicolau). Of particular concern was the definition of an

“issue.” The carrier argued that the union was bundling multiple issues in

some of the five issues it raised in arbitration. The arbitration panel refrained

from awarding items that did not reflect patterns in the regional industry. The

future amendment rounds were successfully negotiated without resorting to

interest arbitration.

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American Airlines/Allied Pilots Association Presidential

Emergency Board and Flow-Through Agreement (1997). In 1997 APA struck

AA, and President Clinton created PEB 233 with Robert Harris, Anthony

Sinicropi, NAA former president, and Helen Witt. The PEB did not issue a

recommendation because the parties reached an agreement during its

existence. Harris was instrumental in mediating an agreement during

meetings on Orcas Island, Washington, in which Don Carty, chairman and

CEO of AMR Corp (the parent company of AA) participated.

After the PEB decision was prepared but not yet issued, Harris

moved the parties to agreement partly by expanding on a scope issue APA

initially raised in its proposal to perform all flying for the carrier. This would

include flying done by American Eagle, AMR Corp’s wholly owned regional

carrier.

The negotiation of a flow-through agreement

became a key

element in resolving matters before the PEB. The four parties to the flow-

through agreement were APA, AA, ALPA, and American Eagle. The Air

Line Pilots Association was also in negotiations with American Eagle at

about the same time.

Approximately 15 four-party flow-through arbitrations occurred,

some of which involved the rights of the furloughed AA pilots. Richard Bloch

made an important decision on the impact of the expiration date of the flow-

through agreement; the agreement had a 10-year duration, which ended in

2008.

Bloch ruled that the American Eagle pilots holding AA pilot

seniority numbers—though they did not fly AA aircraft—could keep them,

as a vested right, even after the expiration of the flow-through agreement.

These pilots would also have a future right to flow to AA when AA resumed

hiring. Bloch did not rule on precisely how their seniority would be used.

George Nicolau subsequently ruled on a grievance brought by

ALPA, holding that Eagle pilots who held AA seniority numbers, but

continued to fly at Eagle, had the right to occupy 50 percent of the class slots

at AA under the flow-through agreement. In his remedy award, Nicolau

specified the exact process by which Eagle pilots would flow to AA.

ALPA, APA, AA, and American Eagle abided by the Nicolau award and the

The flow-through agreement allowed Eagle pilots to obtain AA pilot seniority numbers and

flow up to American when AA was hiring new pilots. Before flowing up to AA, Eagle jet

captains had to serve training blocks of 18 or 24 months at Eagle. The agreement also allowed

AA pilots to flow down to Eagle during pilot furloughs at American. It provided that at least one

of every two new-hire positions per new-hire class at American would be offered to Eagle

captains in order of seniority. The agreement became part of both the AA/APA and the American

Eagle/ALPA contracts. As a result, pilots flowed up from Eagle to AA, until 9/11 caused layoffs

at AA and AA pilots flowed down to Eagle.

Approximately 125 Eagle pilots could take advantage of the flow-up opportunities to AA,

while more than 300 AA pilots could bump into Eagle positions. Eagle pilots received AA

seniority numbers upon successfully completing training as a regional jet captain at Eagle when

AA was hiring. Because of the rapid growth of Eagle’s regional jet fleet, AA pilot hiring, and

the 18- and 24-month training locks, about 800 Eagle pilots held AA seniority numbers they had

received prior to 9/11. These pilots were still flying at Eagle between 1999 and 2001, because a

backlog of pilots in training freezes developed.

Several pilots challenged Nicolau’s decision and subsequent remedy award in the courts, but

the Fifth Circuit upheld his award and the Supreme Court denied certiorari. Mackenzie v. ALPA,

598 F. App. 223 (5th Cir. 2014), cert denied, 135 S. Ct. 2896 (U.S. 2015).

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original four-party agreement reached in 1997, despite the complexities

caused by 9/11.

The concept of seniority-based pilot flow-through to AA has been

embodied in several subsequent agreements in the airline industry. It

continues at American Eagle’s successor, Envoy Air, where both

management and labor accept the strategy as a tangible means of career

progression.

Delta/ALPA Force Majeure (2001), Bankruptcy (2005), and Interest

Arbitration (2007). Although the airlines had been very profitable in the 1995

to 2000 period, after 9/11 and the closure of U.S. airspace for five days, Delta,

along with most airlines, invoked the force majeure provisions of its

collective bargaining agreement. The carrier claimed the right to reduce

staffing as an exception to the agreement’s no-furlough clauses. The pilots

challenged the carrier’s invocation of force majeure in certain instances in a

series of cases in the years following 9/11. Richard Bloch, former NAA

president, arbitrated the disputes. He found that 9/11 was a force majeure

event. However, he set parameters on how long and to what extent the

continuing effects of 9/11 should be viewed as excusing compliance with

certain contractual provisions.

In September 2005 Delta filed for bankruptcy, along with 22 other

airlines during the period 2001 to 2005.

Section 1113 of the Bankruptcy

Code provides that the debtor in bankruptcy court can seek to reject or modify

contractual terms if it can establish that the changes are necessary for the

reorganization of the company and if it treats all parties fairly and equitably.

A conflict of law issue arose because of the dramatic legal differences

between the bargaining process under the RLA and the bankruptcy law

process under section 1113. Under the RLA, the NMB controls the mediation

process and agreements must be mutually agreed to. Importantly, when the

bargaining process is fully exhausted, the parties are eventually released into

self-help. By contrast, under bankruptcy law, the judge controls the timing of

the process, usually subject to severe time constraints, and allows for

unilateral changes approved by the court. However, initially no definitive

circuit court decision was rendered on whether a contract rejection by a

bankruptcy judge under section 1113 would permit self-help under the RLA.

The bankruptcy court held that the status quo provisions of the RLA barred

post-rejection strikes until the parties bargained under the RLA and were

released.

In a special case, ALPA and Delta Air Lines mutually agreed to

remove their section 1113 process from the court’s jurisdiction and substitute

a panel of three arbitrators to decide whether the section 1113 standards had

been met by Delta’s last proposal. The panel would either select the

company’s proposal and reject the contract or side with ALPA and not reject

the contract. The parties chose to use three NAA arbitrators—Robert Harris,

The bankruptcies were the result of the lasting impact of 9/11; large cost differentials between

the legacy network carriers and the emerging low-cost carriers in the early 2000s; and the spike

in oil prices after Hurricane Katrina in late August 2005. AA filed much later, in November

2011, though it obtained union concessions beginning in 2001 in an effort to avoid bankruptcy.

Delta Air Lines, 359 B.R. 491 (Bankr. S.D.N.Y. 2007); see also Northwest Airlines v. AFA,

483 F.3d 160 (2d Cir. 2007).

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Richard Bloch, and Fredric Horowitz. The panel skillfully engaged in active

mediation and adjudication of the issues and succeeded in bringing the parties

to a voluntary agreement. As Bloch eloquently stated to the parties at the

close of the arbitration hearing: “[T]he obligation to continue the bargaining

relationship, to respond meaningfully and responsibly to the needs of the

other party, [had] never been more essential and . . . [c]ollective bargaining,

it is true, is premised on an adversary relationship, but there’s far more to it

than that. The parties are in every sense of the word trustees of this

relationship.” The panel implored the parties to seek a consensual resolution

and stressed it would be available to assist in every way possible. Importantly,

both the court and creditors accepted the eventual agreement and the Delta

pilots ratified it. The Delta/ALPA arbitration process established a pattern

that led other pilot groups and carriers forward through the restructuring era

in the mid-2000s.

Alaska/ALPA Interest Arbitrations (2001, 2005, and 2012-2013).

Beginning in 1974, Alaska Airlines and ALPA agreed to interest arbitration

as a backstop for their negotiations, and they have maintained the process

ever since. The decision to use interest arbitration was initially part of a back-

to-work agreement following a flight attendant strike during which the pilots

supported the flight attendants.

Several voluntary agreements were reached subsequent to that

agreement, but some also ended up being arbitrated. During each round of

negotiations, the parties agreed to a formula for calculating pay rates,

generally taking the average pay rates of employees at the other major airlines

and applying them to Alaska employees.

In May 2001 George Nicolau issued an interest arbitration award

regarding pay for Alaska pilots on the 737-900 aircraft. In 2005, at the height

of the post-9/11 bankruptcies that Alaska and Southwest alone among the

major airlines avoided, the parties again submitted their dispute to interest

arbitration; Richard Kasher served as the arbitrator.

In 2012-2013 Alaska and ALPA agreed to a med-arb process with a

single mediator, Joshua Javits. If a full agreement were not reached in

mediation, two arbitrators would join the mediator to arbitrate the remaining

matters in dispute. A three-arbitrator panel was established with Joshua

Javits, Richard Bloch, and Frederic Horowitz. After a weeklong hearing, the

panel issued its findings and the award. The central issue before the panel

was whether Alaska, which accounted for 5 percent of industry revenues,

should pay its pilots the same rates as those being paid by the Big 3 airlines,

which each had 20 percent of industry revenues as well as vastly more

aircraft, routes and destinations. The panel found: “The evidence in this case

warrants a conclusion that (1) this is an enterprise that differs markedly, in

various respects, from the larger carriers and that, significantly, (2) that

difference has been routinely recognized by the parties themselves.”

Within six months of the Alaska finding, two smaller major airline

pilot collective bargaining negotiations were settled and ratified, JetBlue and

Spirit. This speaks to the nature of pattern bargaining in the airline industry.

Compass/ALPA Med-Arb (2007 and 2012-2013). After its

bankruptcy, Northwest Airlines created Compass Airlines as a regional

airline. NWA and ALPA agreed to a med-arb process to resolve their

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collective bargaining dispute in 2007

and agreed to it again for their 2012-

2013 round of bargaining.

The 2012-2013 process involved strict timeframes of less than one

year in total for direct negotiations, mediation and interest arbitration. This

timeframe compares favorably with a typical flight crew negotiation of two

or three years.

In the mediation phase, the med-arb (Joshua Javits) helped the

parties define the scope of an “issue” and identify the comparative carriers

for purposes of setting pay rates. The parties made extensive and successful

use of subject-matter experts—small groups to address technical issues such

as training and scheduling. Only a few key issues remained at the end of the

mediation process, and the parties were not far apart on those. The med-arb

issued a decision, which precluded the necessity of a ratification vote.

Continental Airlines Pilots/United Airlines Pilots Retroactive

Lump-Sum Allocation (2012). The merger of Continental Airlines (CAL) and

UAL required UAL, as the surviving carrier, to reach a joint collective

bargaining agreement with the combined pilot group. That joint agreement

included a $400 million retroactive lump-sum payment to the combined pilot

group. The representatives of the two pilot groups could not agree on the

proper allocation of the money, so they agreed to interest arbitration before

NAA member Ira Jaffe. The union parties presented extensive analytical and

financial data at hearings on November 1 and 2 and asked that a decision be

rendered by noon on the following Monday, November 5. Jaffe met the

deadline and issued a 26-page decision that considered both the lump-sum

payment and retroactive purposes of the money; the pre-joint collective

bargaining agreement wage rates of the pilot groups, including the values of

work rule trade-offs related to those wage rates; the hours flown by the two

groups; the negotiating history; differences in retirement contributions; and

an ALPA technical analysis. He concluded that a split of $175 million to the

CAL pilots and $225 million to the UAL pilots was fair and equitable. The

parties were able to move to the next phase of the merger process, seniority

list integration.

ExpressJet/Atlantic Southeast Airlines Interest Arbitration (2020).

After nearly 10 years of bargaining and a merger, ASA and the IAM—

representing flight attendants—could not reach an agreement following two

failed tentative agreements. The parties agreed to submit the dispute to

binding interest arbitration before NAA member Charlotte Gold. The

arbitration was conducted using the last best offer (i.e., baseball style) interest

arbitration process. In March 2020, Gold considered the company’s proposal,

the union’s proposal and the failed tentative agreement, and she selected the

failed tentative agreement for the parties’ joint collective bargaining

agreement.

Seniority List Integration Cases

Airline mergers and acquisitions produce the operational need to

integrate seniority lists of all employees at the carriers involved. Following

The agreement is the result of Northwest’s bankruptcy restructuring.

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AA’s acquisition of Trans World Airlines (TWA) in 2001, a number of TWA

pilots were stapled to the bottom of the AA pilot seniority list through an

agreement between AA and the APA without the participation of TWA pilots,

and similar seniority dictates were made without the involvement of the

former TWA flight attendants. Congress then passed the McCaskill-Bond

Act.

This 2007 amendment to federal aviation legislation requires a fair and

equitable process for seniority integrations. Although this broad standard

became the touchstone for subsequent mergers, especially regarding process,

it by no means constituted a substantive roadmap or formula for decisions.

NAA arbitrators have had their work cut out for them in seniority

list integration cases. A sampling of the major cases in the last 25 years

reveals how the respective arbitrators addressed some of the issues.

Pilot Seniority List Integration Cases. Pilot seniority list

integrations are by far the most contentious, because seniority substantially

affects pilots’ careers in terms of aircraft flown (category), status (captain or

first officer), pay, training, schedule (choice of trips), furloughs, and so forth.

The internal union conflicts and resentments resulting from the seniority list

integration process and resolutions can persist into the future. They have even

resulted in changes in union representation on several occasions.

Although the industry has tried to make the pilot seniority list

integration process more predictable, many factors have conspired to make

integrating thousands of pilots extraordinarily challenging, including the:

• seniority list integrations associated with any prior mergers;

• seniority of the pilots affected; a

• context, including differing unions, the impetus for the merger or

acquisition, differences between the merging airlines, and shifting

criteria for seniority list integration determinations.

Atlas/Polar (Robert Harris 2006). Atlas Air Worldwide Holdings

Corp. (AAWH) was created in February 2001. It held Atlas thereafter and

acquired Polar later in 2001, years before the actual consolidation of

operations. In a case prior to the McCaskill-Bond legislation, the NAA

arbitrator (Robert Harris) found that the date AAWH announced its intended

acquisition of Polar, July 2001, was the constructive notice date (i.e., the date

after which pilots hired by either airline would be integrated based on their

respective date of hire). Harris found that those pilots knew or should have

known when hired that eventually they would be working for an integrated

airline even though that date was many years before the actual integration of

operations. Therefore, the actual integration decision date (November 2006)

applied only to pilots hired before the acquisition date of July 2001. The

seniority list integration experience, and events related to it, led pilots to

replace ALPA with the IBT.

49 U.S.C. § 42112 (b)(4) (2018). The Act requires that where a merger or an acquisition

“results in the combination of crafts or classes that are subject to the Railway Labor Act,” the

carrier make provisions “for the integration of seniority lists in a fair and equitable manner,”

including negotiation with union representatives and binding arbitration in covered transactions.

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US Airways/America West (George Nicolau 2007). The US

Airways/America West case was the first case in which the parties used

computer modeling to estimate the future economic consequences to pilots

of various integration scenarios. The decision put all furloughed US Airways

pilots below most junior America West pilots. It was based on the theory that

their nonworking status, coupled with US Airways’ dire financial condition

at the time of the merger, meant their career expectations were much weaker

than those of all America West pilots. This rationale thereby discounted the

power of longevity and increased the power of status (captain or first officer)

and category (aircraft type). The case led to USAPA replacing ALPA at the

merged US Airways, and the new union then refused to implement the

Nicolau award. This, in turn, led to extensive, heated litigation over the

integration and its effects.

The controversy also kept the pilots from the

benefits of a new collective bargaining agreement for 10 years or so while

other pilot group wages were rebounding. It also led to ALPA changing its

merger policy to require arbitrators to take into account multiple factors, such

as longevity, status, category and career expectations.

Delta/Northwest (Richard Bloch, Dana Eischen, and Fredric

Horowitz 2008). The Delta/Northwest case was decided under the prior

ALPA merger policy. That merger policy reduced the impact of pilot

longevity and focused on pilot status and category. However, the panel gave

credit to the NWA pilot group’s greater near-term expected attrition rates.

NWA-ALPA’s position was that a strict date-of-hire (longevity) approach

should be taken. This position was supported by their view of super premium

wide body flying of which NWA had proportionately more.

United/Continental (Dana Eischen, Roger Kaplan, and Dennis

Nolan 2013). The United/Continental case was the first major case decided

under new (i.e., post-US Airways/America West) ALPA merger policy. The

Continental pilots’ proposal sought the use of longevity alone and excluded

consideration of status and category entirely. It also put United pilots who

were on furlough at the time of the merger—plus others—at the bottom of

the seniority list. United pilots argued, and the arbitrator panel agreed, that

the new ALPA merger policy required consideration of longevity as well as

status and category. Because the panel gave credit to longevity, contrary to

the result in the US Airways/America West seniority list integration case, the

decision integrated a substantial number of furloughed United pilots into the

ranks of working Continental pilots. The panel also adopted the United pilots’

hybrid methodology, a mathematical blend of longevity and status and

category values, weighing them at various percentages to produce an

integrated seniority list.

US Airways-East (former US Airways)/US Airways-West (former

America West)/American (Joshua Javits, Steven Crable, and Shyam Das

2015). Prior to the seniority list integration arbitration, a preliminary

arbitration board was established to determine whether APA, as the NMB-

certified representative of pilots at the merged AA/US Airways carrier, could

and should designate a separate merger committee to represent the interests

See, e.g., Addington v. US Airline Pilots Ass’n, 791 F.3d 967 (9th Cir. 2015).

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of the former America West pilots in the seniority list integration process.

The board held that APA had the authority and that it was proper under the

McCaskill-Bond Act, which required a fair and equitable process for

seniority integration at merging carriers, for APA to do so.

American/US Airways-East/US Airways-West (Dana Eischen,

David Vaughn, and Ira Jaffe 2015). The arbitrator panel declined to use the

Nicolau award as the basis for first integrating the East and West pilots and

then integrating that group with the American group. Even though this was

not an ALPA case—APA represented AA pilots and US-APA represented

US Airways pilots—the panel looked to cases decided under ALPA merger

policy to structure the award and used the hybrid methodology approach

adopted in the United/Continental seniority list integration case.

Alaska/Virgin America (Fredric Horowitz, Steven Crable, and

Dennis Nolan 2017). The arbitrator panel used the hybrid methodology, with

certain conditions and restrictions. Also, unlike in most seniority list

integration cases, meaningful mediation occurred. That mediation resulted in

several very constructive pre- and mid-hearing agreements and the narrowing

of differences between the pilot groups’ respective positions.

Flight Attendant Seniority List Integration Cases. Flight attendants

have the same monthly bidding for schedules that pilots do, so seniority

affects their daily work lives and compensation to a greater extent than is

typical for 9 to 5 employees. However, the application of longevity based on

date of hire as the vehicle for seniority integration predominates in union

constitutions and agreements. AFA, the leading flight attendant union,

interprets its constitution as requiring a straight date-of-hire seniority

integration. Moreover, flight attendants do not have the additional status and

category aspects of pilot work, so the flight attendant integration process is

much more straightforward.

NWA/Delta (Dana Eischen 2008). The NWA/Delta case pitted the

pre-merger Delta flight attendants, who had never been unionized, against the

pre-merger Northwest Airlines flight attendants, who were represented by a

committee led mostly by former AFA union leaders. AFA did not file an

application with the NMB to declare the merged carrier a “single carrier,”

which delayed the proceeding. Disputes occurred about how the list should

be constructed, but the critical issue was whether, and to what extent, a

McCaskill-Bond seniority list integration proceeding could require the

maintenance of rules regarding how seniority can be used.

Although seniority itself is important, the rules governing how

seniority is used are what give meaning and consequence to the seniority list.

As a nonunion carrier, Delta maintained that it had the prerogative to set and

change to a great extent the terms and conditions of employment, including

seniority rules. The pre-merger NWA flight attendant committee sought

restrictions on how Delta could use seniority going forward. These scope-of-

decision issues also brought up questions about prior seniority integrations

and any potential vested effects. The decision addressed the scope of what

could be addressed by setting the seniority list alone; it did not adjust rules

governing how seniority is to be used.

123

ExpressJet/Atlantic Southeast Airlines (Joshua Javits 2019). The

International Association of Machinists and ExpressJet asked a third-party

neutral, Joshua Javits, to oversee the seniority integration review process for

the flight attendant seniority lists resulting from the merger of ExpressJet and

Atlantic Southeast Airlines and affecting approximately 1,000 flight

attendants. Fifty-seven protests were filed, and the neutral sent each protestor

an individual determination letter regarding his or her protest.

Ground Employee Seniority List Integration Cases. Ground

employees include mechanics, fleet service employees, and customer service

agents. For these employees, seniority integration by date of hire is the near

universal union policy. Specific craft and lead seniority issues may come into

play, among others. Yet even these issues are fairly readily resolved by the

deference the McCaskill-Bond Act shows to established internal union

policy, where the same union represents both groups.

United/Continental (Joshua Javits 2013-2014). The International

Association of Machinists and United Airlines retained the assistance of a

third-party neutral, Joshua Javits, to help research and make

recommendations on the integration of the seniority lists affecting the fleet

service, passenger service, and storekeeper employees of pre-merger United

Airlines, Mileage Plus, Continental Airlines, and Continental Micronesia.

This integration involved tens of thousands of employees.

In late 2013 the neutral issued a report and recommendations to the

IAM setting forth the process that was followed and the reasons for his

recommendations regarding seniority integration. The initial integrated

seniority lists were published for union members’ review. Prior to the

issuance of that report, employees were afforded an opportunity to submit

any comments or concerns they might have related to the seniority integration

process. The neutral received and reviewed more than 1,000 comments from

employees, and he considered these comments in making his report. In

addition, the neutral conducted a fact-finding process in person and by

teleconference to receive input from as many of the pre-merger groups as

possible.

American/US Airways (Joshua Javits 2016-2017). In a process

similar to the one used for the United/Continental seniority list integration

case, American/US Airways and the International Association of

Machinists/Transport Workers Union retained the assistance of a third-party

neutral, Joshua Javits, to help research and make recommendations on

integration for the seniority lists for approximately 30,000 US Airways and

American Airlines ground employees. More than 800 comments and 1,600

protests were received and answered.

Following the issuance of the neutral’s report and the publication of the combined seniority

lists, employees were afforded an opportunity to protest their placement on the proposed lists.

More than 700 protests were timely filed. Each of those protests was presented to the company,

which, together with the IAM, conducted a records review; the information was then reported to

the neutral. The neutral sent all 727 protesters an individual decision on their protest.

124

Alaska/Virgin America (Joshua Javits 2017). The IAM asked a

third-party neutral, Joshua Javits, to assist in the integration of the

approximately 700 Virgin America employees into the Alaska Airlines’

seniority lists for clerical, office, and passenger service employees. As with

the other mergers, the neutral used the IAM’s long-standing policy of date of

entry into classification. More than 200 protests were received as part of this

integration process, 106 of which the neutral granted in whole or in part.

NAA’s Success in Airline Dispute Resolution

The NAA, as an institution and through its members, has been

essential to airline dispute resolution. The RLA, established by the parties

themselves, elevates self-governance over litigation and agency

jurisprudence, especially compared with the NLRA. The NAA is embedded

in the parties’ preferred internal dispute resolution processes.

Those dispute resolution processes have addressed the subtle,

complex, and urgent issues confronting the airline industry during the last 25

years. Included among these issues are the historic catastrophes of 9/11 and

bankruptcies; the industry consolidations following in their wake; and

consequent industry responses, such as joint collective bargaining

agreements and seniority list integration. NAA neutrals have succeeded in

moving the parties forward through these challenges and structural changes,

with flexibility, adaptability, creativity, thoughtfulness, expertise, and

objectivity.

The NAA has helped stabilize this essential service industry that is

so key to the nation’s economy. No doubt the organization will continue to

help the parties navigate appropriate solutions as the industry struggles to

overcome its latest challenge—the COVID-19 pandemic.

125

Chapter 7

THE U. S. STEEL AND STEELWORKERS BOARD OF

ARBITRATION: THE ROLE OF AN ARBITRATION

SYSTEM IN A MAJOR INDUSTRY*

Shyam Das

The U.S. Steel and Steelworkers Board of Arbitration originated

shortly before the National Academy of Arbitrators was founded in 1947.

Like the Academy, it has evolved during the ensuing years. Its history is

illustrative of the ways in which parties in a major industry have adapted their

arbitration system to changing circumstances and of the significant role

arbitration has played in their collective bargaining relationship over the past

seventy-five years. From 1997 through 2020 I served as Chair of the Board.

In 1937 U.S. Steel—perhaps surprisingly, given its labor history—

agreed to recognize the Steelworkers as the collective bargaining

representative for its production and maintenance employees. Later, other

groups of U.S. Steel employees—including salaried office and technical

workers—also were organized. By 1942 the union had successfully organized

most other basic steel industry companies.

The initial grievance and arbitration procedure in the U.S. Steel

contract provided for use of ad hoc arbitrators. The entry of the United States

into World War II and the need for labor peace during the war led to the

creation of the War Labor Board, where many of the founders of this

Academy got their first experience in resolving and arbitrating labor disputes.

In 1945 U.S. Steel and the Steelworkers agreed to establish a Board of

Conciliation and Arbitration. This initial Board was composed of three

members—one designated by each party and a neutral chair. The first chair

was Herbert Blumer, a well-known and respected sociologist at the

University of Chicago and later at Berkeley. Blumer had arbitrated in the steel

industry for the War Labor Board. The 1945 contract provided, “The Board

shall endeavor to conciliate the grievance….” Failing that, the Board was to

proceed to arbitrate the grievance.

It appears that conciliation was not a success. In the next contract,

negotiated in 1947, the parties dropped that process, although they

maintained the Board's original title until 1952. Blumer was succeeded by

Ralph Seward, who later that year went on to become the first president of

the Academy. Seward already had substantial experience as an arbitrator—

most recently at General Motors (GM), where he became the third GM/UAW

umpire in 1944, succeeding George Taylor and G. Allen Dash, another

Academy president.

In an excellent paper in the 1964 Proceedings,

Charles

Killingsworth and Saul Wallen set forth the early history of permanent

* This is a slightly revised and updated version of Das’s 2015 NAA Presidential Address.

126

arbitration systems in the United States. One of the two major models was

the impartial chairman system, which was well established in the garment

and hosiery industries. As they describe it, “An impartial chairmanship is a

system for resolving all problems that arise during the life of a contract,

utilizing a technique of continuous negotiation, and centering on a mediator

who is vested with the reserved power to render a final and binding

decision.”

The other model was the umpire system, which they note originated

in the anthracite coal industry. This was “a system of adjudication of those

rights and duties which are recognized by the language of an existing

agreement between the disputing parties.”

The GM umpireship was

structured on this model, although Taylor and Dash were more mediation-

centered in practice. By the time Seward followed them at GM in 1944, the

parties had indicated they wanted to follow the adjudicative model, which

Seward was most comfortable with as well.

The U.S. Steel Board in 1947 was still a tripartite board, but as

Killingsworth and Wallen report:

The partisan members were advocates, not

principals; their chief function was to win decisions, not to

negotiate. Executive sessions of the Board became what

amounted to rehearings of the important cases. Draft

decisions of the chairman were also discussed at length in

many cases. Finally, the partisan members of the board

often issued dissenting opinions couched in strong

language.

Interestingly, the two party members shared offices with Seward on a full-

time basis. Seward described it as “a gold fish bowl, everything I said or did

was observed . . . and every discussion we had went back to the parties.”

recalled:

It’s one thing to have a three-man Board in

interest cases or on some types of grievance cases where

you have the liberty to make policy…. [But] I have always

been impatient really with three-man Boards in most

grievance arbitrations where the issues are clear and you

are concerned mainly with the application of language to a

problem and this is really just a matter of thinking the case

through. At U.S. Steel the three-man Board was immensely

helpful in educating me to the nature of the problems and

the nature of the parties' long-range disputes and long-

range goals. But we got into really ridiculous situations

Charles Killingsworth & Saul Wallen, “Constraint and Variety in Arbitration Systems,” in

Labor Arbitration: Perspectives and Problems, Proceedings of the 17th Annual Meeting,

National Academy of Arbitrators 54 (Mark L. Kahn ed. 1964).

Id. at 60.

Id. at 61–62.

Id. at 64–65; Richard Mittenthal, Interview of Ralph T. Seward, Apr.14, 1977,

http://www.naarb.org/interviews/RalphSeward-77.PDF at 21 [hereinafter Seward Interview].

Killingsworth & Wallen, supra note 1, at 70.

Seward Interview, supra note 4, at 48.

127

when we were trying to sort of mediate out or negotiate the

interpretations which were to be placed on words.

* * *

Somebody had to decide what the word meant and

there weren't a lot of choices; it meant this or meant that;

and particularly when it [the tripartite Board] took the

extreme form which it did, not a three-man Board, but a

process of the central office of both sides knowing what

was in the propos[ed] drafts, knowing the issues, telling the

Board members what arguments they should make to me

and then having my replies reported back to them. This

kind of thing got, well it was just extremely inefficient and

exasperating and, of course, terrifically difficult.

At the end of his two-year term, the Company fired Seward. (The

Union had fired his predecessor.) For the next year and a half there was a

series of temporary chairs. In mid-1951, the parties retained Sylvester Garrett

as chair. Garrett had extensive War Labor Board experience, had been a

management adviser in the glass industry, and had been teaching law at

Stanford. Garrett would remain as chair until he retired from that position at

the end of 1978—an impressive span of almost 30 years. Meanwhile, Seward

was selected as umpire at Bethlehem Steel, a position he held for many years.

In the 1952 U.S. Steel contract, the parties eliminated the tripartite

system. There no longer were partisan members, although to this day it is

called the Board of Arbitration. Garrett, however, instituted a clearance

system, with the parties' approval, under which tentative drafts were sent to

the parties. Garrett has observed:

In my judgment this has been of almost

inestimable value. First, it helps the arbitrator avoid serious

error. Second, it permits the arbitrator to delete from the

opinion matter which is offensive, misleading, potentially

mischievous, or simply unnecessary. Third, it gives the

potentially disappointed party an opportunity to absorb the

decision, understand it, and talk about it frankly with the

arbitrator. Sometimes people will read a decision initially

and hobgoblins will arise in their mind—they may construe

it to mean something that's not intended at all. By talking it

out this can be made clear and sometimes the opinion can

be reshaped in order to eliminate a potential

misunderstanding. Finally, this procedure provides an

opportunity, very frankly, for the parties to settle cases

which, in light of what the arbitrator thinks, might be better

settled than embodied in a written decision. There also are

Id. at 49.

128

times when the parties agree on matters to be included in

an Opinion so as to be helpful in dealing with future

problems.

In his 1964 Presidential Address to the Academy, Garrett discussed what he

viewed as the benefits of this system compared to a tripartite board:

[

T]he tripartite board system often has proven too

cumbersome, too expensive, too political, or simply too

inefficient to enjoy widespread use. Many tripartite boards

fail to accomplish sound results simply for lack of enough

vision and objectivity on the part of the persons involved.

It may be, too, that the formal existence of a tripartite board

will exaggerate the adversary approach to arbitration, with

each party expecting its representative to bring home the

bacon in the important cases by pressuring or mesmerizing

the neutral arbitrator.

Most important of all, the neutral arbitrator in the tripartite

system usually must obtain the vote of one or the other of

the partisan members. This necessity can undermine the

leadership role of the neutral and reduce him to bargaining

for support of one party or the other.

In the 1950s Garrett dealt with a number of major interpretive issues

involving, among other subjects, local working conditions, job

classifications, and incentives.

The parties jointly developed a

comprehensive and hugely successful job classification system, including

manuals with specimen job descriptions and classifications, to be used in

uniformly classifying the thousands of jobs then in existence so as to

eliminate wage-rate inequities. Here the task of the Board was to resolve

disagreements that arose in implementing the new program. It issued a series

of decisions that largely were followed at other companies both in steel and

other industries organized by the Steelworkers, such as the can industry,

which had adopted the same job classification procedures.

Until the 1980s, the basic steel companies bargained with the

Steelworkers on an industry-wide basis. Negotiations were dominated on the

employer side by the larger companies, in particular U.S. Steel, which was

about twice the size of the next largest producer, Bethlehem Steel. Economic

terms and many other contractual provisions were bargained on this basis and

Francis X. Quinn, Interview of Sylvester Garrett, Mar. 13, 1980,

http://www.naarb.org/interviews/Garrett-80.PDF at 15 [hereinafter Garrett Interview].

Sylvester Garrett, “The Presidential Address: Some Potential Uses of the Opinion,” in Labor

Arbitration: Perspectives and Problems, Proceedings of the 17th Annual Meeting, National

Academy of Arbitrators 114, 121 (Mark L. Kahn ed. 1964).

For an excellent and detailed discussion of the job classification and incentive issues, see Jack

Stieber, The Steel Industry Wage Structure: A

Study of the Joint Union-Management Job

Evaluation Program in the Basic Steel Industry (1959).

These decisions are collected in Herbert L. Sherman, Jr., Arbitration of the Steel Wage

Structure: Guides, Principles and Framework for the Settlement of Job Description and

Classification Disputes and Related Problems (1961).

129

then subsequently adopted by additional smaller so-called "me too"

Steelworker-represented companies. As Dick Mittenthal has noted:

[This] gave arbitration a critical role in steel labor

relations. Because the CBAs were written in general

language which could more easily be embraced by the

industry as a whole, there was ambiguity. And there was a

need to apply this general language to concrete problems.

All of that was left to the grievance procedure and, absent

agreement by the parties, to arbitration…. And predictably,

there were far more cases arbitrated in steel than in other

basic industries.

A quick glance at BNA’s Labor Arbitration Report volumes in the

1950s shows a heavy concentration of Steelworker decisions, the largest

number of which are U.S. Steel cases. Starting in 1950, the Steelworkers

contracted with a publishing firm, Pike and Fischer, to review all steel

arbitration awards and to summarize, digest, and publish those Pike and

Fischer independently deemed noteworthy. Until sometime in the early

1990s, Pike and Fischer issued a monthly bulletin containing the selected

awards and annually updated its digest. At the Steelworkers’ request, the Pike

and Fischer editors also prepared a Steelworkers Handbook on Arbitration

Decisions in 1960. The third and final edition was published in 1981. This

hornbook was based on the published awards and was designed to be used by

union representatives and advocates, but it also proved useful for

management personnel and arbitrators.

This reflected the importance placed on arbitration precedent in the

steel industry—not just at a single company. And there was a clear pecking

order. As Mittenthal writes: “The awards of Sylvester Garrett at United States

Steel and Ralph Seward at Bethlehem Steel, extraordinary men with long

service in this industry, were given special consideration.”

The clearance procedure instituted by Garrett was invaluable when

the Board dealt with such difficult and important issues as local working

conditions (which were seen by companies as infringing on management

rights) and incentives, both major sticking points for the parties. The Board

resolved many issues that the parties had not been able to work out in

negotiations—not through interest arbitration, but by deciding grievances

when the contract, due to lack of agreement, was silent or ambiguous. Garrett,

whom Dick Mittenthal—himself a giant in our profession—described in his

2008 memoir as “in my opinion the most talented arbitrator the profession

has produced,”

expounded later:

So when people talk about an arbitrator not

adding to a contract, I have to laugh. I didn’t alter their

agreement, I didn’t change anything in their agreement, but

my numerous interpretations certainly added detailed

meaning to their agreement. And they knew it and wanted

it that way, if we can judge retrospectively. And I have a

Richard Mittenthal, A View from the Middle of the Valley 58 (2008).

Id. at 59.

Id.

130

feeling that that word “add”—which is in the boiler-plate

phrase which typically limits the jurisdiction of an

arbitrator—is perhaps mischievous. At least it may carry a

connotation which is less than helpful. Any meaningful

interpretive process—judicial or otherwise—inevitably

“adds” something to an agreement in the literal sense of

that word.

Ben Fischer, long-time director of the Steelworkers Contract Administration

Department, addressing the Academy in 1976, stated:

The role arbitration [in the steel industry] has

played during a period of nearly 30 years must be viewed

as constructive, if not decisive. It is difficult to estimate the

degree to which relaxation of many tensions in collective

bargaining relationships has been a by-product of faith in

the role of arbitrators. I suspect that many collective

bargaining problems and issues have been more or less put

to rest or made manageable because arbitrators could be

depended upon to make equitable, practical, and competent

decisions. Language which might otherwise be fraught

with potential perils has been agreed to over the years

because the parties were willing to leave interpretation of

general provisions to the arbitration process, reasonably

confident that common sense would prevail.

Clearly, Garrett alone could not handle all the U.S. Steel cases

appealed to arbitration. The contract allowed the chair, in consultation with

the parties, to employ one or more assistants “to analyze cases, conduct

hearings and recommend decisions.” Special arbitrators had been used from

time to time on an ad hoc basis to help the Board keep up with its caseload,

but starting around 1960, Garrett began to hire a number of full-time

assistants who in essence were brought onto the Board as apprentice

arbitrators. At Bethlehem, Ralph Seward did the same thing, and some other

permanent steel company umpires also utilized assistants.

Among the early assistants at the U.S. Steel Board were Clare

(“Mick”) McDermott, Alfred Dybeck, and Edward McDaniel. Dybeck

ultimately would succeed Garrett and serve as Board chair from 1979 through

1996, after being elevated to associate chair and assisting Garrett in reviewing

drafts by the other arbitrators. As the other early assistants left the Board and

the caseload continued to grow, a second generation of assistants was hired

in the mid-to-late 1970s. These included Helen Witt, James Beilstein, and

myself, and somewhat later David Petersen and Elizabeth Neumeier. At

times, additional arbitrators with vastly different levels of experience were

utilized on an ad hoc basis because of the sheer number of cases. Some were

deemed sufficiently qualified to be assigned to any case, others only to more

routine discharge and discipline cases or simple contract disputes such as

Garrett Interview, supra note 8, at 14.

Ben Fischer, “Updating Arbitration,” in Arbitration of Interest Disputes, Proceedings of the

26th Annual Meeting, National Academy of Arbitrators 62 (Barbara D. Dennis & Gerald G.

Sommers eds. 1973).

131

overtime assignments. Both Garrett and Dybeck, with the parties’ full

support, sought out both women and African Americans to serve as assistants

and ad hoc arbitrators.

I would like briefly to describe what it was like being an assistant or

associate chair, positions I served in from 1977 to 1990. We were retained,

usually on three-year contracts, at a fixed salary. We were provided office

space and secretarial help at the Board’s offices in Pittsburgh. We were given

extensive tours of steelmaking facilities from coke ovens to finished product.

We did not need to worry about having enough work. Indeed, even when

there were as many as five assistants working at the Board, they could not

always keep up with the caseload, which in some years was as high as 700.

After a year or two at the Board we were allowed to handle a limited number

of outside cases for other parties, which gave us the opportunity to develop

broader acceptability. The cachet of being part of Garrett’s, and later

Dybeck’s, “stable” gave us a definite leg up. We constantly discussed our

cases and experiences. Many of us became good friends. If Garrett, or later

Dybeck, was in town, he frequently corralled the others in the office and took

us out to lunch. We learned much more than we realized at those convivial

lunches. (That was back when cocktails still were consumed at lunch.

Postprandial productivity suffered as a consequence.)

Until sometime in the 1990s, assistants typically were scheduled

once a month for four consecutive days of hearing at or near the location of

one of the company's plants, which at one time ranged from New England to

California, although they were concentrated in what now is called the Rust

Belt—from Philadelphia west through Pittsburgh and Cleveland to Gary and

Chicago and south to Birmingham. (I should add that until the bottom fell out

of the steel industry in the 1980s, we flew first class. Garrett observed that

top Company and Union officials did that, and it would be unbecoming for

us not to do so.) We might hear as many as eight cases in those four days—

many without transcripts. It was grueling, but exciting. The parties provided

prehearing briefs with copies of the grievance records. Post-hearing briefs

were extremely rare. At one time—alas, no longer—it was not uncommon to

socialize with the advocates you were spending the week with. The Company

was represented by arbitration attorneys from headquarters in Pittsburgh. The

Union advocates almost always were local staff representatives, not lawyers.

When I heard my first cases, I was in my early 30s—and looked

much younger, or so I thought. Some of the participants at the hearings must

have wondered what I was doing deciding cases that were of great import to

them. At least at the outset, I may have had little credibility in my own right.

But what I did have was the institutional credibility of the Board of

Arbitration. Everyone knew that the assistants were carefully selected by the

Board chair and top party representatives and that every decision issued by

the Board had to be reviewed and approved by the chair.

Garrett did not encourage discussion of a case before I drafted an

opinion, but he would offer advice on how to improve the draft and invaluable

insight into what the case really was about. He also would discuss the relevant

precedents—most of which he had authored. Sometimes, not often, the result

needed to be changed. Always there was praise for what I had done well and

encouragement. I got the same later from Al Dybeck. I could not have asked

for two better mentors and leaders.

132

There was one other aspect of our apprenticeship that I am not aware

existed anywhere else. Earlier I discussed the clearance or review system

instituted by Garrett back in 1952. Draft Board awards were circulated to the

parties, and not infrequently one or the other of the party representatives

would ask to discuss a draft decision. (Up until the late 1970s, even discharge

and discipline cases were handled in this fashion, although it then was

decided that discussing such cases was too problematic in terms of possible

allegations of collusion.) Periodically, review sessions were held in the

chair's office. Garrett or Dybeck, of course, would handle discussion of their

own decisions and also those of the ad hoc arbitrators, but the assistants

individually were called in and expected to fend for themselves when their

cases were up for discussion. The party representatives were not shy about

questioning the accuracy or rationale of a draft they disagreed with. I cannot

say this was a pleasant experience, but it honed my ability to think on my

feet. More important, it spurred me on to write the best draft decision I could,

in part because I knew I might have to defend it in one of those sessions. If it

looked like the discussion was becoming too uncomfortable, Garrett or

Dybeck usually would step in and bring the discussion to a close, indicating

there could be no other sound result than what I had reached in my decision,

although perhaps certain findings or language might best be excised or

revised. Almost never was the bottom line changed. That was not the purpose

of this review system.

The steel industry in the United States today is substantially

diminished in relative size and importance in contrast to what it once was. (In

1955 U.S. Steel was the second largest private employer in the country with

almost 270,000 employees. As of December 31, 2019, its domestic workforce

was about 17,000.

) Nonetheless, it remains an important and vital part of

our manufacturing economy. As the industry has changed, so have the “hot”

issues submitted to arbitration and, indeed, the operation of the Board itself.

Job security issues long have been a primary focus of collective bargaining

in steel and other manufacturing industries. When domestic steel production

underwent drastic reductions in the 1980s, in part because of cheaper imports,

the union placed primary emphasis on reining in subcontracting, particularly

of maintenance and repair or reconstruction work done both inside and

outside the plant.

Back in 1951, when the contract was silent on subcontracting,

Garrett issued a seminal decision holding that management's right to contract

out work was subject not only to its obligation not to discriminate against the

Union but also to an implied obligation under the recognition clause of the

agreement to “refrain from arbitrarily or unreasonably reducing the scope of

the bargaining unit.”

Garrett stated:

What is arbitrary or unreasonable in this regard is

a practical question which cannot be determined in a

vacuum. The group of jobs which constitute a bargaining

See Douglas A. McIntyre, “America’s Biggest Companies, Then and Now (1955 to 2010),”

Sep. 21, 2010, updated Mar. 21, 2020, https://247wallst.com/investing/2010/09/21/americas-

biggest-companies-then-and-now-1955-to-2010/; U.S. Steel Corp. 2019 Annual Report (Form

10-K), at 43.

National Tube Co., Case No. N-159, II Steel Arb. 777, 779 (Garrett 1951).

133

unit is not static and cannot be. Certain expansions,

contractions, and modifications of the total number of jobs

within the defined bargaining unit are normal, expectable

and essential to proper conduct of the enterprise.

Recognition of the Union for purposes of bargaining does

not imply of itself any deviation from this generally

recognized principle. The question in this case, then, is

simply whether the Company’s action . . . [in contracting

out work] can be justified on the basis of all relevant

evidence as a normal and reasonable Management action

in arranging for the conduct of work at the Plant.

Contracting-out disputes in the steel industry continued to be

decided on a case-by-case basis under the principles set forth in that decision,

as well as parallel decisions by arbitrators at other steel companies, until

1963. Then the parties adopted the first set of provisions expressly addressing

contracting out. Those provisions dealt only with work performed by

contractors within a plant, but in a preface the parties agreed that they had

“existing rights and obligations with respect to various types of contracting

out.” Those implied rights and obligations remained the arbitral touchstone

for contracting-out disputes over work performed outside the plant and other

contracting-out issues not specifically covered in the agreement.

In the early 1980s, the Union filed a huge number of grievances as

it saw its jobs dwindling together with an increased use of contractors by the

Company in an effort to reduce costs and remain competitive. In 1986—by

which time industry-wide bargaining had ended

—the union succeeded in

negotiating considerably stronger and more comprehensive protection

against subcontracting with all major producers other than U.S. Steel.

Following a six-month work stoppage, the U.S. Steel parties reached a

settlement with the assistance of then-former Board Chair Garrett, which

included most of the provisions sought by the Union.

These new

contracting-out provisions were extremely detailed, running to multiple

pages of the contract, and spawned many grievances that filled much of the

Board’s docket over the next 15 years.

Among the changes was the institution of an expedited procedure

designed to permit arbitrations to be scheduled, heard, and decided—when

possible—before the work in dispute was performed. At some other steel

companies where this procedure was invoked relatively infrequently, it

worked more or less as intended. At U.S. Steel, however, the sheer volume

of expedited appeals soon overwhelmed the Board’s ability to process these

cases in strict accordance with the contract. Moreover, because of the time

constraints, these expedited cases—which constituted the majority of

contracting-out disputes—were excluded from the clearance system that had

proved beneficial to the parties and the Board, even though some were among

Id.

The Experimental Negotiating Agreement, in effect from 1974 to 1984, under which the

industry and the Union agreed to use interest arbitration in the event they were unable to reach

an agreement, also had ended.

On its part, the Company obtained the Union’s agreement to specified manning reductions,

which in some cases came before Board arbitrators for final determination.

134

the most important cases to the parties and might have involved significant

interpretive issues.

By the time the parties negotiated their next agreement in 1991,

there were some 8,000 grievances pending arbitration. While certain types of

contracting-out disputes were heard expeditiously because the agreement

required a decision before the Company could contract out the work, other

contracting-out matters languished indefinitely. Moreover, non-contracting-

out grievances, except for discipline and discharge cases, were so far back in

the pecking order that—as one former top Company executive later put it to

me—there was little hope that they would be heard while the issues raised

were still relevant to anyone.

In an effort to alleviate this situation, the parties implemented two

changes to the arbitration process in 1991. They adopted an experimental

grievance screening procedure under which the parties could agree to present

a grievance record to a designated screening arbitrator with a brief

explanation of their respective positions. The screening arbitrator then would

announce, in effect, an advisory bench decision that had no precedential

value. The parties were not required to follow the recommendation, and if the

grievance proceeded to regular arbitration, it was to be heard by a different

arbitrator. Obviously, this was not designed for important cases, but it placed

a premium on the credibility of the screening arbitrator; so it was no surprise

that Garrett was chosen for the job. The parties also hired Joseph Sharnoff,

who had substantial experience arbitrating cases at Bethlehem Steel, to assist

Chair Dybeck in processing contracting-out cases at the Board. Both these

mechanisms were relatively short-lived, but they reflected the parties’ ability

and desire to adapt the arbitration process to deal with exigent circumstances.

In 2003, after the bankruptcies of Bethlehem and several other major

steel producers, U.S. Steel acquired the assets of National Steel Corporation.

In order to obtain those plants in bankruptcy, the Company had to reach a

new collective bargaining agreement. The Union already had negotiated a

considerably revised contract with ISG, a firm that purchased Bethlehem in

bankruptcy as well as the assets of other liquidated steel companies. This ISG

contract became the basis, with some modifications, for the 2003 U.S. Steel

agreement. Major changes affecting local working conditions, job

classification, and incentives significantly reduced grievances on those

issues, but new contracting-out provisions kept Board arbitrators busy for

several years.

In 2008—just before the great recession—the parties entered into a

new contract in which, on an experimental basis, the contracting-out

provisions of the contract were suspended in return for established base force

manning levels and substantial overtime opportunities for maintenance

workers. The parties seem to have agreed they were spending too much time,

effort, and money on contracting-out disputes, and that there had to be a better

way to achieve their respective goals. Notably, they also included provisions

for utilizing interest arbitration—on a final offer basis—to resolve disputes

as to whether and to what extent the agreed base force manning levels should

be increased during the term of the contract and over competing layoff

minimization plans to be implemented prior to layoff of employees.

The parties’ collective bargaining relationship, including the use of

arbitration, clearly has evolved and adapted to changing circumstances.

135

Today they have a notably more cooperative relationship—which of course

makes sense in the context of the changes that have transformed the industry

in recent decades.

As a result of this evolution and other changes in the industry, the

Board’s workload has been reduced, although arbitration still plays an

important role in the parties’ relationship. Since 1997, there have been no

assistants employed at the Board. The Chair has been assisted by a number

of experienced arbitrators—there are now two, although there have been as

many as five—whom the parties agree to use on a year-to-year basis to hear

cases on up to two days a month and to recommend decisions.

136

hapter 8

LABOUR ARBITRATION IN CANADA

AND CANADIANS IN THE NAA

Kenneth P. Swan

Labour Arbitration in Canada

Introduction

Readers of the collection of the Academy’s wisdom prepared for its

fiftieth anniversary could be forgiven for thinking that labour arbitration

(although not spelled that way in the text) north of the “world’s longest

undefended border,” as we then still innocently supposed the dividing line

between our countries to be, was much the same as labor arbitration (spelled

that way) south of that line.

The Index to NAA: Fifty Years in the World of

Work

indicates there are references to arbitration and arbitrators in Canada

on only three pages.

On page 15, the reader would have learned that Canada had

established a regime similar to the Wagner Act by a wartime order-in-council,

later enacted by statute in 1948, but that the main differences were that many

Canadian jurisdictions had established arbitration as a mandatory process for

resolving disputes arising from a collective agreement, and that the earliest

arbitrators were not industrial relations specialists or lawyers but retired or

even active judges.

On pages 36 and 37, a paragraph in the text and a footnote discussed

the membership of leading Canadians in the NAA beginning in 1955, but

added little more of substance apart from an observation quoted from a 1991

Chronicle article to the effect that, “as a general statement … grievance

arbitration in Canada is essentially the same as in the U.S.A.” This general

statement is the more remarkable when considered against the complete

article, the contents of which it really does not reflect.

A footnoted reference

to “one of the most concise explanations of the Canadian arbitration system,”

This contribution is written unapologetically in “Canadian.” While I have worked around some

usages to avoid perplexing U.S. colleagues, changing the spelling of “labour” would require the

renaming of dozens of statutes, the tribunals established under them, and the officials who

administer them. Where possible, I have omitted multiple citations to Canadian sources apart

from the official reports, and included citations to CanLII, a free public collection of judicial and

tribunal decisions, as well as statutes and other material. While its coverage is not universal, I

have included all available citations to that source as they will be more readily available for U.S.

readers at www.canlii.org.

Gladys W. Gruenberg, Joyce M. Najita & Dennis R. Nolan, National Academy of Arbitrators:

Fifty Years in the World of Work 425 (1997), a history of the Academy’s first half century.

McLaren, R.H., “Grievance Arbitration in Canada: Vive la différence,” The Chronicle, October

1991, at 4. I have corrected the title as printed to put the accent in the correct place. Many thanks

to Katie Griffin at the NAA Operations Centre for finding this article and certain demographic

data for me.

137

a contribution by H.D. “Bus” Woods to the 1968 Proceedings,

omits to note

that Woods described a system with many differences from the U.S. model.

Woods, a formidable presence in Canadian industrial relations,

started with his own observation of “the similarity of the two systems,” but

his second paragraph began “a closer examination reveals very important

differences.” This chapter will explore those differences, but it will also

relate how professionals with similar skills and training operate two different

structures for dispute resolution but often reach similar conclusions and apply

similar principles. Since Fifty Years included little of substance on this

subject, I begin at the beginning.

The space and time available for this discussion restrict the level of

detail possible. To make the chapter more manageable, I have engaged in

generalizations and impressionistic assertions that should not be encouraged

elsewhere but are essential here. My intention was to introduce U.S. readers

to the intricacies of arbitration and arbitrators in Canada, not to attempt a

comparison of all aspects of the two systems, and certainly not to present a

definitive description of arbitration in Canada. That is a task for someone

with much more time and space.

The Constitutional Model

Given that the Canadian Constitution has purported since 1867 to

assign residual legislative authority to the federal level rather than to the

provinces, it is somewhat surprising that so small a share of legislative

influence over labour relations has been assumed by the Parliament of

Canada. The reason is a generally discredited constitutional decision in 1925

of the then highest court of appeal for Canada, the Judicial Committee of the

Privy Council of the United Kingdom, the details of which can be ignored

here. As Woods notes:

Relatively speaking, the American system is

centralized under federal

rather than state authority. The

reverse is true for Canada, where each province has

jurisdiction over practically the whole of the mining,

industrial, and commercial sectors of the economy, leaving

interprovincial and international businesses such as

telecommunications, railway, shipping, air transport, and a

few other areas to the federal authority.

Each province has a complete paraphernalia of

agencies such as labor relations boards and conciliation or

mediation services. Of course, each has full constitutional

authority to legislate within its own jurisdiction. It might

be expected that there would be a confusing hodge-podge

of public policies; and to a certain extent this is true. But,

for reasons which can only be explained by a study in

depth of the evolution of policy for about 70 years, there

is a Canadian pattern which, while not universally

H.D. Woods, “Public Policy and Grievance Arbitration in Canada,” in Developments in

American and Foreign Arbitration, Proceedings of the 21st Annual Meeting, National Academy

of Arbitrators 19 (Charles M. Rehmus ed. 1968).

138

applied across the country, is distinctly different from the

American pattern.

In the intervening six decades, much the same patterns have been

preserved, although the contents of those patterns have altered, in part

through legislative amendment but also through judicial intervention.

Woods restricted his analysis to the issues arising from grievance

arbitration, and I shall do the same. He noted that the singular feature of the

Canadian arbitration models was that grievance arbitration was mandatory in

almost all jurisdictions (now all)

as a part of the trade-off of an established

and enforceable dispute resolution mechanism for the “peace obligation,” the

prohibition of industrial action during the course of a collective agreement.

While earlier commentators may not have foreseen the impact of

this difference, it will become clear that the mandatory nature of grievance

arbitration has been a significant factor in leading arbitration in Canada along

a different path than in the US. The statutory nature of grievance arbitration

in Canada has produced a system influenced by the public nature of the

process. As will appear, this difference has been reflected in a sense that

arbitrators been given an inherent jurisdiction, and that there is a firm

distinction between the jurisdiction of arbitrators and the jurisdiction of the

courts, with priority to arbitration in disputes arising from a collective

agreement.

By judicial intervention, a doctrine has arisen that assigns

jurisdiction to arbitration in any dispute arising out a collective agreement,

even if a court might have a basis for a claim of shared jurisdiction. While

this approach sometimes means that an employee will have no remedy at all

if the first choice of forum was faulty, the cumulative effect of the

jurisprudence is to assign broad authority to arbitration to resolve workplace

disputes.

Partly through judicial decisions and partly through statutory

amendment, arbitrators have also accumulated a broad jurisdiction to

interpret and apply “employment related” statutes, as well as the general law,

including common law and equitable remedies, again to the exclusion of the

courts, although sometimes with a shared jurisdiction with other

administrative tribunals.

Finally, the public nature of grievance arbitration means that awards

are required to be filed with government authorities and are then available to

the public. Far from being a private process as in the U.S., grievance

arbitration in Canada is open and public, and is subject to increasing pressure

to remain transparent, through the application of “open court” principles.

Id. at 20 -21. There are thus eleven private sector arbitration regimes. The northern territories,

Yukon, Northwest Territories and Nunavut, are covered for collective bargaining purposes by

the federal legislation. The Supreme Court of Canada approved this application in Canada

Labour Relations Board et al. v. Yellowknife, [1977] 2 SCR 729, 1977 CanLII 230 (SCC). Some

of the underlying statutory provisions on which this judgment is based have been amended, but

none of the territories has enacted collective bargaining legislation, and the Canada Labour Code

still contains language that permits its application.

Only Saskatchewan did not, at the time of both the Woods and the McLaren articles, have a

statutory requirement to resolve collective agreement disputes by arbitration. That has since

been amended.

139

These developments have created, in my view, a very different

arbitration process in Canada from the U.S. model. Those differences, which

operate at the structural level, are explored in greater detail below.

Arbitral Authority in the Canadian Model

The expansion of arbitral authority took some time to emerge from

a relatively conservative application of the law by the judges, serving and

retired, who were Canada’s original arbitrators. Once the federal legislation

governing the appointment of judges was amended to limit outside

activities,

the development of a profession of labour arbitration began.

Among the original members were academics, and lawyers of an academic

bent, who began to push the boundaries to create more room for innovation

in dispute resolution.

The background to the development of a statutory model of

arbitration was that, in English common law, a collective agreement was

unenforceable at law; the only remedy for a breach was to strike or lock out.

This doctrine was imported to Canada in 1931 in another dubious decision of

the Privy Council, which again need not be dignified by further details. The

adoption of a statutory model circumvented the common law approach but

required elaboration to discover the extent of the new arbitral authority.

While there are many examples, the process is best illustrated by the

Polymer case.

An illegal strike had taken place, as was determined by a

board of arbitration, and the employer sought damages. The union objected

that arbitrators had no jurisdiction to award damages in such circumstances,

essentially because the collective agreement did not provide for such a

remedy. The board of arbitration, chaired by Professor Bora Laskin, later an

NAA member and ultimately Chief Justice of Canada, noted that this was not

a question of jurisdiction, but of what authority an arbitrator acting within

jurisdiction had to remedy a breach of the collective agreement.

The majority award included the following analysis of the effect of

the statutory mandate to resolve grievances by arbitration:

As a matter of history, collective agreements in

Canada had no legal force in their own right until the

advent of compulsory collective bargaining legislation.

Our Courts refused to assume original jurisdiction for their

enforcement and placed them outside of the legal

framework within which contractual obligations of

individuals were administered. The legislation, which in

the context of encouragement to collective bargaining

sought stability in employer-employee relations, envisaged

arbitration through a mutually accepted tribunal as a built-

in device for ensuring the realization of the rights and

For constitutional reasons, superior court judges in Canadian provinces are appointed and paid

by the federal government, while the provinces establish, fund and maintain the courts in which

they perform their duties. The terms of the appointment are established by federal legislation,

and an amendment to restrict outside paid activities ended most participation by judges in

arbitration.

Polymer Corp. v. Oil, Chemical & Atomic Workers (Collective Agreement Grievance), [1959]

O.L.A.A. No. 1, 10 L.A.C. 51.

140

enforcement of the obligations which were the products of

successful negotiation. Original jurisdiction without right

of appeal was vested in boards of arbitration under

legislative and consensual prescriptions for finality and for

binding determinations. In short, boards of arbitration

were entrusted with a duty of effective adjudication

differing in no way, save perhaps in the greater

responsibility conferred upon them, from the adjudicative

authority exercised by the ordinary Courts in civil cases of

breach of contract. That the adjudication was intended to

be remedial as well as declaratory could hardly be doubted.

Expeditious settlement of grievances, without undue

formality and without excessive cost, was no less a key to

successful collective bargaining in day-to-day

administration of collective agreements than the successful

negotiation of the agreements in the first place. Favourable

settlement where an employee was aggrieved meant not a

formal abstract declaration of his rights but affirmative

relief to give him his due according to the rights and

obligations of the collective agreement.

The majority went on to hold that it had authority to provide a

remedy for any breach of the collective agreement, since there could be no

right without a remedy as a matter of law. This outcome directly contradicted

an earlier decision in another case by one of the “judge” arbitrators.

Eventually, the award was upheld by the Supreme Court of Canada.

It is

the reasoning, rather than the outcome, that is remarkable, since it carved out

a place for arbitration far larger than the parties could have achieved without

the statutory mandate.

Two decades later, the Supreme Court of Canada cemented the

notion of exclusive arbitral authority in a case that came to it from the courts,

and not from an arbitrator. In St. Anne Nackawick Pulp & Paper v. CPU,

a court faced with an action for damages for an unlawful strike, that is one

contrary to the “peace obligation” forbidding strikes during the currency of a

collective agreement, doubted its jurisdiction to determine damages arising

from a breach of an agreement. The court declined jurisdiction, was upheld

on appeal, and the Supreme Court ultimately upheld that decision.

The Court noted that the unlawful strike was both a breach of the

collective agreement and of a statute, the labour relations legislation which

required the collective agreement provision. It also noted that a court had

issued an interlocutory injunction to end the strike. The decision concluded

that a court had jurisdiction to issue such an injunction to ensure that the law

was obeyed, but that it had no jurisdiction to entertain an action for damages:

What is left is an attitude of judicial deference to the

arbitration process. . . . It is based on the idea that if the courts

are available to the parties as an alternative forum, violence

At paragraph 9 of O.L.A.A.

Imbleau v. Laskin, [1962] S.C.R. 338, 1962 CanLII 3.

[1986] 1 SCR 704, 1986 CanLII 71 (SCC).

141

is done to a comprehensive statutory scheme designed to

govern all aspects of the relationship of the parties in a labour

relations setting. Arbitration ... is an integral part of that

scheme, and is clearly the forum preferred by the legislature

for resolution of disputes arising under collective

agreements. From the foregoing authorities, it might be said,

therefore, that the law has so evolved that it is appropriate to

hold that the grievance and arbitration procedures provided

for by the Act and embodied by legislative prescription in the

terms of a collective agreement provide the exclusive

recourse open to parties to the collective agreement for its

enforcement.

The courts were not always so receptive to arbitral expansiveness.

In the Port Arthur Shipbuilding decision,

the Supreme Court of Canada

upheld a lower court decision overturning an arbitration award in which

employees had given the employer just cause for discipline, but the discharge

imposed was found to be excessive, and a suspension should be substituted.

The result was that every jurisdiction in Canada amended the arbitration

provisions in the labour relations statute to overcome the result of the Court’s

decision. While the precise language differs, the Ontario provision is

illustrative:

(17) Where an arbitrator or arbitration board

determines that an employee has been discharged or

otherwise disciplined by an employer for cause and the

collective agreement does not contain a specific penalty for

the infraction that is the subject-matter of the arbitration,

the arbitrator or arbitration board may substitute such other

penalty for the discharge or discipline as to the arbitrator or

arbitration board seems just and reasonable in all the

circumstances.

This interaction between statutory amendment and judicial

determination is a significant feature of the development of arbitral authority

in Canada. Sometimes legislatures have acted to reinforce a judicial decision,

sometimes to overturn one.

Perhaps the high water mark of the Supreme Court’s doctrine of

exclusive arbitral authority is the Weber v. Ontario Hydro case.

employee was suspected of malingering while on sick leave, and private

investigators were retained, who gained access to the employee’s home on a

pretext. He was disciplined and his sick pay was terminated. His union filed

multiple grievances, but he also started an action in the courts claiming

damages for several torts, including trespass, and also under the Canadian

Charter of Rights and Freedoms, our constitutional “bill of rights” which

Id. at paragraph 20, CanLII.

Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85, 1968 CanLII 29. The arbitrator,

Harry Arthurs, is another towering presence in Canadian labour law. He was a member of the

NAA from 1967 to 1980.

Statutes of Ontario, 1995, c. 1, Sched. A, s. 48 (17).

[1995] 2 SCR 929, 1995 CanLII 108.

142

expressly provides for remedies to be determined by a “court of competent

jurisdiction.”

The employer moved to strike out the court proceedings.

The Supreme Court decided unanimously that the tort proceedings

were properly within the exclusive jurisdiction of an arbitrator, and that the

arbitration proceedings had been settled. Therefore, the court proceedings

were without jurisdiction and were struck out. The Court considered that the

available jurisdictional options were total concurrent jurisdiction between the

courts and arbitration, overlapping jurisdictions where matters beyond the

usual scope of arbitration could be taken up by the courts, or exclusive

jurisdiction for arbitrators of collective agreement disputes. The Court

adopted the exclusive jurisdiction model:

The final alternative is to accept that if the

difference between the parties arises from the collective

agreement, the claimant must proceed by arbitration and the

courts have no power to entertain an action in respect of that

dispute. There is no overlapping jurisdiction.

On this approach, the task of the judge or arbitrator

determining the appropriate forum for the proceedings

centres on whether the dispute or difference between the

parties arises out of the collective agreement. Two elements

must be considered: the dispute and the ambit of the

collective agreement.

In considering the dispute, the decision-maker must

attempt to define its "essential character” …. The fact that

the parties are employer and employee may not be

determinative. Similarly, the place of the conduct giving rise

to the dispute may not be conclusive; matters arising from the

collective agreement may occur off the workplace and

conversely, not everything that happens on the workplace

may arise from the collective agreement…. Sometimes the

time when the claim originated may be important…. In the

majority of cases the nature of the dispute will be clear; either

it had to do with the collective agreement or it did not. Some

cases, however, may be less than obvious. The question in

each case is whether the dispute, in its essential character,

arises from the interpretation, application, administration or

violation of the collective agreement.

A slim majority of the Court also held that arbitrators were, like other

statutory tribunals created by a legislature or Parliament, capable of being

“courts of competent jurisdiction” to grant remedies under the Charter “provided

they have jurisdiction over the parties and the subject matter of the dispute and

are empowered to make the orders sought.”

Id. at paragraphs 50-52, CanLII.

143

Needless to say, so broad an assignment of jurisdiction to arbitrators

frays at the edges from time to time, but the Weber decision is still central to the

authority of arbitrators to engage in a broad range of dispute resolution.

Interpretation and Application of Statutes

In the meantime, the courts considered the authority of arbitrators to

interpret statutory law. The conservative approach to arbitral authority would

have limited arbitrators to the four corners of the collective agreement, but

the existence of labour standards legislation, and later other legislation

bearing on the employment relationship and thus the interpretation of

collective agreement provisions, began to lead arbitrators to extend their

authority to consideration of the meaning of those statutes. In McLeod v.

Egan,

the Supreme Court of Canada overturned an arbitration award which

applied employment standards legislation relating to maximum hours of

work, which could in some cases be exceeded with the consent of the

employee or the employee’s agent. The majority decision found that the

arbitrator had erred in law on the face of the award in finding that the union

had consented to excess overtime on the employee’s behalf by entering into

a management rights clause that broadly granted the employer the right to

schedule work. Bora Laskin, by this time Chief Justice of Canada, in a

concurring decision, agreed with the outcome, but granted some grudging

authority of arbitrators to interpret statutes:

No doubt, a statute like a collective agreement or

any other document may present difficulties of

construction, may be ambiguous and may lend itself to two

different constructions neither of which may be thought to

be unreasonable. If that be the case, it nonetheless lies with

the Court, and ultimately with this Court, to determine

what meaning the statute should bear. That is not to say

that an arbitrator, in the course of his duty, should refrain

from construing a statute which is involved in the issues

that have been brought before him. In my opinion, he must

construe, but at the risk of having his construction set aside

by a Court as being wrong.

This decision led to a certain amount of confusion thereafter as to

exactly what an arbitrator was to do with a statute when it related directly to

the issues to be arbitrated. The solution was found again in statutory reform,

this time as part of an extensive overhaul of the British Columbia legislation

in 1973. A New Democratic Party

government had replaced a long serving

and much more conservative government, and with the encouragement of its

union supporters set out to replace the legislation the previous government

had enacted to govern collective bargaining. The replacement was a “root

and branch” operation, affecting all aspects of the statute, but the provisions

[1975] 1 S.C.R. 517, [1975] 1 R.C.S. 517, 1974 CanLII 12.

To avoid the risk of offence, I will explain simply that the NDP is a political party at the left

of the Canadian political spectrum, at times with considerable union support. The election of an

NDP government has led to progressive amendments to labour statutes in other provinces as

well, often reversed in whole or in part when a more conservative government replaced it.

144

relating to arbitration were particularly interesting, as they purported to

codify the best of the emerging jurisprudence on arbitral authority while

eliminating the worst.

The issue of statutory interpretation was dealt with in a new

provision:

For the purposes set out in section 82, an

arbitration board has the authority necessary to provide a

final and conclusive settlement of a dispute arising under a

collective agreement, and without limitation, may

…..

(g)

nterpret and apply any Act intended t

egulate the employment relationship of the persons bound

by a collective agreement, even though the Act's provisions

conflict with the terms of the collective agreement ….

Similar provisions have been enacted in some, but not all, other

provinces. Where there is no such provision, there does not seem to be a

drastic change in the treatment of statutes. The provision seems to have been

meant to be only an assurance that an arbitrator would be able to deal with

the entirety of a dispute, not merely the collective agreement aspect of it. As

will appear, the courts have themselves moved in the same direction, toward

a “one-stop shopping” approach to grievance arbitration.

In the Parry Sound case,

arbitrator Paula Knopf, an NAA member

and Vice-President in 2020-21, had disposed of a preliminary objection to

jurisdiction in a situation where an employee was terminated immediately

after returning from a pregnancy leave, but during her probationary period.

The collective agreement provided that termination during a probationary

period was not subject to the grievance and arbitration procedure. Human

rights legislation and employment standards legislation prohibited, in

different ways, discrimination on the basis of sex, including on the basis of

pregnancy and taking pregnancy leave. The award rejected the argument that

an arbitrator had to establish independent jurisdiction under the collective

agreement to deal with the subject matter of the dispute before invoking the

Ontario version of the provision quoted above.

A majority of the Supreme Court of Canada upheld the award,

finding that the substantive rights and obligations of employment-related

statutes are incorporated into collective agreements by the statutory

provision, and that an arbitrator had an independent jurisdiction to interpret

and apply the human rights legislation, even though a remedy might have

been available through a human rights tribunal. Interpretation and

The architect of the new legislation was Paul Weiler, a professor at Osgoode Hall Law School

in Toronto, who became adviser to the new government and the first Chair of the new Labour

Relations Board, and later a visiting professor and then a permanent member of faculty at

Harvard Law School. Weiler had been a prolific arbitrator in Ontario and was a member of the

NAA from 1970 to 1984. The story of the amendments is set out in Paul Weiler, Reconcilable

Differences: New Directions in Canadian Labour Law (1980). Chapter 3 deals with the

arbitration provisions.

Now Labour Relations Code, RSBC 1996, c. 244, section 89(g).

Parry Sound (District) Social Services Administration Board v. Ontario Public Service

Employees Union, Local 324 (O.P.S.E.U.), [2003] 2 S.C.R. 157, 2003 SCC 42 (CanLII).

145

application meant the authority to provide a remedy under the statute as well,

an important factor since human rights legislation in Canada often includes

individual remedies such as aggravated or punitive damages, and systemic

remedies aimed at promoting human rights in the particular workplace.

But the Court appears to go further. It suggests that the statutory

provision only reinforces what was stated in McLeod v. Egan

and that the

existence of such a provision is not essential to the incorporation of

employment-related statutes into the collective agreement. Subsequent

decisions in lower courts and academic commentary reinforce this view.

Further complication of the principle established in Parry Sound

resulted from a decision coming to the Court from Québec. Because matters

of private law in that province are governed by a civil law model, arbitrators

and the courts have drawn both procedural and substantive rules from the

Code civil du Québec

rather than the common law principles applied in

other provinces. In Isidore Garon Ltd.

and a companion case, the Court

dealt with two arbitration awards under two separate collective agreements

which considered, in the context of a business closure, two issues of the

application of statutes. In question was the extent to which general provisions

in the Code civil about the termination of an employment contract on

reasonable notice, and more specific provisions in labour standards

legislation, could be invoked to modify a provision in one of the two

collective agreements (the other was silent on this point) limiting the right to

notice of permanent lay-off.

The Court was split 4-3; the majority concluded that not every

provision of general law was incorporated into collective agreements for

arbitrators to apply, but only those “compatible” with the collective nature of

the unionized workplace. The minority would have found that arbitrators had

authority to apply any general law, subject only to the requirement in the

Code civil and in the labour relations legislation that a collective agreement

must comply with provisions relating to public order.

These developments were the subject of a discussion at the 2013

Vancouver Annual Meeting of the NAA, where it was compared with the

Pyett

decision in the U.S. Supreme Court. Chapter 14 of that year’s

proceedings included a contribution by Randi H. Abramsky, NAA Toronto,

who has arbitrated on both sides of the border and provided as a part of her

discussion an excellent personal comparison of the practice of arbitration in

each country, which has been extremely helpful in preparing this chapter.

The role of the Supreme Court of Canada in the expansion of arbitral

authority has also been the subject of discussion at NAA meetings. The 2008

Proceedings included an excellent review of the developments to that date by

Professor Denis Nadeau of the University of Ottawa, which expands

Supra note 17.

S.Q. 1991, c. 64.

Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés

de garage du Québec inc., [2006] 1 SCR 27, 2006 SCC 2 (CanLII).

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009).

Randi H. Abramsky, “The Adjudication of Statutory Claims: The Canadian Experience,” in

Arbitration 2013: A Tale of Two Countries, Proceedings of the 66th Annual Meeting, National

Academy of Arbitrators 292, 309, 312 (Matthew M. Franckiewicz et al. eds. 2014).

146

significantly on subjects touched on above.

And the 2013 Proceedings

provided the view from the other side in the Keynote Address of the then

Chief Justice of Canada, Beverley McLachlin.

Judicial Review

The other side of the coin of expanded jurisdiction though judicial

action was the possibility of increased judicial scrutiny of the way arbitrators

played with their new toys. Judicial review has always been a matter of

concern for administrative decision makers, not least because of the

unpredictability of how it might be exercised. Early legislative attempts to

control judicial review in labour matters included the use of “privative

clauses,” statutory prohibitions on judicial review in any of its common law

guises, which proved to be essentially useless against courts with a zeal to

ensure that labour adjudication suited their views of the rule of law and

justice, to such an extent that Bora Laskin, in his professorial role, wrote a

1952 article in the Canadian Bar Review subtitled “The Apparent Futility of

Privative Clauses.”

Onto this rather messy beginning, the Supreme Court began to

impose some discipline. Professor Nadeau, in his 2008 paper,

commented

that writing a summary of that process was a daunting task. I propose here

to provide a summary of his summary, more daunting still. I do so with brief

reference to two cases discussed by Nadeau, and one that was decided after

his paper was written. I then discuss the latest version of the Court’s notion

of deference, decided in 2019.

In the New Brunswick Liquor Corporation case,

the Court was

dealing with a public sector labour relations board, not an arbitrator, and

noted that the board had been assigned responsibility to interpret the statute

under which it had been created. The Court rejected the notion that in

interpreting a statute the board had to be held to a standard of correctness. It

also rejected an approach to judicial review that divided a decision into

preliminary or collateral matters, and treated them as essentially jurisdictional

in nature, thus justifying the intervention of a court. Rather, the Court created

a standard that resonated for years:

Put another way, was the Board's interpretation so

patently unreasonable that its construction cannot be

rationally supported by the relevant legislation and

demands intervention by the court upon review?

The “patently unreasonable” test was thus promulgated as the

standard by which administrative decisions must be judged. It was applied to

arbitration awards with various degrees of enthusiasm, although the McLeod

Denis Nadeau, “The Supreme Court of Canada and Grievance Arbitration: A Persistent Vision

of Legal Integration,” in Arbitration 2008: U.S. and Canadian Arbitration: Same Problems,

Different Approaches, Proceedings of the 61st Annual Meeting, National Academy of Arbitrators

9 -13 (Patrick Halter, Paul D. Staudohar & Jerrilou Cossack eds. 2009).

Beverley McLachlin, P.C., “Labour Arbitrators and the Courts: An Evolving Relationship,”

in Arbitration 2013: A Tale of Two Countries, Proceedings of the 66th Annual Meeting, National

Academy of Arbitrators 35 (Matthew M. Franckiewicz et al. eds. 2014).

Supra note 27.

C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 SCR 227, 1979 CanLII 23 (SCC).

147

v. Egan warning that if arbitrators were to interpret statutes, they might be

held to a standard of correctness sometimes led to that more stringent test

being applied to statutory interpretations, and even to “questions of law,” a

concept of considerable elasticity. Considerable attention was directed to the

exceptions to the patently unreasonable test over the years.

This lasted until 2008, when the Court decided Dunsmuir,

another

public service legislation case from New Brunswick, but this time involving

a decision of a grievance adjudicator about an employee not covered by a

collective agreement. The Court noted that three standards of review had

been invoked: correctness, reasonableness, and patent unreasonableness, and

that judicial review had been in a constant state of evolution over the years.

The Court criticized the patently unreasonable standard on the basis that it

would be unpalatable to require parties to accept an irrational decision

because it was not irrational enough. The Court concluded that

“reasonableness simpliciter” was the appropriate standard which, if met,

would lead a court to defer to the decision.

It is interesting that the Court also set out factors which would assist

in determining whether the reasonableness test would apply to any particular

finding of a decision maker. The existence of a privative clause would be

persuasive but not conclusive, because of the inherent jurisdiction of

reviewing courts. A discrete, special administrative scheme in which the

decision maker had particular expertise was another; notably, labour relations

was the only example of such a scheme mentioned. Finally, the nature of the

question being determined might lead to the application of the correctness

standard, as where a question of law of central importance to the legal system

and outside the special expertise was being answered, although determination

of a question of law that did not achieve that standard would be dealt with on

the reasonableness standard.

Two interesting developments in the Court’s jurisprudence have

arisen subsequent to the discussion at the 2008 NAA Annual Meeting. The

first was Nor-Man,

a judicial review of an arbitration award that invoked

the common-law or equitable remedy of estoppel, based on the union’s long-

standing acquiescence in an interpretation of the collective agreement that the

arbitrator found to be wrong. The Manitoba Superior Court applied a

reasonableness test; the appellate court applied a correctness test to the

arbitrator’s application of the principles of the general law. The Supreme

Court unanimously concluded that reasonableness was the appropriate

standard:

[44] Common law and equitable doctrines

emanate from the courts. But it hardly follows that

arbitrators lack either the legal authority or the expertise

required to adapt and apply them in a manner more

appropriate to the arbitration of disputes and grievances in

a labour relations context.

Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9 (CanLII).

Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care

Professionals, [2011] 3 SCR 616, 2011 SCC 59 (CanLII). Paragraph references are to CanLII.

148

[45] On the contrary, labour arbitrators are

authorized by their broad statutory and contractual

mandates ― and well equipped by their expertise ― to

adapt the legal and equitable doctrines they find relevant

within the contained sphere of arbitral creativity. To this

end, they may properly develop doctrines and fashion

remedies appropriate in their field, drawing inspiration

from general legal principles, the objectives and purposes

of the statutory scheme, the principles of labour relations,

the nature of the collective bargaining process, and the

factual matrix of the grievances of which they are seized.

This decision would seem to establish a high-water mark for the

independent authority of arbitrators to interpret and apply collective

agreements in the context of the general law, both statutory and common law,

with a generally free hand while enjoying deference from the courts. Of

course, such a conclusion would be too simple, and would leave

administrative law experts with little to do. To avoid such a vacuum, the

Court has had one more shot at defining what reasonableness means, although

not in a labour arbitration context.

At the end of 2019, the Court dealt with a decision of the Canadian

Registrar of Citizenship, cancelling the citizenship status of a Canadian-born

individual, in Vavilov.

The Court recognized that “Dunsmuir’s promise of

simplicity and predictability in this respect has not been fully realized,” and

set out to provide more simplicity and predictability. Whether that noble aim

was achieved has been the subject of much spilled ink and hot air ever since.

The Court did add a delicious metaphor to administrative law, gleaned from

earlier cases, that reasonableness review is not “a line-by-line treasure hunt

for error.” This is not the place to add to the commentary. I shall only venture

the firmly held but here unsupported opinion that not much will change, for

better or for worse, in relation to judicial review of arbitration awards.

The Weiler amendments to the British Columbia legislation

described above

included a novel approach to review of an arbitration

award. Section 98 of the legislation permits an arbitrator to refer any question

of the interpretation of the legislation or an issue of labour relations policy to

the Labour Relations Board for resolution. Section 99 provides for a party to

seek review of an arbitration award by the Labour Relations Board on the

basis that a party has been or may be denied a fair hearing, or that the award

is inconsistent with the principles expressed or implied in the Labour Code

or other labour statute. Finally, section 100 gives a residual jurisdiction

directly to the Court of Appeal (not the superior courts) to resolve any

question of general law “unrelated to a collective agreement, labour relations

or related determinations of fact,” and not assigned to the Labour Relations

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII). The

back-story to this decision is fascinating, although having nothing to do with labour arbitration.

The respondent Vavilov was the Canadian-born son of two deep-cover Soviet agents who came

to Canada to establish an identity that they would later use when they moved to the U.S. to

conduct espionage, at least until they were caught.

See https://www.nytimes.com/2019/12/19/world/canada/Alexander-Vavilov-canadian-

citizenship.amp.html.

See supra notes 19 and 20 and accompanying text.

149

Board under section 99. Other jurisdictions did not rush to adopt this

approach, as they did many of the other Weiler reforms.

Public Nature of Labour Arbitration in Canada

A major consequence of the development of a statutory basis for

arbitration is that the process is public, not private. Awards are required to

be filed with an office or agency of the Ministry or Department of Labour of

each jurisdiction, and they are completely public once that has taken place.

There have been at least three full-service commercial publishers of

labour arbitration awards, offering access to all, or a substantial proportion

of, the output of Canadian arbitrators over many decades. These services

have offered various value-added features, such as electronic searches,

digests or summaries, headnotes and keyword indexing, but essentially they

reproduce the awards of arbitrators for consumption by the public, or at least

that part of the public that has access to a subscription. CanLII, a free-access

website, provides access to at least the more recent decisions of arbitrators in

every jurisdiction. There are newsletters from unions, law firms, academics,

and employer organizations providing a more targeted view of what

arbitrators are writing and deciding. There are three major textbooks on

labour arbitration, plus another on evidence and procedure in arbitration, all

updated with varying degrees of attentiveness. This is augmented by a

similar structure for reporting French-language awards from Québec, as well

as a complementary analytical literature in French. A Canadian arbitrator thus

must decide cases in public, for a wide audience.

While arbitrators have some regard for privacy concerns, whether

personal privacy or the institutional interests of unions or employers, there

are limits to the extent that such concerns can be implemented. The Supreme

Court of Canada has developed an “open-court” doctrine that appears to

apply to labour arbitration, although it is usually expressly followed only by

public sector adjudicators, particularly in the federal sector. An example of

the extent to which this doctrine has been internalized by tribunals is found

in the recent Olynik

decision of an adjudicator in the federal public service

tribunal. Even a plausible case for anonymization to avoid the possibility of

personal danger because of internet activity was found insufficient in that

case.

The interplay between privacy concerns and access to justice,

including access to information about how justice is being dispensed, has still

to be worked out in Canada. Arbitrators can choose their words carefully and

can suppress some details without attracting censure from the courts, but

privacy concerns still attract less attention than they deserve, in my view,

particularly when awards can be searched on-line without charge.

Procedural Differences

There are other differences between the two countries, particularly

at the procedural level. One of the most significant is the greater prevalence

of mediation in Canada. To some extent this was propelled by arbitrators

who recognized that a voluntary resolution was always more valuable that

Olynik v. Canada Revenue Agency, 2020 FPSLREB 80 (CanLII).

150

one imposed from outside. In addition, however, several provinces have

enacted provisions that permit mediation to take place without risk of losing

jurisdiction if unsuccessful. The Ontario provision is typical:

(14)

n arbitrator or the chair of an arbitration

board, as the case may be, may mediate the differences

between the parties at any stage in the proceedings with the

consent of the parties. If mediation is not successful, the

arbitrator or arbitration board retains the power to

determine the difference by arbitration.

All provincial labour legislation and the federal statute as well

include a list of procedural requirements and powers. Requirements typically

include the obligation to file a copy of the award with the designated authority

and may also provide time limits for the completion of an award following

the hearing, with provisions for consent to extend those limits, and with

processes for “encouraging” a tardy arbitrator to issue an award. Typically,

however, an arbitrator does not lose jurisdiction for delay, and such a result

would be counterproductive.

Authority to issue oral awards or awards without reasons at the

request of a party is a common feature, with a requirement that reasons be

provided thereafter. The authority to issue interim decisions and orders is

also usual, sometimes with a limitation on certain kinds of orders, such as an

order for reinstatement of a discharged employee pending arbitration.

Arbitral powers include such procedural matters as the power to

require provision of particulars (details of more general allegations required

to permit a party to respond) and produce documents, thus permitting a form

of discovery. Control of the process includes authority to compel witnesses

and require them to testify under oath or affirmation, and to administer oaths

and affirmations, as well as to fix hearing dates and locations. More

important are exemptions from the formality of judicial decision-making.

Arbitrators typically have a discretion to accept and rely on evidence even

where it would not be admissible in a court of law. A little-used provision

permits an arbitrator to enter any premises where work is being done or

people are employed, to inspect those premises, and to interrogate any person

in relation to matters in dispute in the arbitration.

Arbitrators also are granted discretion to relieve against time limits

or other procedural restrictions, on such terms as appear just. The discretion

to substitute disciplinary penalties, and the authority to grant and assess

damages have been discussed above.

Some provinces have adopted the British Columbia model described

above and have given arbitrators instructions to determine the real substance

of matters in dispute and not to be bound by a strict legal interpretation of the

issues.

Quite apart from the statutory differences, there are other procedural

differences among Canadian jurisdictions, as may also be the case among

regions in the U.S.. In British Columbia, for example, the role of the Labour

Relations Board in resolving issues of labour relations policy often leads to

S.O. 1995, c. 1, Sched. A, s. 48 (14).

151

reliance by arbitrators on one or another of the Board’s pronouncements,

rather than following arbitral consensus. In Québec, there are more dramatic

differences, quite apart from the language in which hearings are conducted

and awards are written (hearings and awards in French are also a feature of

the federal sector and New Brunswick, where French is an official language,

and Ontario, where it has a more limited official status). I have referred to

the role of the Code civil du Québec, which is perhaps more central than is

the common law in the other provinces on both procedural and substantive

matters. There is also a practice in disciplinary cases, seen nowhere else in

Canada, for an employer to call the disciplined employee as one of its

witnesses, often the first, thus permitting a kind of discovery or deposition of

the grieving individual.

Canadians in the NAA

Personalities

Since the Canadian content in NAA: Fifty Years in the World of

Work was mostly limited to a discussion of participation by Canadians in the

NAA, I have devoted some of this chapter to an update on the personal

aspects of NAA membership. I have referred above to the NAA affiliation

of some of the individuals quoted or referred to, beginning with H.D. “Bus”

Woods.

Woods was a formidable presence in Canadian Industrial

Relations, formerly the Director of the Centre for Industrial Relations at

McGill University, and later Dean of Arts and Sciences at the same

institution. He was the Chair of the federal Task Force on Labour Relations,

which reported in 1868. He was one of the first two Canadian members,

joining in 1955 along with Jacob Finkelman, another stalwart. Woods was

also the first Canadian President of the NAA, in 1976.

Many Canadian members have had distinguished records of service

to the NAA, but the Presidency is, of course, the pinnacle of achievement.

The second Canadian President was J.F.W. “Ted” Weatherill, in 1995. He

was followed by Michel G. Picher in 2008 and Allen Ponak in 2015. As this

is being written, President-Elect Susan L. Stewart is to assume the Presidency

in 2021.

Bora Laskin, although never President, was admitted in 1963, and is

said in Fifty Years to have remained an NAA member even during his tenure

as Chief Justice of Canada. This assertion was based on interviews with

others, but in fact the NAA records show that he remained a member until his

death in 1984, while still Chief Justice.

I have attempted to mine the oral history interviews of these and

other members to provide some detail for the discussion that follows about

the role of Canadians in the NAA, and the extent to which arbitration in our

two countries is interactive, despite the differences of structure and policy

discussed above.

See supra note 4. While this spelling of his nickname seems to be the preferred one, it is

pronounced “Buzz.”

152

Cross-border Arbitration

A very interesting effect of the differences between the two

countries is the extent to which the jurisprudence has grown apart over the

years. In the Polymer award

, Bora Laskin observed that he had been

presented with “a number of arbitration cases in both Canada and the U.S.

and to several Court decisions in the U.S.” I recall when beginning practice

in the 1970s that some U.S. cases were presented from time to time, and some

Canadian awards relied on U.S. precedent. My impression is that this has

long since ceased to be the case.

A very unscientific survey of NAA members using the e-mail list

elicited only one response affirming having been presented with Canadian

authorities in a U.S. arbitration, and a smattering of incidents of U.S.

authorities in a Canadian arbitration. Possibly because of the differences

identified above, there is now very little engagement on a doctrinal level

between the two countries. An exception to this is some industry-specific

jurisprudence, such as seniority list integration after airline mergers, where

precedents are traded back and forth.

The same survey revealed that very few arbitrators active in one of

the two countries have been appointed to arbitrate in the other. There are

some individual exceptions to this finding, which I discuss below, but cross-

border arbitration is rare to the point of invisibility. No doubt there are

reasons relating to immigration issues which militate against such activity.

In a “Fireside Chat” in 2009,

Ted Weatherill recalled that he had

done a few arbitrations in the U.S. some years before, and that he recalled

“carpet-bagging American lawyers” appearing in arbitration proceedings in

Ontario. I also recall the occasional U.S. attorney, usually appearing on

behalf of the parent company of a local branch plant, and the occasional

human resources person from head office as well, but that was also in the

1970s. Weatherill was interviewed by John Kagel, who noted that he had

done arbitrations in British Columbia, and he confirmed that in response to

my survey. Whether there are other examples of what might be called

“casual” cross-border arbitration, there are likely to be few. More formal

cross-border activity is, however, somewhat more common.

Perhaps the most frequent engagement of arbitrators and counsel

across the border was prompted by the National Hockey League and Major

League Baseball. Both contract arbitrators and salary arbitrators were

appointed from both countries, and attorneys from both countries were

involved. This too is an exception to the general rule that while that border

may be undefended, it is only marginally permeable.

The possibility of more formal cross-border arbitration practices is

illustrated by three current arbitrators who have established practices in both

countries. Randi Abramsky (NAA Toronto), Margo R. Newman (NAA

Toronto and Chicago) and Sylvia Skratek (NAA Vancouver and Seattle) all

began arbitrating in the U.S., and established themselves again after moving

to Canada for personal or family reasons. From a Canadian point of view,

See supra note 8.

“Fireside Chat with J.F.W. ‘Ted’ Weatherill,” in Arbitration 2009: Due Process in the

Workplace, Proceedings of the 62d Annual Meeting, National Academy of Arbitrators 421 (Paul

taudohar et al. eds. 2010).

153

they are simply respected Canadian arbitrators, and from the U.S. point of

view they are equally respected American arbitrators. They appear each to

have separate practices in two countries but operated by the same individual.

The conclusion that can be drawn from their success is that, while there may

be structural differences between the two systems, and procedural differences

in how hearings are conducted,

grievance arbitration involves the same

personal qualities and professional skills on both sides of the border.

These three were preceded by Frances Bairstow in an earlier

generation, whose career took the opposite direction. After beginning a

career in industrial relations in her native United States, mostly as an

economist and educator but on the fringes of arbitration, she relocated to

Canada for family reasons, eventually winding up at McGill University and

working for “Bus” Woods at the Centre for Industrial Relations, first in an

administrative position and then as an academic. She began arbitrating in

Canada in 1962 and became a member of the NAA in 1972. She eventually

succeeded Woods as Director at the Centre, and influenced generations of

students, including former NAA President Allen Ponak. While still in

Montreal, she expanded her practice into the New England area, and after

retirement moved to Florida, where she established anew her arbitration

practice.

As have her current successors, she demonstrated that

professional qualifications and talent will work equally well in either country.

The structure and the procedures may differ but the job is essentially the

same.

Canadian Region

That conclusion about the underlying identity of the job of arbitrator

appears to account for the continuing attraction of the NAA for Canadian

arbitrators. There was traditionally no real professional advantage to NAA

membership in Canada: inclusion on panels or being named in collective

agreements does not flow from membership, as it appears to do in the U.S.

Inscription on a provincial arbitrators list, which usually results in listing on

the federal list as well, is sufficient, along with personal reputation, to found

a career. That has changed somewhat through sports arbitration; both the

hockey and baseball arbitration regimes require NAA membership. Yet

Canadians continue to apply for membership, usually encouraged to do so by

more senior colleagues who are already members. That the two systems

differ does not detract from the close professional ties provided by the NAA.

Perhaps surprisingly, the Canadian Region of the NAA is the only

national organization of labour arbitrators in Canada. Ted Weatherill

recounted that the Region was founded by presidential fiat in 1974, and he

was its first Chair, with a membership of eleven.

From the beginning, the

Region used its meetings to bring together arbitrators from across the country,

Randi Abramsky has provided a comparative review of arbitral practice in the two countries

as part of her Proceedings article cited supra note 26. Margo Newman provided another

comparison in her introduction to “Comparative Arbitral Outcomes,” in Arbitration 2008, supra

note 27, at 241. All three have provided interviews and correspondence to assist in preparing

this chapter.

An interview of Frances Bairstow by Joyce Najita in 1994 is available at

www.naarb.org>interviews>FrancesBairstow.

Supra note 39 at 430-31.

154

NAA members or not. He noted that the advent of Fall Educational Meetings

diminished the appetite for a separate regional meeting, and that the practice

of scheduling a Canadian session at the Annual Meeting (which is open to

nonmembers) replaced them. More recently, regional meetings have been

organized again, and have been well attended. They have served the purpose

of bringing arbitrators of all experience levels together on a national basis to

permit the dissemination of professional and ethical considerations to

everyone practicing arbitration. They may also have served, along with open

attendance at NAA Annual Meetings, to assist in recruiting new members for

the Canadian Region.

Perhaps the most important demonstration of the power of the

Canadian Region came when an Ontario government, of a less progressive

stripe, decided in 1998 that interest arbitration in the public sector (much of

which has been prohibited from striking for decades) would result in

outcomes more favourable to the government purse if arbitrators were drawn

not from the pool of established grievance arbitrators, but from a new

selection of retired judges, a remarkably backward-looking idea given the

early history of arbitration in Canada.

Two major unions with considerable representation in the health

care sector decided to challenge the move by bringing an application for

judicial review of such appointments of persons as arbitrators on the basis

that they were not “qualified to act” as required by the legislation, having no

expertise in labour relations or interest arbitration and no demonstrated

acceptability to both parties, as would be confirmed by membership on the

provincial list, which was overseen by a tripartite committee. The union was

unsuccessful at the application stage but succeeded at the Ontario Court of

Appeal. The government appealed to the Supreme Court of Canada.

At that stage, the possibility of intervention in the appeal became a

problem. The Supreme Court was reasonably hospitable to public interest

interventions, but the problem arose from the situation that the obvious

intervenor, the Ontario Labour-Management Arbitrators Association, was not

entirely immune from the accusation that it was only trying to preserve

income opportunities for its members. As President of the OLMAA at the

time, I was reluctant to have the positions we could reasonably put forward

be dismissed on the grounds of perceived self-interest. One of the allegations

against the Minister of Labour (the nominal respondent, since he had

appointed the contested persons) was that he, and the government, had a

“significant financial interest” in the outcome; it was too easy to turn that

allegation against OLMAA. In addition, a part of the record in the case came

from correspondence between the Minister and OLMAA. After some

agonizing, a solution emerged: the intervenor would be the National

Academy of Arbitrators (Canadian Region).

Apparently because NAA policy requires that the organization be

represented by a member when it seeks amicus curiae status, Michel Picher

agreed that he would act as counsel for the Region at the Court. This was an

unaccustomed role for Michel,

but one he was eager to assume as an active

His recollection of these events is recorded in “Fireside Chat with Pamela Picher and Michel

Picher,” in Arbitration 2013, supra note 28, at 439. An indication of how rare such an appearance

was for Michel is that, as he notes, id. at 454, he had to borrow my formal court attire to appear.

Fortunately, it had suffered little wear at my hands.

155

member of both the NAA and the Region. He sought approval from the

national office of the Academy, and then President John Kagel approved the

intervention. Thus, it was not just the Canadian Region, representing

arbitrators from across Canada, that was intervening; it was the Academy

representing arbitrators across two countries.

In the result, by a 6-3 majority, the Court denied the appeal, although

for narrower reasons than those of the Court of Appeal

. At this point, the

Court was still applying the “patently unreasonable” test in judicial review,

and that was the standard which it applied to the Minister’s exercise of

discretion in appointments. This was the outcome:

183 I accept as correct the Minister’s

February 2, 1998 statement that the [statutory] process

must be “perceive[d] . . . as neutral and credible”. I also

accept that neutrality, and the perception of neutrality, is

bound up with an arbitrator’s “training, experience and

mutual acceptability” … I conclude as well that the

Minister’s approach was antithetical to credibility because

he excluded key criteria (labour relations expertise and

broad acceptability) and substituted another criterion (prior

judicial experience) which, while relevant, was not

sufficient to comply with his legislative mandate even as

he, in his February 2, 1998 letter, defined his mandate.

184 Speaking broadly, “the perspective”

within which the [legislation] was intended by the

legislature to operate …. is to secure industrial peace in

hospitals and nursing homes. The [legislation] imposes a

compulsory yet mutually tolerable procedure (if properly

administered) to resolve the differences between

employers and employees without disrupting patient

care. In that context, appointment of an inexpert and

inexperienced chairperson who is not seen as broadly

acceptable in the labour relations community is a defect in

approach that is both immediate and obvious. In my view,

with respect, having regard to what I believe to be the

legislative intent manifested in the [legislation] the

Minister’s approach to the … appointments was patently

unreasonable.

The Court rejected the argument advanced by the unions at the Court

of Appeal (but which the Region intervention did not support, and from

which the unions retreated) that retired judges presented a problem of

institutional bias. The Court overruled the Court of Appeal on this point and

noted that some retired judges might well possess both labour relations

expertise and be broadly acceptable in the labour relations community.

Further challenges to continuing arbitrations, therefore, had to be on a case-

The Factum of the NAA (the equivalent of an “amicus brief”) is available at

www.naarb.org/amicus-briefs/.

C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29 (CanLII).

Paragraph numbering is from CanLII.

156

by-case basis. Arbitrators were not concerned about this aspect of the

decision. The conclusions set out in the quoted paragraphs were everything

that we could have asked for.

Bolstered by this successful outcome, when the Vavilov case

came

to the Supreme Court the National Academy of Arbitrators itself, not just the

Canadian Region, intervened. It was joined by the Ontario Labour-

Management Arbitrators Association and the Conférence des arbitres du

Québec, the two largest provincial associations. All three organizations were

represented by Susan L. Stewart, President-Elect at the time of writing.

Unlike the previous intervention, where the Canadian Bar Association was

the only other intervenor, Vavilov attracted a staggering 31 intervenors,

including four provincial attorneys-general. It was clearly the place to be for

an organization with a central interest in judicial review such as the NAA.

Conclusion

Despite the differences in our structures and procedures, arbitrators

on both sides of the border have far more in common than those differences

might suggest. We share pride in our profession and in our ethical standards,

and we share the same goals for the parties to collective bargaining. We will

have worked and studied together for most of the 75 years this volume and

its predecessor describe, and I hope for the next 25 years as well. I expect

that the centennial edition of this publication will come to similar

conclusions.

Supra note 33.

Jane Devlin, Gil Vernon, Paula Knopf, and Allen Ponak

Michel and Pamela Picher

Milton Rubin and J.F.W. Weatherill

157

Chapter 9

NEW DIRECTIONS: THE ACADEMY’S ENCOUNTER

WITH EMPLOYMENT ARBITRATION

Dennis R. Nolan

The Academy was under some stress by the time it approached its

fiftieth birthday in 1997. As successful as its first half century had been,

union membership had been declining since the mid-1970s both in absolute

numbers and as a percentage of the workforce. The number of labor

arbitrations naturally dropped proportionately.

Those trends had little

immediate effect on the Academy because parties selected established

arbitrators to hear what cases they had. Eventually, however, the overall

decline in arbitration combined with other factors to shrink the Academy’s

membership and threaten its future. Existing Academy members aged and

began to stop arbitrating, while the decline in work made it more difficult for

newer arbitrators to meet the Academy’s membership standards. Finally, as

traditional labor arbitration, Academy members’ bread and butter, declined,

new forms of workplace dispute resolution (particularly individual nonunion

employment arbitration) arose and expanded.

This chapter describes the Academy’s reactions to those

developments during the 1990s and early 2000s. The culmination was the

most contentious issue in the Academy’s history, a struggle over amending

the Academy’s governing documents to broaden the scope of the Academy’s

activities.

Readers should know that this is a personal recounting by someone

who was deeply involved in the debates and decisions. It therefore reflects

my own contemporaneous understandings of the events. I began drafting this

memoir shortly after the 2008 Annual Meeting in Ottawa in which the

Academy voted to adopt the proposed changes. The substance was

completed in early 2009; subsequent changes have mainly been for clarity

and style.

I begin by summarizing the rise of individual employment

arbitration prompted by the Supreme Court’s decision in Gilmer v.

Interstate/Johnson Lane Corp.

I then detail the Academy’s first efforts to

investigate the impact of employment arbitration on our work and our

organization before the creation of the New Directions Committee (NDC) in

2005. The bulk of the chapter describes the NDC’s procedures and

recommendations, the opposition to those recommendations, and the

Academy’s ultimate decisions.

See Gladys W. Gruenberg, Joyce M. Najita & Dennis R. Nolan, The National Academy of

Arbitrators: Fifty Years in the World of Work (1997).

Dennis R. Nolan & Roger I. Abrams, “Trends in Private Sector Grievance Arbitration,” in

Labor Arbitration Under Fire 42, 47-52 (James L. Stern & Joyce M. Najita eds. 1997).

500 U.S. 20 (1991).

158

The Rise of Employment Arbitration

The catalyst for modern employment arbitration and the Academy’s

encounter with that field of dispute resolution was a lawsuit brought by

stockbroker Robert Gilmer against the company that had terminated him,

Interstate/Johnson Lane. The New York Stock Exchange had long required

brokers to agree to arbitration of disputes with their employers. Although

aimed primarily at disputes over customers’ accounts, the wording of the

arbitration agreement was broad enough to cover routine employment

disputes. Gilmer signed that promise when he registered with the NYSE in

1981.

In 1987 Interstate/Johnson Lane terminated Gilmer. He filed an

EEOC charge, then a lawsuit in 1988. His employer sought to force the suit

into arbitration pursuant to his NYSE registration agreement. Gilmer

prevailed at the district court but on appeal the Fourth Circuit compelled

arbitration.

On May 13, 1991, the Supreme Court affirmed the Fourth

Circuit’s decision and opened the new field of employment arbitration.

Most readers of this book are familiar with the case and for immediate

purposes the details are not critical. In brief, however, the Supreme Court

held that the Federal Arbitration Act applies to contracts such as the one

Gilmer signed with the NYSE.

The Academy’s Initial Reactions

Appointment of the Beck Committee. Before the Gilmer decision

there was little if any discussion within the Academy about employment

arbitration because there was so little of it. The first Academy leader to spot

employment arbitration’s significance was Howard Block. When Howard

became President-Elect of the Academy in 1989, he asked members of the

Board of Governors for suggestions about what he might accomplish during

his term. Mike Beck of Seattle did not do any nonunion employment

arbitrations himself but had talked with younger members who had. He

suggested that Howard look into alternative labor dispute resolution issues.

Howard liked the idea and in May of 1990, as he was about to become

President, he asked Mike to chair a special committee on that subject. He

asked the committee to examine the nascent field of employment arbitration

and recommend possible Academy action.

Burdened with the unwieldy name of the Committee on the

Academy’s Role, If Any, With Regard to Alternative Dispute Resolution

Procedures, the group first become known as the “If Any” Committee and

then the Beck Committee after its chair. President Block’s charge to the

committee showed that the Academy was beginning to realize the potential

significance of employment arbitration:

In recent years, an increasing number of Academy

members have been asked to serve in cases involving:

(1) arbitration of grievances in unorganized plants;

(2) mediation of grievance and interest disputes; and

(3) wrongful termination. It is time, I think, to determine

Gilmer v. Interstate/Johnson Lane Corp., 895 F.2d 195 (4th Cir. 1990).

Supra note 3.

159

whether the Academy can play a constructive role in one

or more of these areas. In particular, I have in mind the

consideration of the practical and ethical questions

confronted by our members as well as the additional

training and education that might be indicated in order to

broaden a labor arbitrator’s basic skills in these areas.

The Beck Committee began a long investigation that soon led to a

survey of the membership about the nature of their work. Slightly over 200

members responded to the survey. About 28 percent of those who replied

had already performed at least one arbitration involving employees covered

by the National Labor Relations Act or other collective bargaining laws, but

not yet represented by a union. About 17 percent, some of whom were also

in the first group, had decided cases involving supervisory or managerial

employees not subject to unionization.

The Committee submitted a preliminary report to the Board in May

1992. Because the Committee had originally been established for only two

years from its creation in 1990, President Tony Sinicropi extended its life for

an additional year. The Committee solicited members’ written comments and

conducted an open forum at the October 1992 Fall Educational Conference

(FEC). Even though employment arbitration was still new, many members

already had strong feelings on the subject and expressed those feelings both

in their written comments and at the open forum.

The Sinicropi Address. President Block’s 1991 presidential address

(delivered too soon after the Supreme Court’s Gilmer decision to assess its

significance) alluded to the possibility of using arbitration as a forum for

resolution of disputes under a federal unjust-dismissal statute that he

advocated. The first thorough discussion of employment arbitration in a

presidential address, however, was President Sinicropi’s address in May of

1992. With a year to consider the Gilmer decision, Sinicropi presciently

recognized what it could mean for the Academy and its members. His

address forthrightly called for the Academy to take a leadership role in the

development of employment arbitration. The last paragraph of his

Introduction stated the urgency he felt: “We cannot postpone for a moment

engaging and beginning to resolve the important issues that the future

presents for our profession and the National Academy of Arbitrators.”

The Beck Committee Report and Its Results. The Beck Committee

submitted its final report to the Board in 1993. It recommended a

“significantly broader” role for the Academy in nontraditional workplace

dispute resolution. The Committee was surprisingly far-sighted. It

recognized that the phrase “labor-management” in our governing documents

referred solely to collective bargaining relationships. The report then said it

was time to change that limited focus:

Anthony V. Sinicropi, “Presidential Address: The Future of Labor Arbitration: Problems,

Prospects, and Opportunities,” in Arbitration 1992: Improving Arbitral and Advocacy Skills,

Proceedings of the 45th Annual Meeting, National Academy of Arbitrators 1, 3 (Gladys W.

Gruenberg ed.1993).

160

However, today, the evolving nature of the field

to include employment relations and the increasing activity

of our members in that arena have convinced the

Committee that a broadening of our role is warranted.

The Committee therefore recommended adding the phrase “and

employment” after “labor-management” in Article II of our Constitution.

Article II states the Academy’s purpose. Adding those two words would

overnight have changed the Academy from a labor arbitrators’ professional

association to an academy of labor and employment arbitrators. The

Committee wrote that if the Academy’s role were expanded to include

employment arbitration, “then the Code should be revised to include

coverage of our members performing these arbitrations.”

Referring to the sensitivity some members had expressed about

moving beyond collective bargaining, the Committee emphasized:

[T]here is no intent to abandon our basic role. By

leaving in place the phrase “labor-management,” our focus

as an organization shall remain on collective bargaining.

We merely recommend that the Academy’s purposes be

expanded to include employment disputes beyond the

collective bargaining context.

The report compared its recommendation to the then-recent name change of

the ABA’s Section on Labor Law to the Section on Labor and Employment

Law.

The Beck Committee did not recommend any change in our

membership standards because it believed the Academy should continue to

be a society of those whose acceptability was demonstrated by joint

selections of labor and management. Anticipating a change that would be

adopted only after a recommendation from another committee many years

later, the Beck Committee noted that the Membership Committee always

considered the totality of a member’s experience, and said that one’s

experience “manifestly includes” nonunion ADR activities. Still, there was

an inherent contradiction in the Committee’s approach. It sought to

incorporate employment arbitration into an Academy composed of arbitrators

elevated only by their labor-management arbitration experience. That might

produce an Academy for employment and labor arbitrators but only of labor

arbitrators.

The Board of Governors adopted the Beck Committee’s report.

When it came time to recommend changes in the Constitution, however, the

Board, by then under a new President, David Feller, was less adventuresome.

Rather than recommend changing the Academy’s statement of purpose to

apply equally to labor arbitration and employment arbitration, the proposal it

sent to the membership for a vote at the 1994 Annual Meeting merely added

“employment disputes” to a later phrase about promoting “study and

understanding.”

161

Subsequent Academy Actions

The Beck Report and related events contributed to some significant

developments.

Constitutional Amendment. In 1994, the year following the Beck

Committee’s final report, the Academy amended its Constitution to provide

for the “study and understanding” of employment disputes. It did not attempt

to extend Academy jurisdiction to cover employment arbitration, much less

welcome employment arbitrators into its ranks. In short, the Academy agreed

to study employment arbitration but not to make it one of the Academy’s

purposes.

That same year, Walter Gershenfeld delivered a paper calling for

exactly what the Beck Committee decided not to recommend — that is, that

the Academy should fully incorporate the field of employment arbitration.

Code Amendment. The Academy also amended the Preamble to the

Code of Professional Responsibility for Arbitrators of Labor-Management

Disputes so that it would apply to nonunion arbitration cases. Because it did

not change any substantive Code provisions, however, the Code did not (and

still does not) address any of the peculiar ethical problems raised by

employment arbitration. Today’s Code thus covers employment arbitration

like an ill-fitting coat. Moreover, because the mechanism for interpreting and

enforcing the Code is the Academy’s Committee on Professional

Responsibility and Grievances, there is no way to apply it to nonmembers.

Programs. Program committees for the Fall and Annual Meetings

began to include more sessions dealing with nonunion employment disputes.

Due Process Protocol. In 1995 a blue ribbon committee of

advocates and neutrals, under the prodding and leadership of former

Academy President Arnold Zack, adopted a document titled “A Due Process

Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of

the Employment Relationship.” While extremely limited in scope (applying,

for example, only to statutory disputes) and content (it was silent on many of

the most important procedural and remedial questions), the Due Process

Protocol did establish some fundamental requirements for a fair employment

arbitration system. Because major designating agencies like JAMS and the

AAA later incorporated the Protocol into their own rules, it has had a salutary

effect on the process. The Academy also endorsed the Protocol.

Policy Statement and Guidelines for Members. In 1996 President

George Nicolau and President-Elect Milt Rubin appointed a committee to

draft a policy statement on mandatory arbitration agreements imposed by

employers on their nonunion employees as a condition of employment, as

well as a set of guidelines for arbitrators who handled such cases. The Special

Committee on Employment-Related Dispute Resolution, chaired by Michel

Picher and often referred to as the Picher Committee, submitted its

recommendations to the Board in 1997. The Board adopted the

recommended Statement of Principle in May of that year. The key language

was this statement: “The National Academy of Arbitrators opposes

mandatory employment arbitration as a condition of employment… for the

Walter J. Gershenfeld, “New Role for Labor Arbitrators: Part I. Will Arbitrators’ Work Really

Be Different?” in Arbitration 1994: Controversy and Continuity, Proceedings of the 47th Annual

Meeting, National Academy of Arbitrators 275 (Gladys W. Gruenberg ed. 1995).

162

pursuit of statutory rights.” Recognizing that the Supreme Court had upheld

the legality of those agreements, however, the Board did not attempt to

prevent members from serving under the agreements the Statement declared

improper. Instead, it recommended that they consider the Picher

Committee’s Guidelines on Arbitration of Statutory Claims Under Employer-

Promulgated Systems.

The Academy adopted the Policy Statement and the Guidelines at

its annual meeting that year. Jack Clarke and I were the only ones to speak

against the Policy Statement. We both argued that it was inappropriate for

the Academy to condemn predispute arbitration agreements as unfair and still

permit members to handle cases under that system.

The Academy’s opposition to predispute arbitration agreements had

no discernible effect. With consistent court support, employment arbitration

continued to spread.

The Cornell Survey. In 1998 the Academy asked the Picher

Committee to undertake a survey of Academy members about their

professional activities, specifically including nontraditional employment

dispute resolution activities. The Academy engaged the Cornell/PERC

Institute on Conflict Resolution to conduct a survey about members’

demographics and arbitration activities. The product was The Arbitration

Profession in Transition: A Survey of the National Academy of Arbitrators

(2000). The response rate was extraordinarily high (86 percent of those

eligible to participate) and the results were therefore relatively reliable. Of

interest in this discussion is the report’s finding that nearly 46 percent of

Academy members had completed at least some employment arbitration

cases and another 33 percent would accept such cases if they included

adequate due process protections.

Quo Vadis

Employment arbitration continued to grow in numbers and

importance in the 1990s, just as labor arbitrations were declining and the

Academy’s membership seemed to be shrinking. Although the Academy

supported or created useful documents relevant to employment arbitration

like the Protocol and the Guidelines, it still did not claim any authority to

represent employment arbitrators.

Fortuitously, the Program Committee for the 1999 Annual Meeting

chose the theme of Quo Vadis. When that committee began its work in 1997,

I proposed a paper examining whether the Academy should embrace

employment arbitration, even to the extent of counting employment cases

toward our membership requirements. The committee accepted my proposal

and gave me the keynote spot in the members-only day of the meeting.

My paper, “The National Academy of Labor and Employment

Arbitrators?” answered its titular question with a firm but qualified Yes.

While Academy membership was one of the major reasons for that

conclusion (membership had fallen from its 1989 peak of 702 to just 633 at

Dennis R. Nolan, “The National Academy of Labor and Employment Arbitrators?” in

Arbitration 1999: Quo Vadis, The Future of Collective Bargaining and its Impact on Dispute

Resolution, Proceedings of the 52d Annual Meeting, National Academy of Arbitrators 52 (Steven

Briggs & Jay E. Grenig eds. 2000).

163

the time I spoke), I was also concerned that the Academy would lose much

of its influence if it limited its activities to a shrinking field and that it would

forfeit the opportunity to shape the development of a new and growing field.

I tried to capture some of Tony Sinicropi’s urgency (this was seven years

after the Sinicropi address and the Academy had still not even cracked its

door to employment arbitration) by quoting his “not a moment to lose”

remark and concluding that we should “move quickly and decisively toward

becoming a National Academy of Labor and Employment Arbitrators.”

While generally well received, my paper did not provoke the

broadening of the Academy’s scope that I had hoped. The division within

the Academy over the topic of employment arbitration remained wide. Small

wonder then, that the Supreme Court did not accept the Academy’s opinions

about employment arbitration.

In 2000 the Academy submitted an amicus brief opposing

predispute arbitration agreements in Circuit City Stores, Inc. v. Adams,

case involving the meaning of Section 1 of the Federal Arbitration Act. That

section excludes from the FAA’s reach “contracts of employment of seamen,

railroad employees, or any other class of workers engaged in foreign or

interstate commerce.”

The question before the Court was whether the word

“commerce” in Section 1 meant “commerce” in the modern sense, which

would cover almost the entire workforce, or in the older sense, which would

apply only to those engaged in the transportation of goods or persons. By

2000 virtually all circuit courts to rule on the question had adopted the

narrower version of the exclusion. Nevertheless, the Academy weighed in

on the side of the broader interpretation.

The Academy’s position would

have limited Gilmer to those few cases like Gilmer’s where the arbitration

agreement came from some source other than the contract of employment.

The Supreme Court instead sided with the circuit courts and did not even

mention our arguments.

Id. at 76.

532 U.S. 105 (2001).

9 U.S.C.§1 (2018).

President Ted St. Antoine was doubtful about whether the Academy should take a side in that

battle, given the differing opinions of our members. He asked David Feller to make a

presentation to the Executive Committee supporting an amicus brief on Adams’s side and Tim

Heinsz and me to oppose the submission of a brief. This was at the 2000 Annual Meeting. I

thought that Tim and I had the better argument — not on the merits of predispute arbitration

agreements but rather on the inappropriateness of taking a position on a controversial issue

without any indication of a consensus within the Academy. At first it seemed as if we were

going to win with three of the Executive Committee’s five votes. The Committee took a lunch

break, however, and on return voted 3-2 to submit the brief. Not for the first time, David proved

to be a very effective advocate. The two of us were no match for him, even in the limited confines

of an Academy Executive Committee meeting.

Ted asked David to let Tim and me review his draft brief before he submitted it. The draft he

sent us would have been a stimulating law review article but it was an odd choice for this case.

It emphasized an idiosyncratic idea that David had long held, namely, that labor arbitration

should be governed by the FAA rather than Section 301 of the Taft-Hartley Act. That didn’t have

anything to do with the case, and we told him so. The brief he submitted to the Court, 2000 WL

1357773, dropped that argument, but it was still unsuccessful. Even David’s incomparable

advocacy skills could not sway the Court into opposing the spread of employment arbitration.

An aside: at one point during this process, I told David that I was pretty sure we were on the

losing side of the argument. I used the phrase “I’ll bet you a dollar to a doughnut.” He faxed

164

The Fleischli Committee

President James M. Harkless, serving in 1998-99, was opposed to

employment arbitration but knew that the issue was critical to the Academy’s

future. In February 1999 he appointed a Special Committee on the

Academy’s Future to be chaired by George Fleischli. Before announcing the

new Committee, President Harkless consulted with his next two successors,

President-Elect Ted St. Antoine and President-Elect nominee John Kagel.

The Committee’s work would take longer than the remaining four months of

his term, so it was important to have the participation of his successors. He

charged the Committee with answering this question:

Whether to expand the Academy’s membership to

those who act as arbitrators mostly in cases involving

employment disputes arising outside the labor-

management field; and if so, how?

In 1999 hardly anyone — perhaps no one — arbitrated mostly in the

nonunion employment field. There were still very few employment

arbitration cases in those pre-Circuit City days, so no one could make a living

that way. Moreover, even if there were any such people, admitting them

would be a radical departure from Academy practice. The only possible

answer the Committee could return would be No. A narrower question on

which there could be some serious debate would have been whether to count

some employment arbitration cases toward our usual numerical standards for

membership. But that was not an option for the Fleischli Committee.

Although a new investigation on the model of the Beck Committee

was long overdue, I was initially disheartened by the new Committee’s

composition. The Committee’s members included many of our brightest

members, but none of them, so far as I knew, actually practiced employment

arbitration. Thus a group of talented but very traditional labor arbitrators

were to determine whether the Academy should encompass a field with

which they had no practical experience — and they were to do so with a

charge that posed only the most extreme option. A much better way to

proceed would have been to appoint a committee representing both those who

did and those who did not practice employment arbitration, and to give them

a more open-ended charge.

Nevertheless, the Committee did a thorough job. Its most useful

activity was to survey NAA members by mail and phone. Because most of

the Committee’s work was conducted after my 1999 talk, it drafted the survey

more broadly than the narrow question posed by President Harkless. In

addition, the Committee Chair published an article in the Academy’s

Chronicle in 2000, to alert members to breakout sessions sponsored by the

Committee at the 2000 meeting in San Francisco. About 125 members

participated in those discussion groups.

back — he didn’t use email at the time — to suggest that we raise the stakes to a baker’s dozen.

I agreed. When the Court ruled against Adams in March of 2001, I promptly faxed David to say

that my favorite doughnuts were cinnamon from Dunkin’ Donuts. He didn’t reply, but when I

checked into my room at the hotel for our 2001 Annual Meeting, I found a big surprise — literally

big: thirteen boxes with a dozen cinnamon doughnuts in each. I spent the first part of that

meeting walking around the lobby trying to give away doughnuts. But I digress.

165

Given the wording of the Committee’s charge and the background

of its members, I was not surprised when, in November 2001, the Committee

answered President Harkless’s question by recommending that the Academy

“should not expand its membership to include those who act as arbitrators

mostly in cases involving employment disputes arising outside the labor-

management field.” That was the inevitable No answer to President

Harkless’s question. The Committee did offer one modest suggestion that at

least moved in the right direction. It recommended that the Board direct the

Membership Committee to “give such weight as it deems appropriate” to

applicants’ other labor relations experience including, as one factor among

several, employment arbitration — a sort of “extra credit,” if you will. The

Board adopted that recommendation, and the Membership Committee

followed that direction for several years.

The OPC and the Creation of the NDC

The OPC. Although the Fleischli Committee and the Board took a

tiny step toward employment arbitration, they did not resolve the bigger

issue. Although I had given up thinking that the Academy would ever

exercise real leadership in the field of employment arbitration, another

opportunity arose in a very circuitous way. After a pair of Board retreats in

2002 and 2003, the Board concluded that the Academy needed to engage in

strategic planning.

Because the Board itself had no strategic planning expertise,

President Richard Bloch, President-Elect Walter Gershenfeld, and President-

Elect nominee George Fleischli created a special committee devoted to that

task in 2003. The Operational Planning Committee (OPC), chaired by Bill

Holley, reviewed prior Academy reports dealing with its organization and

future and considered a variety of threats and opportunities. Because

declining membership was one major concern, the OPC debated whether to

revise our membership criteria to encompass nonunion forms of employment

dispute resolution. The OPC reported to the Board at the 2004 Fall

Educational Conference (FEC) in Austin. President Fleischli submitted the

OPC’s report to the membership in November of that year and asked for

written comments. The Board would consider the report and members’

reactions at a Board retreat in April 2005 and at the Board’s next meeting at

the May 2005 Annual Meeting in Chicago.

For our purposes, the most important part of the OPC report was its

discussion and recommendations on membership criteria. The Committee

summarized three possible approaches, which it labeled the “Natural

Equilibrium Model” (essentially allowing the Academy’s size to settle

wherever it would), the “Growth Model” (which would seek to increase

membership by counting nonunion ADR work toward our membership

criteria), and the “Maintenance of Membership Model” (which would take

lesser steps, not including counting nonunion work, in an effort to stabilize

membership in the 600-650 range). The OPC opted for the middle road.

The OPC report prompted some significant discussion within the

Academy. Among other things, Barry Winograd and Jeff Tener wrote

opposing articles in the Chronicle, Barry arguing that we should take a more

aggressive approach than the OPC recommended, Jeff defending the OPC

recommendation. Their articles framed the debate that would take place at

166

the next Board retreat in April 2005. Sometime during the 2004 FEC,

President Fleischli, President-Elect Margery Gootnick, OPC Chair Holley,

Secretary-Treasurer David Petersen, and I discussed the OPC’s

recommendations on membership criteria over breakfast. George concluded

the discussion by stating that he would try to develop a compromise proposal

for the Board’s consideration at the retreat. His President’s Corner column

for the Spring 2005 Chronicle printed the result.

Read with the aid of hindsight, George’s proposal seems modest.

He suggested lengthening the time period for reaching “50-and-5” (50 cases

in five years) from five years to ten “while employed as a full time neutral in

the labor relations field or employment relations field” (original emphasis).

“Full time neutral” would include employment arbitration work. It would not

count employment arbitration cases directly but would allow full-time

neutrals who did employment arbitration (or other forms of neutral

employment-related work) extra time to accumulate the necessary number of

labor cases. The proposal offered no benefits to part-time arbitrators. As

before, cases other than traditional labor arbitration cases could be counted

only for extra credit. Nevertheless, that proposal indicated that George was

keeping an open and creative mind in trying to work through this

controversial issue. That helps to explain what happened the next month.

The April 2005 Board Retreat. As the President-Elect designate, I

was invited to the Board’s April 2005 retreat at O’Hare Airport in Chicago.

The first day of the retreat focused on the OPC’s recommendations on

governance, meetings, and outreach. While reaching a consensus to accept

some of the less controversial recommendations, the Board disagreed with

the more important parts of the OPC’s work. Because the retreat was not a

formal Board meeting, the Board took no action then. It left action on the

OPC report for the Annual Meeting in Chicago, but by that time the Board’s

attention had moved on, and the OPC report remained in limbo.

On the second day of the April retreat, the Board’s discussion turned

to question of nonunion ADR work. The discussion went on for quite some

time. Gradually a clear consensus developed to reject the OPC’s

Maintenance of Membership model. The next group of three presidents

(President Fleischli, President-Elect Margery Gootnick, and I) caucused

during a break and concluded that the Board needed to create a separate group

to investigate whether and how the Academy could incorporate employment

arbitration into our jurisdiction. Creating a committee is often a way of

putting off difficult problems. In this case it was a way to solve a difficult

problem that had troubled the Academy for 15 years. We agreed that Jeff

Tener and Barry Winograd would be an excellent team as co-chairs because

they complemented each other neatly in terms of their original and widely

perceived positions on the question as well as in their backgrounds and

personalities.

So it was that we went back to the Board at the end of the retreat and

announced our intention to appoint a committee that would work for two or

three years to present specific proposals for broadening the Academy’s reach.

We promised to present the Board with a formal resolution stating the

committee’s charge.

167

May 2005: The First Board Endorsement. The three presidents

exchanged many emails after the retreat in an attempt to draft a resolution for

Board approval in May. After much tinkering, we presented this draft charter

to the Board at the May 2005 Annual Meeting. The task of the New

Directions Committee (NDC) would be:

To review and make recommendations regarding

any changes in the foundation documents, policies and

practices of the Academy that will be necessary in order to

expand the membership – consistent with fostering the

highest standards of integrity, competence, honor and

character – to include as members neutrals who, as a

significant part of their activities, hold hearings and issue

written decision in order to resolve workplace disputes.

This was the key: in some

fashion we would finally begin to incorporate

employment arbitration work. The Presidents intentionally avoided the

limiting phrasing used by President Harkless years before: we would not

seek to include those who practiced “mostly in cases involving employment

disputes”; we would instead seek those who do employment arbitration “as a

significant part of their activities,” which presumably would mean that most

would primarily be labor arbitrators. The Board discussed the resolution and

unanimously adopted it.

The Work of the New Directions Committee

Communications and Member Participation. Jeff Tener and Barry

Winograd grabbed the reins and raced ahead. One early NDC decision was

to maximize transparency and participation through frequent reports to

members, public forums at the Annual Meeting and FEC, discussions at

regional meetings, emailed requests for comments, and Chronicle articles.

Despite this announced plan, some people felt they did not know what was

going on. When the first NDC emails went out, the criticism was that the

unofficial listserv reached less than half the members. When committee

messages were sent on the official Academy mail list, which reached almost

80% of our members, the criticism changed to “many members don’t read

emails,” even though we arranged to use snail mail to anyone who preferred

that method of communication. (None did.) In addition, the major

background documents, drafts, and reports were all posted on a website that

was available to all members. The complaints continued even after it became

obvious that the greater danger was that members would be overloaded with

information.

In addition to the interactive nature of the email communications

and meetings, the NDC was broadly democratic in another way. The

Committee decided to create working groups on several specific issues such

as membership standards and Academy governance. Membership in those

working groups was open to any member who wished to participate. Many

did so, especially on the largest and most active group, the

membership standards working group chaired by Margie Brogan. The

collected email discussions of that working group provide the most

comprehensive analysis

168

of membership issues related to nontraditional dispute resolution that one

could possibly wish for.

Reflections on the Public Debate. Without exception, so far as I can

recall, all postings and public statements by NDC supporters and the large

majority of those by opponents were informed, accurate, relevant, and polite.

The debate at the 2006 FEC in New Orleans was almost the epitome of

serious, well-reasoned, and professional discussion of a complicated issue.

That was truly a high point in the history of the Academy’s self-examination.

Naturally there were also a few low points in the online discussions

and in some regional meetings. Even in those places, however, most members

were nothing less than cordial and professional. The passion of the

opposition was surprising. The original proposals were repeatedly weakened,

yet NDC opponents were just as adamant as they were at the start of the

debate. This puzzled me for some time. After much reflection, I think I

understand some of the main factors motivating the most vigorous opponents.

First, the issue of employment arbitration meant more to those

members than the merits or demerits of the NDC recommendations would

justify. Many members’ self-identity was inextricably tied up with their

traditional labor arbitration work. They came out of labor arbitration

backgrounds and made their living for decades working in that field. Any

suggestion that labor arbitration was declining or that some neighboring field

was growing must have been interpreted as a reflection on their professional

choices, if not on their professional competence.

Second, some members believed that employment arbitration was

an anti-union management tool. That criticism was exaggerated — the vast

majority of employees covered by employment arbitration agreements were

never going to be unionized in the foreseeable future — but it resonated with

many members. Understandably, though, they feared employment

arbitration as a threat to unions and, in turn, to traditional arbitration.

Third, employment arbitration was proving to be exceptionally

lucrative. The market for employment arbitrators reflected the fact that these

cases would otherwise have been in litigation. Parties were used to rates

charged by their lawyers in court or before administrative agencies. Many

employment arbitrators, in fact, were practicing employment lawyers, not

full-time neutrals. Employment arbitration cases often required legal skills

and knowledge that not all labor arbitrators possessed.

Employment arbitrators therefore charged substantially higher rates

than labor arbitrators. Many of those who saw a future for themselves in that

new and remunerative market supported the NDC initiatives. Most NDC

supporters were lawyers who would have little trouble working in a new area.

Many of the NDC opponents, in contrast, were not lawyers and thus realized

they would not likely be selected for statutory cases.

Finally, there was an understandable generational overlay in the

debate. Many but by no means all of the NDC opponents were very senior

members who had known no other form of dispute resolution during their

careers. Many but by no means all of the NDC supporters were less senior

members who had already encountered nontraditional dispute resolution

procedures during their careers. With many exceptions on both sides, newer

members tended to support the NDC recommendations, while the oldest

members opposed them.

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Psychological and emotional reactions may have combined with

ideology and perceptions of self-interest to raise the temperature in the debate

beyond that of a normal Academy policy dispute. If so, this was not the first

time. Looking through the Academy history, one can find similar dynamics

in the debates over the adoption of the Code of Professional Responsibility,

which replaced an earlier and much looser set of ethical rules, and over the

elimination of the Code’s advertising and solicitation bans. In each case,

opponents thought that something they valued dearly was under attack.

Strategies

NDC Supporters. The ultimate goal of the NDC was to revise our

Constitution and By-Laws as needed to incorporate nontraditional forms or

workplace dispute resolution — in short, to accomplish pretty much what the

Beck Committee had recommended in 1993. Proponents initially shared, I

think, a somewhat naive strategy: we would spend a lot of time consulting,

discussing, and drafting in order to come up with a fair and comprehensive

proposal that we would then present to the Board and the membership for

decision.

For example, Jeff and Barry first proposed that we present

amendments to our governing documents to the membership at the 2007

Annual Meeting in San Francisco. Amendments require a two-thirds

majority, however, so I was reluctant to go that route. Although I believed a

majority would quickly support a well-drafted proposal to broaden the

Academy’s scope, I couldn’t see how we could get a two-thirds majority in a

relatively short period of time. Nevertheless, I trusted their judgment and

reluctantly went along.

Just at that point, some of the most active opponents added a “cart

before the horse” argument to the earlier theme of “nobody wants this

change.” They asserted that it was improper to bring proposed amendments

to a vote before there was evidence that the concept itself had widespread

support in the Academy. But if members didn’t want the changes, all they

would have to do would be to vote them down in San Francisco. Splitting

the decision into two votes wouldn’t change the ultimate decision. As will

be seen, however, that attack on the NDC process backfired: it ultimately

enabled the NDC to gather the necessary super-majority.

The new argument presented us with tactical advantages in

surrendering to the demand for voting on the concept at the 2007 Annual

Meeting in San Francisco and then, if a majority approved the resolution,

voting on the amendments themselves at the 2008 meeting in Ottawa. First,

it would show once again that NDC supporters were sincerely interested in

addressing members’ concerns. Second, and more practically, a resolution

would only require a simple majority and supporters would find it much

easier to obtain that majority than a super-majority. Third, putting off the

final vote for a year would give us that much more time to round up the

needed votes. Fourth, a majority vote in San Francisco might sway some

undecided voters in Ottawa. If they believed that a majority wanted the

changes, they might go along with that majority rather than deprive it of the

required super-majority.

So the NDC announced that it would propose a general resolution to

the Board for possible presentation to the membership at the San Francisco

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business meeting. If and only if that resolution passed, we would draft the

necessary amendments to the Constitution and By-Laws for a vote in Ottawa.

That is exactly what happened. Acceding to that demand did not mollify even

the individuals who made it. To the contrary, once the NDC submitted its

draft resolution to the Board, some of the same people criticized it as being

too general!

One other NDC strategy was far less successful. Because the NDC

was really interested in winning over waverers, we tended to look for

compromises whenever sincere objections arose — tinkering with the

procedure, reducing the number of countable employment cases, and so on.

Barry spotted the risk in that approach long before I did. We were bidding

against ourselves, he noted, because the opposition was not willing to

consider any serious compromise. Nevertheless, Jeff and I favored each

compromise in the belief that each would be the one that would cause

opponents to grab our hands and strike a deal.

Most of that bidding against ourselves occurred well before the first

crucial vote in May 2007. Before the New Orleans FEC in October 2006,

Dan Nielsen floated a compromise that was in fact a large concession. It

would have cut down the credit for employment arbitration work and mixed

those cases together with several forms of labor-related but nontraditional

dispute resolution such as fact-finding and railroad arbitration. This evolved

into a more elaborate joint proposal by Dan and Marty Malin at the FEC. The

practical effect was to reduce the impact employment arbitration and other

nontraditional work could have on an applicant’s qualifications for

membership. Reluctantly, most of the NDC group agreed to that proposal.

Only Barry Winograd tried to slow down the concession process.

Looking back, I think Barry was right. No matter what we offered,

we never succeeded in convincing any of the leading opponents to make a

counter-offer, let alone reach a compromise. No matter what we conceded,

opponents simply went on to a different argument without making any

concessions in return. Going down that road had two harmful consequences

for the NDC. One was that we used our ammunition too early in the battle.

Had we kept more in reserve, we might have been able to make a big last-

minute offer when opponents might be worried about the vote and more

inclined to compromise. The other was that the final proposal was so

shriveled that it would make much less of an impact even if it were adopted.

Against this is the risk that if we had not made concessions along the way,

we would not have reached the required majorities.

From my perspective, the main goal was to secure the Academy’s

commitment in principle to extending jurisdiction over employment

arbitration. The details were far less important. That is why I was willing to

urge adoption of the compromise proposal, weak as it was.

NDC Opponents. The opponents’ strategies and tactics too were a

mixed bag. Leaving aside the obviously unproductive ones — the

demonizing of employment arbitration, the ad hominem attacks — some

other strategies were more effective. The best was the appeal to authority.

Several of the most active NDC opponents were themselves highly respected

members. In addition, before the San Francisco vote opponents obtained the

signatures of sixteen former presidents on a letter opposing the NDC process.

Posted on the unofficial listserv on September 17, 2006, the letter included

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very big names indeed — Ben Aaron, Jack Dunsford, Dick Mittenthal, Bill

Murphy, and more. In essence, opponents said, the resolution had to be a

terrible idea or else these respected leaders would not oppose it so strongly

and so publicly. Members who were not familiar with the issues and evidence

or who had no strong feelings one way or another were particularly likely to

be influenced by the distinguished list of signatories.

There is no question that the presidents’ letter stuck a serious blow

to the NDC efforts. We debated how to respond. One way would be to round

up our own list of presidents who supported the initiative. That wouldn’t

have been effective because the list would have been much shorter and would

mainly consist of much junior former presidents. Another tack would be to

point out that many of the signatories were elderly and non-practicing and

had nothing at stake in the future of employment arbitration. We rejected that

approach both because we greatly respected the signatories and because

making that argument would bring us close to the level of argument that

repelled us when the opponents used it.

Besides, the letter was posted far too early in the debate for

maximum effect. September 2006 was twenty months before the final vote

in Ottawa. By then members would have absorbed it as just one more among

many arguments. Releasing the letter much later, say a few days before the

vote, would have been far more powerful.

In addition, instead of urging members to vote against the resolution,

the letter urged that an unspecified someone — the Board, perhaps, or the

NDC itself — should just “withdraw … from the undertaking at this stage.”

Calling for an immediate halt in the NDC process seemed extreme. The letter

was a good tactic but poorly executed.

After some discussion, the NDC decided not to address the

presidents’ letter directly, but rather address the substantive issues raised in

the presidents’ letter as opportunities arose. That proved to be wise. In the

event, we were able to bring around many of the signatories at the second

vote, and their change of mind did us more good in 2008 than their initial

opposition did us harm in 2007.

Opponents thought they had struck gold with a different procedural

gambit. They argued, in a variety of ways, that a decision like this should

only be made by the membership at large rather than by those who attended

the San Francisco meeting. We should instead, they claimed, provide for

absentee voting.

Though this argument had a democratic veneer, its flaws were

apparent to anyone who thought about the matter.

First, our rules provide for membership decisions to be made at the

Annual Meeting. Second, the Committee on Academy Governance (also

known as the Aaron Committee) had investigated the possibility of absentee

voting and recommended against it; the membership had adopted that

Committee’s report at the 1992 meeting. Thus any change might require a

constitutional or by-law amendment, and at least a preliminary vote of those

attending an Annual Meeting.

Then there were the substantive problems: Apart from those who

miss a particular meeting for personal or other reasons, the most interested

and knowledgeable members are likely to be in the audience. A large number

of those who do not attend a particular meeting have little connection with

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the Academy and are far less likely to know the issues and the evidence, or

to care much about the Academy’s direction. Moreover, the main reason for

voting at a meeting is so that participants can hear all of their colleagues’ final

arguments and views before making a decision. Voting at home before the

meeting obviously does not allow that.

The push for absentee voting never gained the traction NDC

opponents hoped. Some members thought we should delay any decision on

the NDC proposals until after we completed another review of the wisdom of

absentee voting. Others suggested that we should arrange for video

conferencing for the large majority of the members who could not or chose

not to attend the meeting. The Board rejected those suggestions and the entire

proposal soon faded away.

Right from the beginning, some opponents worried about the

possible impact of the NDC proposals on our relationships with our union

clients. Others asserted that the Academy would lose respect and Academy

members would lose business. There was no evidence of such a risk other

than anecdotes about conversations with anonymous union lawyers. The

concept was always a bit far-fetched. Hardly anyone other than Academy

members and applicants has any idea what our current admission rules were.

Nevertheless, the fear of a negative reaction from advocates was real

enough that several members vigorously stated in the NDC’s forum at the

2006 Annual Meeting that we should survey advocates in some fashion to

make sure we would not be hurting ourselves. Following that meeting, the

NDC asked Sara Adler, Chair of the NDC’s External Relations Working

Group, and a few others with good advocate contacts, to tactfully sound out

leading advocates whose views and discretion they trusted. This was not

anything like a public or scientific survey, but the results were clear enough

to eliminate our concerns. Sara found absolutely no evidence that counting

employment arbitration cases for membership purposes would “dilute our

brand,” as some members had argued. Union leaders naturally disliked

nonunion arbitration, but the most common attitude among union lawyers

seemed to be that employment arbitration was established and a part of the

dispute resolution business. In fact, some union lawyers had already begun

to represent individuals in employment arbitrations. Perhaps more

significantly, the advocates had no idea what our current standards were.

Finally, there was a tactic that I term moral blackmail. Others put it

more simply: “If you don’t do it my way, I’ll take my ball and go home.”

One distinguished former president repeatedly threatened to resign from the

Academy if his colleagues dared to adopt the NDC’s recommendations. One

or two others implied the same without being quite so definitive. In the event,

no one resigned from the Academy during or after the NDC process. The

threat was empty.

The Course of the Debate

None of us on the NDC had anticipated the vehemence of the anti-

NDC members. We were therefore shocked when a couple of regions

adopted resolutions opposing the NDC recommendations, even with the

various compromises we had made. The vehemence of the opposition was

more troublesome than the fact or the numbers. Some NDC supporters and

uncommitted members even considered dropping the initiative rather than

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foster or tolerate division of the Academy. At one point in the Fall of 2005,

after encountering concerns at regional meetings I addressed as President-

Elect, I seriously considered giving up the effort. Barry again provided

crucial support. He wanted to slow down the compromise proposal and to

gauge support for the basic NDC resolution. He contacted a number of well-

informed but uncommitted members and discovered a reservoir of support

that we had not been aware of.

Because of his work, I overcame my pessimism and we continued

to work until the New Orleans FEC in 2006. The lively, polite, and closely

balanced debate at that meeting left us with some optimism that we might

have majority support by the time of the planned vote in San Francisco seven

months later. Ironically, by this time Barry himself was burning out. He

began to take a smaller role in the NDC effort, letting Jeff chair the

Committee on his own.

The First Vote: San Francisco, 2007

The NDC’s interim report to the Board in December 2006 proposed

this resolution to be voted on in San Francisco:

Resolved: The Academy should broaden its mission to

accept as members individuals engaged in a range of

workplace dispute resolution activities, subject to the

following:

1. All applicants to the Academy must continue to: (a)

have a substantial core of final and binding labor-

management arbitration activity involving collective

bargaining relationships; and, (b) maintain in all aspects

of their practice the highest standards of integrity,

competence, honor and character.

2. The Academy should include as members neutrals who,

as part of their activities, in addition to having a

substantial core of final and binding labor-management

arbitration activity, hold hearings and issue written

decisions in order to resolve other types of workplace

disputes.

(a) To carry this out, the Board of Governors should

adopt appropriate policies for the Membership

Committee to give countable status to decisions

that are based on impartial appointments and fair

procedures consistent with due process, including

decisions such as those rendered in employment

arbitration, advisory arbitration, fact-finding, and

independent civil service proceedings.

(b) In reviewing a potential member offering other

types of decisions, the Academy should continue to

utilize a numerical threshold when considering an

application, while also considering the variety,

character and relative difficulty of an applicant’s

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arbitration experience, the diversity of parties

served, and evidence of professional growth.

3. The Board of Governors is directed to present for

embership approval at the next Annual Meeting any

changes in our governing documents that will be

necessary to accomplish this objective.

The Board considered the wording and voted unanimously in

January 2007 to recommend adoption of the resolution by the membership in

San Francisco. Many members had raised valid questions about what passage

of the NDC resolution would mean in practice. After all, its phrasing was

very general. Rather than telling people to wait and see, the Board decided

that it needed to provide some specifics. Reaching a consensus on specifics

was no easy task.

Not for the first or last times in the NDC process, new players

stepped up at a critical time. This time Marty Malin and Dan Nielsen revised

Dan’s October proposal on membership standards. The result was a proposed

implementation that was at once complicated, modest, and fair, albeit much

less ambitious than most of us on the NDC had sought. Their proposal stated

that if the membership adopted the NDC resolution in San Francisco, the

Board would direct the Membership Committee to apply this standard:

The Membership Committee shall apply, as a

threshold for considering an application for membership, a

minimum of five years of experience as an arbitrator, and

60 written decisions in a time period not to exceed six

years, at least 40 of which must be countable labor-

management arbitration awards. In addition to the labor-

management arbitration awards, up to 20 decisions in the

field of workplace disputes resolution (including, for

example, advisory arbitration, fact-finding, and teacher

tenure and civil service cases under statutes or rules closely

analogous to traditional arbitration) shall be countable in

accordance with the standards established by the

Membership Committee. No more than 10 countable

workplace disputes resolution decisions shall involve

employment arbitration pursuant to an individual contract,

handbook, or other agreement between an employer and an

employee who is not represented by a labor organization.

It would be a Rube Goldberg device but it had something for

everyone. To meet the complaint that counting employment cases would

lower the criteria for membership (“dilute the brand” or abandon our “gold

standard,” as some opponents put it), the proposal increased the threshold

number of cases from 50 to 60. To accomplish the objective of giving credit

for employment arbitration work, the proposal allowed applicants to count 10

such cases toward the new threshold. To recognize other nontraditional

forms of labor dispute resolution, the proposal allowed applicants to count as

many as 20 such cases toward the threshold, including advisory arbitration,

fact-finding, and civil service cases. The Board adopted the proposal as its

planned implementation should the NDC resolution pass. Once the Board

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went on record, the San Francisco vote would test the Board’s planned

implementation as well as the general principle of expansion.

That set the stage for the first battle.

The entire 2007 business meeting, after conclusion of certain

essential reports and ceremonies like the admission of new members, was

devoted to the NDC resolution. We were scheduled to end the debate around

noon so that members could have lunch before the afternoon sessions. As

President, I presided. I had consulted with our parliamentarian, Herb Marx,

about all the procedural matters that I thought might come up so that we could

prepared to address them according to Robert’s Rules of Order.

All was in place, or so I thought. The last ceremonial item before

the NDC moved its resolution was to award Lifetime Membership status to

Ben Aaron, one of the few surviving founders of the Academy and one of its

most respected members. He asked for an opportunity to make a few

remarks. I expected him to make the typical comments about how much the

Academy meant to him and so on. Instead, he made a blistering attack on the

substance of the NDC resolution and the Board’s implementation

commitment. On the other hand, he praised the NDC process, describing it

as scrupulously fair and completely transparent and democratic.

As soon as the NDC moved adoption of the resolution, a steady

stream of members lined up at the microphones to offer their opinions. The

debate was wide-ranging, intense, sometimes impassioned but always

completely professional. So many people spoke on both sides that it was

impossible to discern a majority in any direction. The arguments were not

new to anyone who had been following the debate, but it felt different to hear

them in person, all at one time.

Well into the debate, one member offered a substitute motion. He

proposed maintaining the traditional requirement of 50 traditional labor

arbitration cases in five years but adding the Board’s proposed policy (60

cases in six years, 40 of which had to be traditional labor arbitrations and no

more than ten of which could be employment arbitrations) as an alternative

option for applicants. This was a step toward the NDC — indeed, the first

and only proposal made by NDC opponents — but it came far too late in the

game. The original NDC proposal had repeatedly been weakened with no

response from opponents, so NDC supporters had no reason or wish to give

up any more. Moreover, the substitute was unacceptable in one other respect.

It would make those who did employment arbitrations jump a higher hurdle,

60 cases rather than 50. The essence of the NDC proposal was to provide the

same threshold number (60 cases) for all applicants.

The debate and vote on that motion was a proxy for the main issue.

Everyone who had followed the debate knew that the choice was between

making a significant policy change and an insignificant one. To my surprise,

a large majority voted against the alternative on a standing vote. There was

no official count because the result was obvious, but I’d estimate that nearly

two-thirds voted No. Some of those who voted against his substitute might

have had problems with its wording or might have wanted a chance to vote

on the main motion, but most, I thought, rejected the alternative because they

favored the NDC resolution.

The debate on the main motion could have ended then, but many

members had not yet spoken. We therefore had another hour’s worth of

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discussion. I could see that many members were leaving to catch their flights

home. One member suggested ending the debate but did not formally call the

question, so the debate continued. Finally one member did call the question

and the group ended debate by the required two-thirds vote.

The motion to call the question occurred just as Dick Mittenthal was

about to get his turn at the microphone. He made a point of personal privilege

and asked that as a very senior member with a great interest in the subject, he

should be allowed to speak despite the vote. I could not bear to cut him off,

so I asked for and received the meeting’s unanimous consent to allow him to

speak. Like Ben, he made an emotional appeal to reject the NDC resolution.

I’m sure he had a big impact on those who might still have been undecided.

Between the departure of many members who had opposed the

substitute motion and the impact of Dick’s remarks, the final vote was smaller

and closer than it would have been if we had voted on the main motion

immediately after defeating the substitute. The final vote was 72 in favor of

the resolution and 65 opposed, a small majority of just under 53%. The NDC

survived to fight the next year.

As the resolution directed the Board to “present for membership

approval at the next Annual Meeting any changes in our governing

documents that will be necessary to accomplish” the objectives of broadening

the Academy’s mission and giving “countable status” to employment

arbitration cases. That put the ball back in the NDC’s court and gave it

another, steeper hill to climb at the next meeting.

The Second Vote: Ottawa, 2008

Jeff Tener was by this time the sole Chair of the NDC. He was

therefore in overall charge of drafting the necessary amendments to the

Academy’s governing documents. At this point, George Fleischli stepped up.

Although he had started the NDC while he was President, he ended up voting

against the NDC resolution in San Francisco. He was thus in a good position

to reach out to both sides.

George and the other members of the NDC’s Governance Working

Group found that only a few words needed to be added to the Constitution

and By-Laws. Article II of the Constitution, which stated the Academy’s

objectives, needed a reference to “workplace disputes” other than traditional

labor arbitration. The By-Laws needed a provision allowing the membership

to count nontraditional cases as described in the Board’s January 2007

resolution and a statement in Section 6 that representing employees or

management in nonunion workplace disputes was inconsistent with the

neutrality required for membership in the Academy. The NDC favorably

recommended George’s proposals to the Board in its final report on August

30, 2007.

The Board debated the recommendations at the 2007 FEC in Miami.

One problem with the proposals was that they would have the effect of

immediately banning members from doing any employment dispute work

that could be interpreted as advocacy. Several members had helped draft fair

employment arbitration plans. Others had served as expert witnesses when

employment arbitration agreements were challenged in court. A couple had

represented individuals in employment arbitrations, usually pro bono. At the

suggestion of Chris Knowlton, the Board added a grandfather provision to

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permit present members to continue to do that sort of work. The grandfather

clause replicated what the Academy had done when it first adopted the ban

on labor-management advocacy in 1976.

There was nothing shocking about the NDC proposals. They were

the minimum required by the Academy’s vote in San Francisco. If one voted

for the NDC resolution, one should logically vote for the proposed

amendments implementing that resolution. The amendments, though,

represented the last chance for NDC opponents to block expansion of the

Academy goals. They also represented the opponents’ best chance, because

adoption required a two-thirds vote rather than San Francisco’s bare majority.

As modest as the proposals were by this time, I doubted they would pass.

Most other NDC members seemed to feel the same way. None predicted

victory.

This time, though, the online debates before the meeting were less

numerous and less emotional. There were some restatements of the old

arguments, but for the most part everyone knew where they stood and why.

Among the repeated arguments was the refrain that the final vote should be

by mail. That went no further than it had the previous year, for the same

reasons. One new element was that the final vote would occur in Ottawa.

Some NDC opponents complained that Ottawa was too far away and too

expensive for many members so that some people who wanted to vote on the

measure wouldn’t be able to do so. The NDC originally planned to have the

only vote in San Francisco and adopted the two-stage process only because

some opponents had objected that voting in San Francisco would put the cart

before the horse. They should, however, have noticed that the vote in San

Francisco commanded the Board to prepare amendments for a vote at the next

Annual Meeting — that is, in Ottawa.

Undoubtedly more Canadians would attend the Ottawa meeting than

a meeting within the United States, particularly because Canadian Michel

Picher would take over as President at the end of that meeting. Canadians

would thus form a higher percentage of attending members than usual.

Canadians do not have employment arbitration as we know it, so they don’t

have the same stake in the subject as their U.S. colleagues. Making that

argument, though, ran the risk of offending Canadians by suggesting that

NDC opponents didn’t trust them to vote correctly or didn’t value their votes.

By this time Barbara Zausner was President. Although she had

consistently supported the NDC process, she worked most effectively in her

low-key way behind the scenes rather than in public. She was probably more

responsible than anyone for encouraging George Fleischli and George

Nicolau to support the compromise proposal. That in turn, as I will explain

in a moment, resulted in getting most of the former presidents who had

opposed the San Francisco motion to switch sides and support the NDC in

Ottawa.

Barbara ran the Ottawa meeting with a firm but fair hand. The first

motion, by Amedeo Greco, was to defer the vote for another year. Because I

was pretty sure the NDC proposals would fall short of the necessary two-

thirds, I didn’t care much about where the vote would take place. On the one

hand, defeating the proposal in Ottawa would save us an extra year of work

and worry. On the other hand, perhaps something would happen over the

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next year to improve our chances. As a result, I was initially inclined to

support the delay.

I was finally persuaded to vote against Amedeo’s motion by

something I should have focused on earlier. The San Francisco resolution

expressly directed the Board to present amendments “at the next Annual

Meeting” — that is, in Ottawa. Deferring a vote would thus contradict the

membership’s procedural decision. In addition, some people attended the

Ottawa meeting precisely so they could vote on the amendments. Suddenly

delaying the vote would surely offend them. Some NDC opponents thought

they had enough votes at the Ottawa meeting to kill the proposals, so even

they had no reason to delay a decision.

In any event, the motion was overwhelmingly defeated. While

arguing for it, however, one strong NDC opponent implied that Canadians

shouldn’t vote on the amendments because the changes wouldn’t directly

affect them. He did not intend to offend our Canadian members, but the way

he phrased his argument did exactly that. Several Canadians later told me

that they made up their minds to support the amendments in reaction to his

statements.

The debate on the merits of the proposed amendments was short.

Everyone who cared to had already stated their views, most of us several

times. So many people had said so much in San Francisco and elsewhere that

there was little need to say more now. When someone suggested separating

the proposals, which would have opened up each part of the delicately

balanced compromise to rejection, Barbara ruled that they were a package

and had to be voted together. Thus opponents lost their last chance to pull

the compromise apart. The prevailing feeling in the room, it seemed to me,

was something like “let’s get this over with.”

George Fleischli contributed the most important new argument

during the debate. After the Board had recommended his proposed wording

of the amendments, he went to work on the sixteen former presidents who

had so forcefully come out against the 2007 NDC resolution. I don’t know

what he said to them, but he must have been awfully persuasive. One of his

early calls was to Ben Aaron, who had used his receipt of Lifetime

Membership in San Francisco to make an emotional plea against the NDC

recommendation. Ben not only approved George’s words, he called several

of the others to urge their support as well. In the end, George was able to

announce at the Ottawa meeting that thirteen of the sixteen now

recommended adoption of the amendments. Even Dick Mittenthal, whose

concluding remarks in San Francisco against the NDC resolution were so

compelling, was willing to work for a compromise for the good of the

Academy. Bill Murphy had only a few months to live and asked to be

excused from participating on either side. Only two of the sixteen remained

adamantly opposed. Sadly, Ben Aaron himself died before the meeting.

George’s announcement of the former presidents’ support proved even more

powerful than the original letter.

The vote counting this time was even more careful than in Chicago.

There were two vote counters, each with a mechanical clicker for recording

numbers. On the first vote, their numbers differed slightly so the group voted

again. Once more, their counts differed slightly, so once more we voted. I

was sitting next to Barry at the time. He seemed as pessimistic as I was about

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the result. When

we saw a large number of people stand to vote Yea and a

much smaller number stand to vote Nay, we looked at each other with

astonishment. I think he had the same thought as I did at that moment: “We

might just have done it!”

And indeed we had. On the third vote, 114 members voted, so the

magic number for the bare two-thirds majority was 76. After receiving the

agreed tally from her vote counters, Barbara announced that 78 members had

voted in favor and 36 against. A quick mental calculation showed that the

amendments received the two-thirds majority with two votes to spare. Had

just three people voted the other way, the NDC’s three years of work would

have been for naught.

The end result was nowhere near as dramatic as we had hoped when

we began the NDC initiative. The final compromise on membership

standards was particularly disappointing because it was so limited.

Nevertheless, the most important part of the entire effort remained intact: we

amended our Constitution and By-Laws to incorporate nontraditional forms

of employment dispute resolution into the Academy’s reach. That candle

alone was worth the price of the game.

Reflections on the 2007 and 2008 Results

Victory, they say, has many parents, failure none. That is

particularly true with the two close votes on the NDC proposals. Because

just a few votes made the decisive margins, many factors contributed, each

of which could have been decisive.

First among the reasons, I am convinced, is the incredible work done

by so many supporters, beginning with the Board of Governors and officers

from 2005 through 2008 and continuing through the members of the NDC

and its working groups.

Special credit goes to those who spotted a need at a crucial time and

came forward to fill it. That group included George Fleischli on several

occasions; Marty Malin and Dan Nielsen, who found a way to provide the

specificity about the resolution’s implementation that some members had

demanded, while at the same time preserving the most important parts of the

reform initiative; Sara Adler, who helped to defuse the suggestion that our

labor clients would punish us for addressing employment arbitration; and

leaders like Walt Gershenfeld, Margery Gootnick, Michel Picher, Ted St.

Antoine, and Barbara Zausner, whose interventions repeatedly demonstrated

that the NDC enjoyed consistent presidential support.

Even with those members’ contributions, I give the lion’s share of

the recognition to those who led the NDC itself, particularly its co-chairs,

Barry Winograd and Jeff Tener, and the head of its Membership

Standards Working Group, Margie Brogan. Sara Adler (who chaired the

External Affairs Working Group) and Bill Marcotte played crucial roles at

precisely the right times. All of them are great leaders in the Academy. It is

sweet and fitting that many of the NDC leaders have gone on to hold higher

office, Sara, Margie, and Barry as presidents and Jeff as vice president.

Margie’s immediate reward, though, was to chair the Membership

Committee at the moment when it had to figure out how to apply the

somewhat vague standards adopted by the Board. Unsurprisingly, she did

an amazing job.

180

Developments After the New Directions Committee

Application of New Membership Standards. Following the adoption

of the new constitutional standards for Academy membership, the chairs of

the Membership Committees that first had to apply those criteria were

Margie Brogan, Sarah Garraty, Howell Lankford, Susan Mackenzie, Bill

Marcotte, and Susan Meredith. These chairs were surveyed about the

practical effects of the new standards. Perhaps surprisingly, especially in light

of the heated debates about counting employment (nonunion) arbitrations,

one chair expressed the initial consensus that “allowing the counting of

different workplace disputes had a more significant impact upon admissions

to the NAA than the 10 employment cases allowable.”

It was pointed out

that practically none of the early post-NDC applicants had close to as many

as ten cases.

Only with the more recent set of applications, in 2020-21, did a few

candidates have the maximum number of employment arbitrations allowed.

One can speculate about the reasons. Although surveys indicate that

employees are subject to mandatory arbitration in over half of American

workplaces,

the actual number who get to arbitration may be smaller than

realized. Perhaps it took time for word to get out that the NAA was counting

employment arbitrations toward qualifying. Many employment arbitrators

are also partisan advocates and thus are not eligible for Academy

membership. In any event, it would be ironic if the pitched battle over this

one qualification may have had the more important practical effect of

promoting other grounds for admission and of extending more broadly the

reach of Academy involvement.

Modifications of 1997 Policy Statement Opposing Mandatory

Arbitration. In 1997 the NAA through the Board of Governors flatly stated

that it "opposes mandatory employment arbitration ... for the pursuit

of statutory rights."

By 2009 the Academy had softened this position to

saying that "voluntary arbitration is always preferable," and "it is desirable

for employees to be allowed to opt freely, post-dispute, for either the courts

and administrative tribunals or arbitration."

Amendments of Guidelines for Employment Arbitration. Along with

the 1997 Policy Statement opposing mandatory arbitration in principle, the

NAA recognized the reality of its lawful existence under Supreme Court

rulings in Gilmer and subsequent decisions, as noted earlier.

Accordingly,

the Academy adopted Guidelines on Arbitration of Statutory Claims under

Employer-Promulgated Systems.

Amendments were adopted to these

Theodore J. St. Antoine contributed the remainder of this chapter.

Margie Brogan, email of September 21, 2020, on file with the author.

Alexander J.S. Colvin, “The Metastasization of Mandatory Arbitration,” 94 Chi.-Kent L. Rev.

3, 23 (2019).

National Academy of Arbitrators, “Statement on Condition of Employment Agreements,” in

Arbitration 1997: The Next Fifty Years, Proceedings of the 50th Annual Meeting, National

Academy of Arbitrators 312 (Joyce M. Najita ed. 1998).

National Academy of Arbitrators, “Policy Statement on Employment Arbitration” and

“Guidelines for Employment Arbitration” (May 20, 2009), https://naarb.org/employment-

arbitration-policy-and-guidelines/.

See supra text following note 7, “Policy Statement and Guidelines for Members.”

Id.

181

original Guidelines in 2007 and 2009. Among the most important changes or

additions were these:

1. The title was changed to Guidelines for

Employment Arbitration and their coverage was no longer

limited to statutory claims. It was extended to the

arbitration of contractual rights (under employee

handbooks and oral commitments) and other common law

claims.

2. Fairness of the arbitrator-selection process was

amplified by advising arbitrators contemplating an

appointment to ask themselves: "Did both parties have a

meaningful selection opportunity?"

3. In a provision that would become increasingly

important, members were advised to consider the following

in deciding whether they should take a case: "Any

restrictions on class or group actions to the extend these

might hinder particular grievants in pursuing their claims,

especially where the monetary amount of each individual

claim is relatively small, or hinder the vindication of the

public purpose served by the particular claim."

4. Special attention was paid to cases involving a

pro se claimant.

5. Special attention was paid to the need for a

record (an audio tape instead of an expensive transcript?)

in statutory cases that were likely to be subject to judicial

review.

The Second Set of Guidelines for Mandatory Employment

Arbitration. In May 2008 Academy members amended the NAA

Constitution and By-Laws to authorize establishing standards for persons

who decide “workplace disputes,” including employment arbitrators. In June

2011 President Roberta Golick, in conjunction with Immediate Past President

Gil Vernon and then-President-Elect Sara Adler, appointed a Committee to

Draft a Code of Professional Responsibility for Employment Arbitrators.

Regular Committee members included Jack Clarke, Sharon Henderson Ellis,

George Fleischli, Ed Krinsky, Susan Mackenzie, Martin Malin, Dennis

Nolan, John Sands, Susan Stewart, Jeff Tener, and Barry Winograd, with

Ted. St. Antoine as Chair. The “three Presidents” were ex officio members.

St. Antoine appointed Martin Malin and Dennis Nolan as chairs of

drafting subcommittees to parallel the provisions of the two halves of the

existing Code of Professional Responsibility for Arbitrators of Labor-

Management Disputes (the Labor Arbitration Code). An initial decision was

not to seek the participation of other neutral bodies like the AAA, FMCS, or

JAMS at the outset, but for the Academy to complete a first draft before

considering inviting others to provide input. Several committee members

opposed proceeding without other interested groups, as had been done with

the Labor Code and the Due Process Protocol. The majority view was that it

See supra note 19.

See infra text at notes 34 and 35.

182

made sense to determine sentiments within the Academy first, especially in

light of the considerable controversy recently generated over the New

Directions project.

As intended, much of what became the second set of Guidelines

mirrored the structure and contents of the existing Labor Code. Those

included provisions on an arbitrator's qualifications and responsibilities to the

profession, responsibilities to the parties, responsibilities to administrative

agencies, prehearing conduct, hearing conduct, post-hearing conduct, and

post-award conduct. Many provisions were self-evident and conventional,

such as those requiring that an arbitrator be impartial and competent to handle

the particular case, ensure all parties due process, and avoid any undue delay.

A few of the more significant or divisive strictures were the following:

1. An arbitrator must not accept an appointment if

selected from a panel unilaterally formed by one of the

parties. Some argued this was too restrictive if all the

panelists were established, reputable persons (e.g., all

Academy members).

2. Written disclosure requirements for arbitrators

are very extensive and continue throughout the arbitration

proceedings if new grounds for disclosure come to light.

They cover all personal, social, professional, financial, or

other interests related to a party, representative, or known

witness. The broad rules of states like California were

influential here.

3. An arbitrator must decline an appointment if

there is a conflict of interests, even if all parties waive any

objection.

4. Arbitrators may accept or decline parties’

invitation to mediate, or even suggest it themselves, but

there must be clear rules in advance about ex parte

communications (allowable) and about the further role of

the arbitrator if the matter is not resolved in mediation.

5. Arbitrators must inform an unrepresented party

that they are neutral and not representing either party. They

may explain the arbitration process to the pro se party,

although they must not assist either party in the

presentation of its case.

6. An arbitrator "must make a reasonable effort to

address and follow public law whenever public law is at

issue in a case." Some strongly urged that arbitrators should

or could stick to applying the parties' contract and that this

provision on public law authorized courts to introduce a

new ground for vacating an arbitrator's award. The

Guidelines themselves state: "They do not establish new or

additional grounds for judicial review of arbitration

awards."

183

7. Arbitrators should not decide a case on a

rationale no party has argued without returning to the

parties for their views. Some questioned this ban, pointing

out that appellate courts frequently decide cases that way.

8. One party may be made solely responsible for

all arbitral fees by law, agency rules, or agreement of the

parties.

9. Post-award clarification of the merits is not

permitted unless all parties agree but an arbitrator may

retain remedial jurisdiction to resolve disputes about the

interpretation or implementation of the remedy provided by

the arbitral award.

10. Arbitrators may not voluntarily participate in

legal proceedings for enforcing an award.

Major Changes in the Drafting and Approval Process. Probably the

assumption of most of the Drafting Committee was that its product would

supersede the earlier set of Guidelines and would be a binding, enforceable

code like the Code for Labor Arbitrators. Perhaps there would be a separate

enforcement body instead of the Academy’s Committee on Professional

Responsibility and Grievances (CPRG), or perhaps the CPRG would add

employment arbitrators to its membership.

It turned out there was strong opposition to the proposed code, both

within the Drafting Committee and within the Board of Governors. There

were various reasons, including some of the arguments on particular issues

mentioned above. Some committee members felt that Academy members

subject to such a code would be at a competitive disadvantage with

nonmember arbitrators who were not thus limited. Within the BOG there

seemed considerable sentiment to the effect that Academy members already

had, with existing Guidelines and the many state regulations, more than

enough constraints on wrongdoing. In any event, there were two major

compromises: (1) the proposed code, which presumably would have been

enforceable like the Labor Code, was reduced to a second set of nonbinding

Guidelines and (2) the new set of Guidelines was limited to mandatory

employment arbitrations imposed as a condition of employment. (The

original set of Guidelines eventually covered — and still covers

— all employment arbitrations, mandatory or otherwise.)

With those compromises, the NAA Board of Governors in May

2014 formally approved what had acquired the rather cumbersome title

of Guidelines for Standards of Professional Responsibility for Arbitrators in

Mandatory Employment Arbitration.

Applicability of the Labor Code to Employment Arbitration. When

the second set of Guidelines was deprived of any binding effect, several NAA

members expressed great concern that the Academy would have no

disciplinary power over members who engaged in misconduct as employment

arbitrators. Hearing this, Past President George Fleischli stated he had been

This is contrary to the Due Process Protocol, but the Protocol was undercut on this point by

the decision in Cole v. Burns Int’l Security Svcs., 106 F.3d 1465, 1482 (D.C. Cir. 1997).

For the full text, see https://naarb.org/guidelines-for-standards-of-professional-responsibility-

in-mandatory-employment-arbitration/.

184

involved with adding provisions to the Labor Arbitration Code that were

intended to make persons covered by the Code as labor arbitrators also

subject to it when they serve as employment arbitrators. Express language

did make that Code applicable to employment arbitrations as well as to

traditional union-management labor arbitrations. Indeed, earlier in this

chapter Dennis Nolan declares very matter-of-factly: "The Academy also

amended the Preamble to the Code of Professional Responsibility so that it

would apply to nonunion employment arbitration."

The wording in the

Preamble and Scope of Code could hardly be more explicit about coverage:

"individual employment contract," "implied or explicit individual

employment contract," "procedures established by employers to resolve

employment disputes under personnel policies or handbooks," "the other

arbitration and related procedures described in the Preamble."

The revised

initial Guidelines (2009) also state, suggesting an interrelationship: "They

supplement the Code of Professional Responsibility for Arbitrators of Labor-

Management Disputes."

Nonetheless, a number of Academy members do not realize, or

oppose the position, that the Labor Code is applicable to employment

arbitration. The chief legal officer of the American Arbitration Association,

the NAA’s partner in Code enforcement, was similarly disbelieving when the

matter was broached with him. In nonunion employment arbitrations, the

AAA now applies its own Employment Arbitration Rules and Mediation

Procedures

as well as the Employment Due Process Protocol.

Apparently

the Academy’s Committee on Professional Responsibility and Grievances

(CPRG), which would have the relevant jurisdiction, has never had occasion

to rule on the question of the Labor Code’s applicability to employment

arbitration. Of course, as Dennis Nolan has remarked, the Labor Code is an

"ill-fitting" garment there. It "does not address any of the peculiar ethical

problems raised by employment arbitration."

But it is better than nothing.

Most arbitrator violations in any context are neither subtle nor unique to the

type of arbitration. They are crass and mundane, such as not getting out a

decision for months past a deadline, or not disclosing a disqualifying personal

association. Almost any set of governing rules would be applicable to such

offenses.

See supra text following note 7, “Code Amendment.” For other views see supra ch. 2, Dan

Nielsen, “The Challenge of Self-Regulation: Ethical Standards in Arbitration.”

See https://naarb.org/code-of-professional-responsibility/.

See supra note 19.

See https://www.adr.org/sites/default/files/EmploymentRules_Web_2.pdf.

See https://naarb.org/due-process-protocol/. For the Academy’s role in creating the Due

Process Protocol, see Gladys W. Gruenberg, Joyce M. Najita & Dennis R. Nolan, “Due Process

Protocol,” in National Academy of Arbitrators: Fifty Years in the World of Work 285-88 (1997).

See supra text following note 7, “Code Amendment.”

185

Amicus Briefs

Over the years the NAA has filed about ten amicus briefs with the

U.S. Supreme Court, most written by David Feller but others by James

Feldman, Matthew Finkin, and Ted St. Antoine.

The majority of the briefs

dealt with traditional union-management issues and the Academy's batting

average was most impressive. Three cases involved nonunion employment

or consumer arbitration, and there the Academy fared much less well.

1. Circuit City Stores, Inc. v. Adams.

2. AT&T Mobility LLC v. Concepcion

3. Epic Systems Corp. v. Lewis.

These cases involved a combination of a mandatory arbitration

clause with a waiver of the right to bring a class or group action.

In Concepcion, a consumer case, California courts had held the combination

unconscionable and invalid. The U.S. Supreme Court reversed. In a 5-4

decision, it ruled the Federal Arbitration Act's support for arbitration

preempted state law and held the class-action waiver was valid.

The three cases in Epic Systems were employment cases, and the

NLRB and some federal courts of appeals distinguished Concepcion on the

grounds that Section 7 of the National Labor Relations Act

guarantees employees the right to engage in "concerted activities." In its

amicus brief the NAA argued that "collective statutory claims presented in

employment arbitration can be heard as simply, flexibly, informally, and

expeditiously as these very same claims are commonly heard in labor

arbitration," and that "the presentation of all these individual

claims would produce a genuine 'procedural morass.'" The U.S. Supreme

Court nonetheless held (5-4) that the class-action waiver required of

employees was valid. The FAA provides for the enforcement of individual

arbitration agreements according to their terms, said the Court, and there was

no showing that either the FAA or the NLRA provides otherwise for

employees. The dissent, by Justice Ginsburg, insisted that the history, text,

purposes, and long-standing construction of the NLRA protected employees’

concerted activity like a class-action arbitration claim.

The Common Law of the Workplace:

The Views of Arbitrators (1998, 2005)

Background. As stated earlier, employees may now be subject to

mandatory arbitration agreements in over half of American workplaces.

The possibility of such a development was foreseen by Arnold Zack when he

was President of the NAA in 1994. He was concerned that in many of these

nonunion employment arbitrations the arbitrator would be someone from a

commercial litigation background, unfamiliar with the practices and

procedures of the workplace. Zack therefore proposed that the Academy

See generally infra ch.10, Barry Winograd, “The Academy’s Amicus Briefs.”

532 U.S. 105 (2001) (discussed supra id.).

563 U.S. 333 (2011).

138 S.Ct. 1612 (U.S. 2018).

Colvin, supra note 17.

186

sponsor a book setting forth the views of established labor arbitrators on

accepted principles of employer-employee relations.

Zack’s proposal did not meet with universal acclaim within the

Academy. As revered a figure as Benjamin Aaron worried that such a work

could become a vade mecum, with its “rules” being followed too

mechanically by the uninitiated without sufficient attention to the critical

importance of differing fact situations. Another objection was that respected

arbitrators often disagree on interpretive or evidentiary issues, and the

Academy should not take an institutional position on such divisions. Other

critics felt that the relationship of an arbitrator to a particular set of parties

was highly personal and they would want the judgment of that individual

regarding their specific dispute, not some generalized formulaic

determination.

These concerns were taken seriously and resulted in some

adjustments. Perhaps most significant, it was decided that when reasonable

differences of opinion existed among reputable arbitrators, those

disagreements would be recognized. There was a flat disavowal of any effort

to promulgate definitive rules. Proponents of the project further pointed out

that many veteran arbitrators rarely submit their decisions for publication,

and the media frequently focus on the bizarre or sensational case rather than

the basic and routine. A book reflecting consensus positions on common

issues would offset those misconceptions. Ultimately, a majority of Academy

members sided with the view that the experience of a half century had yielded

some generally accepted approaches toward frequently encountered

problems, and that these insights were worth sharing.

Authors and Subjects. President Zack was chiefly responsible for

selecting the NAA members who wrote and edited the two editions of The

Common Law of the Workplace: The Views of Arbitrators (1998, 2005). The

chapter titles and the authors were as follows for the second edition (little

changed from the first edition – essentially an updating):

1. Practice and Procedure. John Kagel

2. Contract Interpretation. Carlton J. Snow

3. Management and Union Rights: Overview. Gladys W.

Gruenberg

4. Job Assignments. Susan R. Brown

5. Seniority. Calvin W. Sharpe

6. Discipline and Discharge. Gladys Gershenfeld, chapter editor

(a) Standards for Discipline and Discharge. Dennis R. Nolan

(b) Due Process in Discipline and Discharge. James Oldham

Susan T. Mackenzie

(d) The Troubled Employee. Janet Maleson Spencer

7. Wages and Hours. Timothy J. Heinsz and Terry A. Bethel

8. Safety and Health. Mark Thompson

9. Fringe Benefits. Shyam Das

10. Remedies in Arbitration. Marvin F. Hill, Jr.

Appendix. Titles of NAA Proceedings, 1994-2004

Index. Jacquelin F. Drucker

187

The first edition of the publication had a Presidential Advisory

Group, chaired by Richard Mittenthal. Its members were Benjamin Aaron,

Howard S. Block, Dallas L. Jones, Clare B. McDermott, Anthony V.

Sinicropi, Arthur Stark, and Rolf Valtin. Each chapter draft was reviewed by

two members of this Advisory Group. The Editor and Chair of the Common

Law Project was Theodore J. St. Antoine.

Impact. The Common Law has been widely regarded as a clear,

concise, and reliable guide to the arbitration principles applicable in resolving

workplace disputes. Perhaps ironically, however, its greatest use may not be

where President Zack thought such a reference work was most needed,

namely, in the relatively novel, uncharted area of nonunion employment

arbitration. While The Common Law has undoubtedly been helpful there,

published decisions in traditional union-management cases show that a large

number of labor arbitrators also find it a readily accessible and authoritative

aid in their work.

Howard Block, J.F.W. Weatherill, Theodore St. Antoine,

and John Kagel

Edward Krinsky, Margery Gootnick, George Fleischli,

Michel Picher, and Amedeo Greco

Gladys and Walter Gershenfeld

Barry Winograd, Ross Kennedy, Joan Dolan, and Jeffrey Tener

Margery Gootnick and Arnold Zack

188

hapter 10

THE ACADEMY’S AMICUS BRIEFS:

ADVOCATE FOR THE INSTITUTION OF ARBITRATION

Barry Winograd

Introduction

The Academy’s filing of briefs amicus curiae with courts in the

United States and Canada demonstrates its objective of promoting and

protecting the institution of arbitration and, in so doing, advancing a judicial

understanding of arbitration as a means of resolving disputes. This objective

contrasts sharply with the notion that the Academy is a trade organization

with a narrow focus on the income of its members.

For many years the Academy’s amicus filings have been written by

a small number of members, principally in academic positions, subject to

approval by the organization’s leadership. Currently this aspect of the

Academy’s work is overseen by its Amicus Brief Advisory Committee

(ABAC).

The Academy’s general goals, which its amicus filings have

highlighted, are described in a statement by former President Byron

Abernathy in 1983:

The dominant commitment of this Academy

throughout its history has been to the advancement of

arbitration, not to the advancement of arbitrators. That

essential ingredient of true professionalism. . . -- a sense of

responsibility for advancing socially desirable goals lying

outside and beyond one's personal or group interests -- has

motivated this Academy.

The Academy’s governing documents do not refer specifically to

amicus briefs. However, the Academy’s Constitution provides that one

purpose is “to promote the study and understanding of arbitration of labor

management disputes, other collectively bargained dispute resolution

arrangements, and procedures used to resolve other types of workplace

disputes.”

Amicus briefs are an important Academy activity fulfilling this

purpose.

The organization’s Bylaws authorize the Academy’s president to

appoint special and permanent committees to further the purposes of the

organization. ABAC members are appointed for three-year terms to monitor

Abernathy, “Presidential Address: The Promise and the Performance of Arbitration: A Personal

Perspective,” in Arbitration -- Promise and Performance, Proceedings of the 36th Annual

Meeting, National Academy of Arbitrators 1, 13 (James L. Stern & Barbara D. Dennis eds. 1983),

https://naarb.org//proceedings/pdfs/1983-1.pdf.

NAA Constitution and Bylaws, Article 2, Section 1, https://naarb.org/constitutions-and-by-

laws/.

189

important court cases and third-party inquiries about possible filings, and,

where appropriate, to recommend an amicus submission.

The Academy did not have a formal amicus committee until one was

formed in the early 2000s. Previously, a few individuals, usually law

professors, conferred about possible submissions. One key figure, David

Feller, represented unions in U.S. Supreme Court and other appellate

litigation before becoming a law professor and an arbitrator. He also became

an Academy president. During Professor Feller’s years in the Academy, he

was a lead or contributing author for seven amicus filings.

According to George Fleischli, a past Academy president, an amicus

committee was officially established during his presidential term in 2005-06.

The initial chair was Calvin Sharpe, a member from Ohio and a professor at

Case Western Law School. Subsequent chairs also had law school faculty:

Terry Bethel (Indiana), Dennis Nolan (South Carolina), Barry Winograd

(Berkeley), Stephen Befort (Minnesota), and Martin Malin (Chicago-Kent).

The amicus committee has usually numbered about a half-dozen

members, most often drawn from academic ranks. In the past decade or so,

the principal author for Academy amicus contributions has been Matthew

Finkin, a law professor at the University of Illinois.

For many years the amicus committee operated without formal

guidelines. Initially, as recalled by Dennis Nolan, a memo outlining the

general nature of the committee’s work was drafted in the 1990s by Alex

Elson, a member from Chicago. About 2006 Sharon Ives, a member from

Wisconsin, drafted procedural guidelines for the committee. A few years

later, when Professor Nolan was the ABAC chair, a subcommittee led by

Professor Sharpe developed guidelines largely in their current form.

The ABAC Guidelines provide that the committee makes a

recommendation to the Academy’s Executive Committee when a filing is

deemed worthy. The Guidelines specify several factors to be taken into

consideration:

(a) whether the Academy has a significant interest

in a case before the court, (b) whether there is consensus

on a viewpoint to advocate in the case, (c) whether

Academy resources are available for drafting the

submission, and (d) whether the likely impact of the

submission warrants the expenditure of resources.

The Guidelines include a detailed analysis for how each of these factors

should be weighed, including questions related to the subject matter of the

dispute, cost, timing, and availability of personnel.

Overall, the Academy has submitted eighteen amicus briefs. These

have largely addressed cases pending before the U.S. Supreme Court. Two

of the amicus briefs, known as interventions, have been written for the

Supreme Court of Canada. Four of the filings have been in lower appellate

U.S. courts, and two were in state courts. With few exceptions, all the

Amicus Brief Advisory Committee Guidelines, as amended,

https://naarb.org/documents/ABACGuidelines_Amended2015FEC.pdf .

190

Academy’s amicus briefs have been written by its members.

Arbitral Finality and Limited Judicial Review

The Academy’s submissions have advanced a few main themes. In

substantial part, the submissions have built upon U.S. Supreme Court

decisions that provide the foundation for modern labor arbitration under

collective bargaining agreements. These cases, known as the Steelworkers

Trilogy, bear a direct connection to Academy history.

The lead litigator for

the Union in those cases was Professor Feller, the author of several Academy

amicus briefs.

One of the main themes advanced by the Academy has been

preserving the special relationship of the courts to labor arbitration. The

Academy’s first amicus brief was in AT&T Technologies. In that case, the

Supreme Court in 1986 affirmed a lower court’s conclusion that a grievance

over layoffs was arbitrable, while clarifying, in accord with the Trilogy and

the Academy’s view, that a judicial order compelling arbitration should not

be denied unless there was an express exclusion from arbitration.

Another example was the 1997 brief in Bruce Hardwood Floors.

In that case, the Academy supported review by the U.S. Supreme Court of an

appellate line of authority that applied a broad approach touching on the

merits of arbitrator decision-making. The lower court had reversed a

discipline remedy ordered by an arbitrator instead of adhering to the finality

of the arbitrator’s determination. Review was denied by the Supreme Court.

Within a few years, the Academy’s emphasis on protecting finality

was affirmed in the Garvey case.

At issue was the Ninth Circuit’s reversal

of an arbitration award rejecting the salary claim of a major league baseball

player. The Garvey decision followed the precise path proposed by the

Academy, that is, a per curiam summary reversal of the appellate decision,

without full briefing or oral argument. In doing so, the Court adopted the

The following footnote references to the Academy’s amicus submissions include the case name

and court citation, a link when available for online reference with Westlaw, and notation of the

principal authors and year the brief was filed. Links to the briefs also are available on the

Academy’s website, https://naarb.org/amicus-briefs/.

Steelworkers v. American Manufacturing Co., 363 U.S. 564 (1960); Steelworkers v. Warrior

& Gulf Navigation Co., 363 U.S. 574, 578 (1960); Steelworkers v. Enterprise Wheel & Car

Corp., 363 U.S. 593 (1960).

See William P. Murphy, “How the Trilogy Was Made,” in Arbitration 1994: Controversy and

Continuity, Proceedings of the 47th Annual Meeting, National Academy of Arbitrators 327

(Gladys W. Gruenberg ed. 1994), https://naarb.org//proceedings/pdfs/1994-327.pdf.

AT&T Technologies v. Communications Workers, 475 U.S. 643 (1986):

https://1.next.westlaw.com/Document/Id93782926beb11d8b376ab6b13abf9f8/View/FullText.h

tml?listSource=RelatedInfo&list=Filings&rank=2&docFamilyGuid=Ic8251020721911d7b040

9d11d16b6b13&originationContext=filings&transitionType=FilingsItem&contextData=%28sc

.Search%29 (Feller 1985).

UBC Southern Council of Indus. Workers Local 2713 v. Bruce Hardwood Floors, 103 F.3d

449 (5th Cir.), cert. denied, 522 U.S. 928 (1997):

https://1.next.westlaw.com/Document/Id7d00ef5f8b711d8b38b85238391ed10/View/FullText.

html?listSource=RelatedInfo&list=Filings&rank=6&docFamilyGuid=Icc099320e79211d7b09f

ebd84702131b&originationContext=filings&transitionType=FilingsItem&contextData=%28sc

.DocLink%29 (Feller 1997).

Major League Baseball Players Assn. v. Garvey, 532 U.S. 504 (2001):

https://www.westlaw.com/Document/Iebc7ea67f84c11d8b80a9f6d63ee1f3d/View/FullText.ht

ml?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 ([Feller 2001).

191

Academy’s position, based on Enterprise Wheel,

that judicial review of an

arbitration award was designed to be final, and courts should not second-

guess factual findings and evidentiary rulings.

Several years later, in a brief written for the Sixth Circuit in

Michigan Family Resources,

the Academy again urged adherence to a

limited scope of judicial review of an arbitrator’s decision. The court

considered an arbitrator’s possibly erroneous reading of contract language. In

the absence of fraud or a conflict of interest, and as long as the arbitrator was

“arguably construing” the collective agreement, the arbitral award was to be

enforced.

The intersection of limited judicial review and public policy was

addressed in two amicus filings. In the first, the Misco case, the Supreme

Court, in accord with the Academy, stated that rejection of an arbitrator’s

award based on public policy was confined to circumstances tied to law, and

could not be based on disagreement with factual findings or evidentiary

rulings.

The public policy issue was addressed again in Eastern Associated

Coal.

The Supreme Court’s decision, consistent with the Academy’s

position, reaffirmed the principle of arbitration finality. In doing so, the

Court rejected the employer’s public policy objection to an arbitrator’s

reinstatement of a heavy equipment operator after a positive drug test. For

the Court, the correct issue for analysis was whether, under public law, the

parties themselves could contract for the outcome directed by the arbitrator,

and not whether the employee’s conduct was improper. This position had

been set forth a few years earlier in a law review article by Ted St. Antoine,

a professor at the Michigan Law School and co-author of the amicus brief.

The special character of labor-management grievance arbitration

was considered in depth in City of North Las Vegas by the Nevada Supreme

Court. The Academy, and later the court, rejected an individual grievant’s

claim that the arbitration decision in his case was improper because the

arbitrator owed a duty to disclose service on a different arbitration panel.

In reaching its decision, the court drew upon the ethical premises of the Code

of Professional Responsibility developed by the Academy, the Federal

Mediation and Conciliation Service, and the American Arbitration

Association.

Steelworkers v. Enterprise Wheel & Car Corp., supra note 5.

Michigan Family Resources v. SEIU Local 517M, 475 F.3d 746 (6th Cir. 2007) (en banc):

https://www.westlaw.com/Document/I52267e9563b011dbb29ecfd71e79cb92/View/FullText.ht

ml?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0. (Bethel 2006).

Paper Workers v. Misco, 484 U.S. 29 (1989). David E. Feller and William P. Murphy filed a

brief for the Academy urging reversal.

Eastern Associated Coal Corp. v. United Mine Workers, 531 U.S. 57 (2000):

https://www.westlaw.com/Document/I42d02fe16bf111d88a96cfc70562955d/View/FullText.ht

ml?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 (Feller & St.

Antoine 2000).

531 U.S. at 62, citing St. Antoine, “Judicial Review of Labor Arbitration Awards: A Second

Look at Enterprise Wheel and Its Progeny,” 75 Mich. L. Rev. 1137, 1155 (1977). As the Court

succinctly stated, “For present purposes, the award is not distinguishable from the contractual

agreement.” 531 U.S. at 62.

Thomas v. City of North Las Vegas, 122 Nv. 82 (2006):

https://naarb.org/documents/CityofNorthLasVegasvThomas.pdf. (Hawley & Sharpe 2004); not

in Westlaw.

192

Another facet of protecting labor arbitrator decision-making arose

in the context of a neutrality agreement to determine union recognition. In

Unite Here Local 355 v. Mulhall, the Academy contended a federal court

went too far by permitting a legal action to challenge a voluntary recognition

procedure that included an arbitration remedy and that already had resulted

in an award.

After briefing and oral argument, the Supreme Court found

that the petition for review had been granted improvidently.

The Academy’s interest in protecting the arbitration process is

evident in one of its few amicus filings outside the field of labor and

employment law. In Moore v. Conliffe, an Academy brief concurred with the

California Supreme Court’s application of the “judicial privilege” extending

statutory tort immunity to an expert witness deponent in a private contractual

arbitration involving the professional liability of a health care provider.

Beyond the area of labor arbitration under collective bargaining

agreements, a principal theme in the Academy’s filings has been protecting

the integrity of the arbitration process in the context of nonunion employment

relations.

This became increasingly important for the Academy as

mandatory arbitration procedures for statutory civil rights and discrimination

claims emerged as a condition of employment in the nonunion workplace

following the Gilmer decision of the U.S. Supreme Court in 1991.

That

decision extended a jurisprudential trend that emerged in the 1980s

expanding the reach of the Federal Arbitration Act.

After Gilmer, two actions by the Academy place in context the

attention paid by the organization to mandatory arbitration. In 1995 the

Academy joined other organizations representing neutral, employer, and

employee groups in adopting a Due Process Protocol.

The safeguards

spelled out in the Protocol included protection in arbitration of statutory

remedies, limited pretrial discovery, and bilateral selection of qualified

neutrals. These thematic principles were raised by the Academy in later

amicus submissions.

Nonunion Employment Arbitration

The first Academy brief in a nonunion employment case was in

Duffield.

In that proceeding, the Academy and the Ninth Circuit opposed

the mandatory arbitration of statutory civil rights discrimination claims. In

its brief, the Academy viewed the arbitration procedure established by a

Unite Here Local 355 v. Mulhall, 571 U.S. 83 (2013):

https://www.westlaw.com/Document/Id52cbc3b0e7811e38348f07ad0ca1f56/View/FullText.ht

ml?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

(Finkin & Winograd 2013).

Moore v. Conliffe, 7 Cal. 4th 634 (1994) (brief by Gentile & Drapkin); not in Westlaw.

See generally supra ch. 9, Dennis Nolan, “New Directions: The Academy’s Encounter with

Employment Arbitration.”

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).

A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of

the Employment Relationship (1995), https://naarb.org/due-process-protocol/.

Duffield v. Robertson Stephens, 144 F.3d 1182 (9th Cir. 1998) (Feller & Weckstein 1997).

The Ninth Circuit’s rejection of mandatory arbitration for statutory claims was an exception

nationally, and was overruled in a later Ninth Circuit decision, EEOC v. Luce, 345 F.3d 742 (9th

Cir. 2003).

193

securities organization as lacking fundamental fairness, citing among other

terms the arbitrator selection procedures, the imposition of forum fees, and

the absence of an explanatory opinion permitting effective judicial review.

Soon after, in Universal Maritime, the Supreme Court adopted a

view that had been advanced by the Academy.

In that decision, the Court

rejected mandatory arbitration of a statutory discrimination claim for an

employee otherwise covered by collective bargaining agreements, unless the

parties had negotiated a clear and unmistakable waiver authorizing individual

arbitration by the union of a statutory claim.

A year later, in Hooter’s of America, a mandatory employment

arbitration procedure was challenged in a Fourth Circuit case.

In particular,

the Academy objected to an employer-selected arbitration panel, a position

ultimately taken by the court of appeals.

Another Academy brief was submitted in Circuit City.

That case

concerned language under the Federal Arbitration Act that excluded

“contracts of employment of seamen, railroad employees, or any other class

of workers engaged in foreign or interstate commerce.”

As described

below, Academy leaders were not of one mind in approaching the dispute. In

the end, the Academy’s submission offered a construction of the exclusionary

phrase in the FAA that distinguished between salaried employees who would

be subject to the FAA, such as officers and managers, and other employees

who were “workers” as the word traditionally was understood. Those

workers, in the Academy’s view, should be excluded from FAA coverage, a

result that would have sharply limited the scope of Gilmer. The Supreme

Court, however, did not agree with this interpretation, and instead read the

statutory exclusion narrowly as applying only to transportation employees.

The Academy revisited the clear and unmistakable waiver doctrine

in its amicus filing in the Pyett case.

The Academy’s position favored the

As noted in the Academy’s brief, a resolution in 1997 states: “The National Academy of

Arbitrators opposes mandatory employment arbitration as a condition of employment when it

requires waiver of direct access to either a judicial or administrative forum for pursuit of statutory

rights.” Periodically since 1997, the Academy also has adopted guidelines for arbitrators in

handling mandatory arbitration cases. See, e.g., Guidelines for Standards of Professional

Responsibility for Arbitrators in Mandatory Employment Arbitration (2013),

https://naarb.org/guidelines-for-standards-of-professional-responsibility-in-mandatory-

employment-arbitration/.

Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998):

https://1.next.westlaw.com/Document/Ie096ec616bf011d8836ebb813d20b266/View/FullText.

html?listSource=RelatedInfo&list=Filings&rank=14&docFamilyGuid=I81a060

3071cb11d7a07084608af77b15&originationContext=filings&transitionType=Filings

Item&contextData=%28sc.Default%29 (Feller 1998).

Hooters of America v. Phillips, 173 F.3d 933 (4th Cir. 1999):

https://www.westlaw.com/Document/Ic78c4a3a664b11d8bb43a2b363faa3d0/View/FullText.ht

ml?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

(Weckstein 1998).

Circuit City Stores, Inc. v. Adams, 532 U.S. 106 (2001):

https://www.westlaw.com/Document/I53c489916bed11d8a7668c955f4269ea/View/FullText.ht

ml?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 (Feller 2000).

9 U.S.C. § 1 (2018).

14 Penn Plaza v. Pyett, 556 U.S. 247 (2009):

https://1.next.westlaw.com/Document/I66d6726c490f11ddbc7bf97f340af743/View/FullText.ht

ml?listSource=RelatedInfo&list=Filings&rank=9&docFamilyGuid=I66d6726d4

90f11ddbc7bf97f340af743&originationContext=filings&transitionType=FilingsItem

&contextData=%28sc.Default%29 (Finkin, Winograd & Oldham, 2008).

194

preservation of individual statutory arbitration claims from waiver under

collective bargaining arbitration procedures. The Court’s position differed

and upheld a finding of a negotiated waiver.

Class action issues also have been the subject of Academy briefs

dealing with whether mandatory arbitration agreements could require a

waiver of collective actions. In AT&T Mobility, a consumer arbitration, the

Academy objected to compelling an individual arbitration proceeding based

on a compulsory waiver of class actions that was contrary to governing state

law.

The Supreme Court’s view was otherwise. The AT&T Mobility

amicus brief was prepared by an outside attorney who assisted the Academy,

without charge, and consulted with the Academy’s Amicus Brief Advisory

Committee (ABAC).

More recently, in Epic Systems, the Academy opposed class and

collective action waivers related to wage and misclassification claims under

federal law.

The Academy, the National Labor Relations Board, and

individual plaintiffs argued that class claims constituted protected, concerted

activity under the National Labor Relations Act and the Norris-LaGuardia

Act. As described by the Academy, such claims could proceed in both

arbitration and in litigation and could not be subject to a waiver of the

employee rights. They were comparable to class claims or “policy

grievances” that have long been heard in traditional labor arbitration

proceedings. The Academy’s brief argued that rejection of its view could

result in procedural morass of repetitive individual claims, an outcome that

is unfolding as predicted.

Canadian Cases

In addition to amicus submissions in U.S. courts, the Academy has

filed briefs, known as interventions, in the Supreme Court of Canada. In

Canadian Union of Public Employees, the issue concerned who could serve

as the chair of an interest arbitration panel appointed by a government

minister to resolve a hospital labor dispute.

Consistent with the eventual

decision, the Academy urged that it was an error for the minister to appoint

retired judges as arbitrators by disregarding a statutory mandate requiring

experienced and impartial labor arbitrators. Michel Picher, a leading member

of the Academy in Canada and later president of the organization, was given

leave to offer oral argument to the court.

AT&T Mobility v. Concepcion, 563 U.S. 333 (2011):

https://www.westlaw.com/Document/Icb1d1098d2d911df952c80d2993fba83/View/FullText.ht

ml?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 (Feldman 2010).

Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (U.S. 2018):

https://1.next.westlaw.com/Document/I6bb44b8a82c711e79822eed485bc7ca1/View/FullText.

html?listSource=RelatedInfo&list=Filings&rank=18&docFamilyGuid=I6bb44b

8b82c711e79822eed485bc7ca1&originationContext=filings&transitionType=Filings

Item&contextData=%28sc.Default% (Finkin 2017).

See, e.g., Abernathy v. DoorDash, Inc., 2020 WL 619 (U.S. Dist.Ct. N.D. Cal. Feb. 10, 2020)

(order to compel arbitration; fees required of company on claims by over 5,000 individuals),

https://1.next.westlaw.com/Document/I6c0103304cc711eab6f7ee98676

0d6bc/View/FullText.html?originationContext=typeAhead&transition

Type=Default&contextData=(sc.Default).

Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29:

https://naarb.org/documents/MinistryofLabourforOntariovCanadianUnionofPublicEmployeesa

ndServiceEmployeesInternationa_000.pdf (Picher 2002).

195

More recently, in the Vavilov case, judicial deference to the decision

of an administrative tribunal was deemed subject to a presumption of

reasonableness, with reversal limited to the incorrect application of law or

breach of jurisdictional limitations.

Vavilov was a non-labor administrative

law dispute, but, as the Academy observed in its intervention, judicial review

in labor arbitration cases falls within a similar limited scope.

Disputed and Rejected Filings

There are few references to the Academy’s amicus filings in other

sources of the organization’s history. Two references should be highlighted,

however, as they reflect internal disagreement that is not commonly found in

the Academy’s decision-making about amicus briefs. In one, Ted St.

Antoine, then the Academy’s president, described how, after extensive

discussion by the Board of Governors, the Academy approved a Circuit City

filing prepared by Professor Feller.

Professor St. Antoine, also a former

union-side Supreme Court advocate, did not share a view that the

exclusionary text of the FAA should be broadly construed to bar FAA

coverage. He also believed, on pragmatic grounds, that a more limited

reading of the text would support greater employee access to an arbitration

remedy.

Professor Nolan also recalls that debate, and his opposition to the

Academy’s filing.

Professor Nolan did not see a sufficient consensus for an

Academy position favoring a broad FAA exclusion. He also believed that

the law under the FAA had moved in a direction away from the position

advanced by Professor Feller. Professor Nolan correctly predicted that the

Academy’s position would not prevail.

On one occasion, the Academy’s Executive Committee rejected an

ABAC recommendation to file an amicus brief. The case was pending in the

Second Circuit and concerned the football commissioner’s discipline of

player Tom Brady.

The ABAC urged that the commissioner was not acting

as a neutral arbitrator under the labor agreement, and therefore should not be

given deference under Enterprise Wheel and later cases, such as Garvey. In

opposing a filing, the Executive Committee observed that neither party to the

litigation had argued this position, and instead deferred to the contractual

language that had been treated as an arbitration by the parties.

The rejection in the Brady case was premised, in part, on the ABAC

Guidelines as then written, which limited the Academy to taking a position

on an “issue” raised by a party. Neither party in Brady had raised the issue.

Following this discussion, the ABAC Guidelines were amended slightly to

clarify that the Academy could file an amicus brief if the organization had a

“significant interest” in a case before a court.

On another occasion, the amicus committee declined to recommend

an amicus filing because of the limited time and resources available to

prepare a filing. That case, Rent-A-Center v. Jackson, concerned delegating

to an arbitrator, rather than to a court, a decision on whether an arbitration

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

St. Antoine Interview at 22-25, https://naarb.org/interviews/TheodoreAntoine.PDF.

Nolan Interview at 20-23, https://naarb.org/documents/DennisNolanbyBarryWinograd.pdf.

National Football League Management Council v. National Football League Players Ass’n,

820 F.3d 527 (2d Cir. 2016).

196

agreement was unconscionable.

About a dozen Academy members

eventually signed an amicus brief filed on behalf of “Professional Arbitrators

and Scholars.”

Conclusion

What can we say about the Academy’s amicus submissions? The

organization is volunteer-based, and thus it is not always easy to find a

member ready and willing to work on high-level appellate litigation. This

limitation also arises in an organization with members who hold opinions that

sometimes diverge shapely. Still, although there were no amicus briefs

between 1947, when the organization was founded, and the AT&T

Technologies brief in 1984, the Academy since then has expressed its views

every year or two. Perhaps this shift over many years is explained by changes

in the field of labor and employment law, with old policies dissipating and

new ones emerging. Perhaps, too, with an organization on more solid footing

after decades of work, the Academy is confident of its role as both a friend

of the court and an advocate for the institution of arbitration.

Rent-A-Center West v. Jackson, 561 U.S. 63 (2010):

https://www.westlaw.com/Document/Ib8819326436d11df9988d233d23fe599/View/FullText.h

tml?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 (Professional

Arbitrators and Scholars, Russell 2010).

Matthew Finkin

Dennis Nolan, Margery Gootnick,

and George Fleischli

David Feller

197

Chapter 11

EDUCATION AND TRAINING IN THE NAA

Elizabeth C. Wesman

Introduction

This chapter covers four categories of education and training in the

arbitration process. It begins with a brief history of the educational efforts

by NAA members and the Board of Governors during the Academy’s first

fifty years. Second, the chapter traces the development of training programs

for current NAA members, including what have become known as Skills

Enhancement Workshops (SEWs), usually held at the beginning of Annual

Meetings and Fall Education Conferences. Third, programs are reviewed

dealing with the education and training of non-NAA arbitrators and of NAA

members’ interns, including those offered by non-NAA agencies. The fourth

area is the training of advocates, which has taken place during national and

regional NAA meetings. There is also a look at the offerings of other

organizations such as the Federal Mediation and Conciliation Service

(FMCS) and the Labor Arbitration Institute, which recruit NAA members as

presenters for advocate training. Finally, I review recent and ongoing

developments in education as the NAA moves forward into a changing new

arbitration world.

As early as 1950 the Academy had a Research and Education

Committee. The Committee was formed partially in response to the

exhortation of a distinguished speaker, Edwin Witte, then Chairman of the

Economics Department at the University of Wisconsin, at the first NAA

meeting on January 16, 1948. At that meeting, Witte urged: “[The NAA’s]

fundamental purpose should be the advancement and improvement of labor

arbitration, in the interests of better labor-management relations and public

welfare.”

In a report included in the very first volume of the NAA

Proceedings, the Research and Education Committee declared: “Any

profession worthy of the name devotes a great deal of attention to the training

of practitioners in the field.”

The Committee concluded its report by stating,

“In the opinion of this committee, it is most fitting that the Academy, the

professional society of arbitrators, should make training for arbitration one of

its major concerns.”

In 1996 that Committee, which then included such

revered NAA members as Lewis Gill, Mark Kahn, Jean McKelvey, and Rolf

Quoted in James Oldham, “Our Fifty-Year Past: Rummaging and Rumination,” in Arbitration

1997: The Next Fifty Years, Proceedings of the 50th Annual Meeting of the National Academy

of Arbitrators 31, 35 (Joyce M. Najita ed. 1998).

“Report of the Committee on Research and Education: Education and Training of Arbitrators,”

in The Profession of Arbitration: Selected Papers from the First Seven Annual Meetings of the

National Academy of Arbitrators 1948-1954 at 171, 173. (Jean T. McKelvey ed. 1958).

Id. at 171.

198

Valtin, filed a report on the “Replenishment of Professional Arbitrators,”

which was also included in the Proceedings.

It was not until 1985, however, with the presidency of John

Dunsford and the persistent support of such NAA luminaries as Sylvester

Garrett and Arnold Zack, that the Research and Education Foundation (REF)

was established as a nonprofit entity separate from the NAA itself. Impetus

for the designation of the REF as a foundation originated with NAA member

Alex Elson, who had earlier proposed that structure to the Board of

Governors. The Board adopted the suggestion and Elson became the first

REF president. Arnold Zack was appointed vice president, and he succeeded

Elson as president.

Since its founding, the REF has supported academic research

regarding such timely topics as bias in arbitration and the extent of delay in

arbitration. It has also supported the development of educational materials.

Highlights include “A Labor Arbitration Case Study: The Suspension of

Nurse Kevin,” which is a realistic mock arbitration video designed for both

higher education classes and advocate training, and “The Art and Science of

Arbitration.” The latter is a 50-mimute documentary featuring such highly

regarded arbitrators as Frances Bairstow, Harry Edwards, Roberta Golick,

James Harkless, George Nicolau, and Theodore St. Antoine.

In recent years,

the REF has had an increasing role in NAA member education, sponsoring

speakers at the Fall Education Conferences by offering honoraria and travel

expenses to those non-NAA speakers who can address specific concerns of

Academy members.

The REF also provided seed money for the commencement of the

Arbitration Information Website. The website, ArbitrationInfo.com,

officially came online in 2015 and is discussed at greater length below.

Education of NAA Members and Advocates

Member Training

The last twenty-five years have found the NAA far more involved

in the education and training of its members, new nonmember arbitrators, and

advocates than when the Academy assembled a volume in 1997 to celebrate

its fiftieth anniversary. Despite that volume’s lack of coverage of the topic,

education has been a priority of many members of the NAA since its founding

in 1947. During the early years, programs were run under the auspices of the

NAA by such leading figures as Jean McKelvey, Eva Robbins, Peter Seitz,

and Theodore St. Antoine. Many current women members of the NAA

received their earliest practical training through Jean McKelvey’s programs

geared to bringing women into the field of labor arbitration and giving them

a good foundation in the “nuts and bolts” of an arbitration practice.

“Replenishment of Professional Arbitrators: Report to the Membership,” in Labor Arbitration:

Perspectives and Problems, Proceedings of the 17th Annual Meeting, National Academy of

Arbitrators 317 (Mark L. Kahn ed. 1964).

“Research and Education Foundation: Celebrating 35 Years,” The Chronicle, Spring 2020, at

15-18.

See generally https://naarb.org/how-to-apply-for-a-grant/.

Thanks to Arnold Zack for sharing his historic narrative on the early days of new arbitrator

training. As a fortunate beneficiary of Jean McKelvey’s program, I am grateful for the reminder.

199

In addition to the efforts of the Research and Education Foundation,

training has recently been offered for current NAA members at Annual

Meetings of the Academy and (until 2019) the Fall Education Conferences

(FECs). Training for advocates has also been offered at most recent Annual

Meetings, usually just prior to convening the general meeting. NAA

members have been involved in programs to train new nonmember arbitrators

as well as advocates through the American Arbitration Association, the

Federal Mediation and Conciliation Service, the National Association of

Railroad Referees, and the Labor Arbitration Institute. The remainder of this

chapter deals with each of those teaching opportunities separately. In

addition, there has been an upsurge in one-on-one mentoring of new

arbitrators, both formally and informally, by many NAA members. A specific

goal has been the increasing of racial, ethnic, and gender diversity among

arbitrators, to better reflect the realities of the labor-management

community.

A major effort to offer NAA members educational opportunities and

an open forum to discuss challenges all members face was provided for many

years by the Fall Education Conferences. FECs were open only to NAA

members and their interns. With the rare exception of a particularly relevant

guest speaker, FECs were limited to NAA-member session leaders and

panelists.

The formal FECs began in 1985, and in part replaced the

educational efforts of NAA Regions. Nonetheless, many Regions, including

those of the Southwest Rockies, the Southeast, and the Pacific Northwest,

continue to have active arbitrator and advocate education at their annual

regional meetings. The FECs were held over the course of a weekend, with

full-day Saturday and half-day Sunday sessions at each meeting.

FECs offered programs led by NAA members on handling difficult

evidentiary issues, effective award writing, dealing with subpoena requests,

and managing scheduling and case records. On the latter problem, for

example, NAA Arbitrator Mark Lurie developed an elaborate Excel

spreadsheet for keeping track of the status of cases from tentative scheduling

to submission of pre- and post-hearing briefs, travel and incidental expenses,

award writing, and billing. He shared the program with the Academy

membership gratis. Many NAA members now use the spread sheet and value

the orderliness with which it tracks our cases and keeps our records. More

recently, an FEC session supported by the REF dealt with “easing into

retirement,” a subject that also received coverage in an issue of the Spring

2020 Chronicle.

The last FEC meeting was held in Savannah in 2019. The NAA

Board of Governors, in a move approved by the membership, voted to

combine the training aspects of a members-only education conference with

the Annual Meeting. The aim was to increase attendance by members at the

Annual Meeting, while preserving what was recognized as valuable

opportunities for “in-camera” education in the FEC members-only

environment. In the wake of the COVID-19 pandemic and postponement of

For a fuller discussion of these efforts, see supra ch. 3, Homer C. La Rue & Alan A. Symonette,

“Arbitrator of Color,” and ch. 4, Kathryn VanDagens, “Women and the Academy.”

I owe a special debt of gratitude for assistance with the history in these sections of the chapter

to Arnold Zack, for his voluminous and crystal-clear historic memory, and to Kathleen Griffin,

for her above-and-beyond research into the NAA program archives.

200

the 2020 Annual Meeting, the NAA has yet to assess the effectiveness of that

new format.

Besides the members-only FECs, the Academy since 1995 has

offered on a relatively regular basis a Skills Enhancement Workshop (SEW).

An early one, presented prior to the FEC in 2002, was devoted to introducing

members to the latest developments in technology applicable to an arbitration

practice. Later SEWs have dealt with objections during a hearing, decision

writing skills, and the basics of employment (nonunion) arbitration. Other

sessions focused on arbitrating in particular industries, such as airlines and

the financial industry. These programs have been well attended and have

given members a further opportunity to hone their arbitration skills

surrounded only by NAA colleagues.

Additional opportunities for arbitrator training are provided by

organizations outside of the National Academy of Arbitrators. One such

program is the Federal Mediation and Conciliation Service’s Institute for

Conflict Management. As noted on the FMCS website: “Programs provide

participants the opportunity to interact with and learn from experienced

practitioners…[including] private sector arbitrators.”

The programs are

regularly staffed by NAA members and focus on specific areas of labor and

employment arbitration.

Advocate Training

In addition to offering training and education to NAA members, the

Academy in the early 2000s began offering a pre-conference workshop on

arbitration advocacy skills for labor and management advocates. Programs

varied between full-day and half-day presentations, depending upon the

topics offered. Formats included lectures, case studies, and “red light, green

light” sessions.

The stated goal of the advocacy workshops was to help advocates

on both sides of the table hone their preparation and presentation skills to

increase the efficiency and effectiveness of an arbitration hearing. The

workshops, whose faculties consist of NAA members and experienced

advocates, are attended by both labor and management advocates and are

particularly geared to advocates new to the field of labor arbitration.

Examples of some of the topics covered include “Opening and Closing

Statements,” “Nature and Role of Objections in Arbitration” (2003 Annual

Meeting), “Communicating Your Case to the Arbitrator” (2004 Annual

Meeting), and “Emerging Problems in Evidence” (2009 Annual Meeting).

The American Arbitration Association (AAA) also offers

educational programs for both arbitrators and advocates. Besides arbitration

workshops, frequently staffed by NAA members, the AAA holds an annual

National Labor Conference. The Association has an “On-Demand” Library

offering video training, and an extensive “Bookstore,” which includes

volumes on labor arbitration and mediation, as well as a Handbook of

Employment Arbitration.

In addition to the AAA and FMCS programs, the Labor Arbitration

Institute, based in Minnesota and headed by Peter Dahlen, offers workshops

See https://www.fmcs.gov/services/education-and-outreach/fmcs-institute/.

See https://www.aaaeducation.org/home.

201

around the country geared to giving both experienced and new labor and

management advocates a one-day or two-day “immersion” course in labor

arbitration and labor law. The classes are taught by NAA members and cover

such topics as rules of evidence, due process, and contract interpretation.

Education and Mentoring of New Arbitrators and Interns

At the Thirteenth Annual Meeting of the NAA, Arnold Zack

presented a report on “An Evaluation of Arbitration Apprenticeships.” Noting

the “advancing age” of the founding NAA membership, he expressed his

concern: “As far as is known, no specific program has been set forth for

expanding the corps of currently available arbitrators, or for the selection and

training of successors.”

He then went on to describe the sporadic and

infrequent availability of mentorship or apprentice relationships among the

NAA membership. At the time he found only eight NAA members in a

mentoring or apprenticeship relationship. Some apprentices were working

and paid full-time and others part-time. But many had little contact with labor

and management advocates and that limited their likelihood of being selected

as arbitrators themselves. By contrast, for those apprentices who were

introduced to the parties or who served as hearing officers during their

apprenticeships, acceptance as arbitrators by the parties was relatively rapid.

Their practices grew quite well following their internship periods.

Zack concluded his report by suggesting some ways of furthering

“the ultimate objective of training competent arbitrators in the same manner

that companies, unions and professions now train their replacements.”

Among those recommendations were “the formulation of a policy endorsing

the concept of apprenticeship as the most effective means of training

competent arbitrators,” and “the development of a clearing house where

individuals interested in entering arbitration could obtain information as to

the nature of, and qualifications for, apprenticeships.”

As was noted earlier,

many programs of the kind urged by Zack, both formal and informal, were

initiated by NAA members in the 1970s and early 1980s. Some of these were

official NAA-sponsored workshops. Others were the projects of NAA

members who took it upon themselves to become resources for new

arbitrators, enabling them to polish their skills and eventually become

Academy members.

Article 1.C.4 of the Code of Professional Responsibility for

Arbitrators of Labor-Management Disputes provides: “An experienced

arbitrator should cooperate in the training of new arbitrators.”

To the

Academy’s credit, individual members, NAA Regions, and other

organizational bodies have taken that standard to heart and have provided

mentoring and training programs for new arbitrators. This helps them

sharpen their skills and in time become members of the NAA, thus bringing

in the much-needed “new blood” that keeps any organization vibrant and

Arnold Zack, “An Evaluation of Arbitration Apprenticeships,” in Challenges to Arbitration:

Proceedings of the 13th Annual Meeting, National Academy of Arbitrators 169 (Jean T.

McKelvey ed. 1960).

Id. at 171-172.

Id. at 175.

Id.

See https://naarb.org/code-of-professional-responsibility/.

202

current. There is no dispute that the percentage of unionized labor,

particularly in the private sector of the economy, is declining. Recently even

public sector unions have been decimated by some states’ legislation.

However, three countervailing factors suggest there is still room for new

arbitrators. First, the median age in the National Academy of Arbitrators is

now above 60 years of age. Second, nonunion employment arbitration

appears to be a growing segment of our profession. Third is the growing

interest in sharing our experience internationally with other countries seeking

to develop a robust labor-management arbitration system.

In the June 2020 NAA Newsletter, former President Margaret

Brogan presented an update on the Outreach Committee’s training and

mentoring initiatives for newer arbitrators, “with a goal to increasing

diversity and inclusion in our profession.”

Among the ongoing efforts she

noted were an arbitrator training day, led in February 2020 by Beber Helburn

as part of the Southwest Rockies Region, and the Newer Arbitrator Salon

jointly created by the Mid-Atlantic and DC/Maryland Regions.

In addition,

many members of the Academy offer one-on-one mentoring relationships on

a regular basis to new arbitrators – several of whom have now become NAA

members.

Among the non-NAA efforts are the FMCS ongoing programs on

“Becoming a Labor Arbitrator” (BALA) and the National Association of

Railroad Referees (NARR) program offered in the late Spring of 2015. The

NARR program’s goal was to introduce new arbitrators and arbitrators new

to the railroad industry to the processes and traditions of dispute resolution

under the Railway Labor Act. Although it was held only once, many of the

graduates have become successful NARR referees and a few have already

become new members of the NAA.

The FMCS arbitrator training programs are run twice a year and

participation in the programs reduces the standard requirement for aspiring

arbitrators to be listed on the FMCS roster. For example, attending arbitrators

need provide only one arbitration award rather than two for admission to the

FMCS arbitration roster. Moreover, attendees who have completed the

BALA course can apprentice to an NAA arbitrator. Since 2019 apprentices

are expected to attend at least three hearings with a NAA member arbitrator-

mentor and write up a mock award for the mentor’s review and critique for

at least two of those cases.

NAA members constitute the faculty for the

arbitration presentations of the BALA courses, which consist of 35 classroom

contact hours.

Margaret Brogan, “Outreach Committee Update,” NAA Newsletter, June 2020, at 3-5.

Id. at 4.

See https://www.fmcs.gov/services/education-and-outreach/fmcs-institute/becoming-labor-

arbitrator/.

Id.

203

ArbitrationInfo.com Website

At the 2013 Annual Meeting in Vancouver, British Columbia, a

committee of five presidents (former and current) discussed establishing an

NAA-sponsored and NAA-supervised website to serve as a resource to

educate students of labor arbitration generally and journalists in particular

regarding labor arbitration. In a letter to then-President James Oldham,

former President Gil Vernon suggested that such a website should contain,

among other things: “A basic primer or FAQ’s on arbitrations and

arbitrators,…lists of educational resources,… and treatment of ‘hot’ or

current issues in arbitration.”

That letter was in large part the culmination

of many discussions among NAA members, both formal and informal, of the

popular media’s interpretation and misinterpretation of the part that

arbitration plays in labor-management disputes. The bottom line was a

proposal to educate students of labor arbitration and journalists writing on

labor-management arbitration issues, as well as to provide a reference

resource for the labor relations community as a whole.

At the 2015 FEC the Research and Education Foundation Directors

agreed to approve a grant for “seed money” to establish an arbitration

website. It was to be a combined project of the NAA in partnership with the

University of Missouri. Past President Kathleen Miller headed the NAA

advisory committee, and Professors Robert Bailey and Rafael Gely of the

University of Missouri Law School as well as students at the University of

Missouri’s School of Journalism, were instrumental in the construction of,

and final launch in 2015 of, the ArbitrationInfo.com website. Past President

Gil Vernon and Professor Gely were the site’s original editors. The site

includes an extensive glossary of arbitration terms and definitions, a section

of Frequently Asked Questions (FAQs), seminal articles on labor arbitration,

and current arbitration news with introductions or comments by NAA

members and University of Missouri Law School students.

In the five years since the ArbitrationInfo.com website’s launch,

subscriptions to the site have increased each year and the site has received

favorable feedback from journalists and academics. The feedback from

journalists has been uniformly positive. Professor Gely, with the assistance

of his students, also monitors media coverage of labor arbitration and refers

journalists to the website to assist them in ensuring the accuracy of their

coverage. In addition, a special committee to oversee the website was

approved by the Board of Governors. Committee members contribute

articles of their own and provide scholarly commentary on select media

articles, as well as on judicial and federal administrative decisions affecting

labor arbitration and labor relations.

All credit for the details in this section goes to former Presidents Shyam Das, Kathleen Miller,

and Gil Vernon, and to NAA member Rafael Gely, with thanks. For the website itself, see

https://law.missouri.edu/arbitrationinfo/.

Letter from former President Gil Vernon to then-current President James Oldham, October 8,

2013.

204

Outlook for the Future

In keeping with its dedication to the education of members,

nonmember arbitrators, and advocates, the NAA clearly needs to continue a

ramped-up effort on its part. As noted above, several NAA Regions have

vibrant education programs. Those programs enable new arbitrators and

advocates who might find attendance at an Annual Meeting financially

burdensome or inconvenient an opportunity to learn from NAA members in

their geographic area. The labor-management environment is evolving, and

education is the key to remaining “relevant” in that environment.

A recent example of the NAA’s response to a rapidly changing

environment was the establishment of a Video Conferencing Task Force

(VTF) to educate members on the challenges and promise of conducting

hearings via video conferencing rather than in person.

That education

became vital during the recent Covid-19 pandemic and is likely to continue

for the foreseeable future. Following a joint NAA and FMCS training video

in April 2020, the VTF offered several training videos to assist members in

setting up and running video conference arbitration hearings. In response to

ethical questions raised by video conferencing, the NAA Committee on

Professional Responsibility and Grievances issued Opinion No. 26, dealing

specifically with the challenges facing the arbitrator (and advocates) in a

video-conducted hearing.

In the quarter century since publication of Fifty Years in the World

of Work,

the NAA has made a serious and very successful effort to become

a source of timely, high quality education for NAA members, non-NAA

arbitrators, labor and management advocates, and the general public. It is a

tribute to the founding members that the organization has made these efforts,

and a credit to all NAA members that they have been so willing to support

them in a variety of ways, all to the great benefit of the labor relations

community. And there is no sign that those efforts will not continue and

expand to meet the challenges inherent in the changing practice of arbitration

in the next twenty-five years.

See https://naarb.org/latest-news/.

See https://naarb.org/wp-content/uploads/2020/04/CPRG-Advisory-Opinion-26-4.2020.pdf.

Gladys W. Gruenberg, Joyce M. Najita & Dennis R. Nolan, The National Academy of

Arbitrators: Fifty Years in the World of Work (1997).

205

Chapter 12

THE ACADEMY AND THE FTC

Richard I. Bloch

Shortly after I became President of the NAA in 2002, David

Petersen, the newly elected Secretary-Treasurer, advised me that the Federal

Trade Commission (FTC) was “after us.” Prior to that bombshell, Dave and

I had met on several occasions to anticipate the standard needs of the

Academy in the upcoming year. Meeting sites, committee chairs, finances,

and a host of other normal, if daunting, issues had been the subject of our

discussions. But this agenda item was very different and the source of

immediate and considerable concern. The FTC was alleging the Academy's

Code of Professional Responsibility, which contained, among other things, a

ban on arbitrator advertising, violated the law. The Agency’s complaint

stated, in relevant part:

Pursuant to the provisions of the Federal Trade

Commission Act, as amended, 15 U.S.C. § 41 et seq, and

by virtue of the authority vested in it by said Act, the

Federal Trade Commission, having reason to believe that

the National Academy of Arbitrators…, a corporation, has

violated and is violating the provisions of Section 5 of the

Federal Trade Commission Act, and it appearing to the

Commission that a proceeding by it in respect thereof

would be in the public interest, hereby issues this

Complaint, stating its charges as follows:

***

PARAGRAPH 6:

Respondent NAA, acting as a combination of its

members, and in agreement with at least some of its

members, has acted to restrain competition by restricting

advertising and solicitation by its members.

PARAGRAPH 7:

The combination and agreement alleged in

Paragraph 6, consists of respondent NAA adopting and

maintaining provisions in its Code of Professional

Responsibility for Arbitrators of Labor – Management

Disputes and Formal Advisory Opinions that restrain

Arbitrators from engaging in truthful, non-deceptive

advertising and solicitation, regardless of whether such

advertising or solicitation compromises or appears to

compromise Arbitrators' impartiality.

206

PARAGRAPH 8:

The acts or practices described in Paragraphs 6

and 7 restrain competition unreasonably and injure

consumers by depriving consumers of Arbitrators' services

for labor – management disputes of truthful, non-deceptive

information and of the benefits of free and open

competition among Arbitrators.

PARAGRAPH 9:

The combination, agreement, acts and practices

described above constitute unfair methods of competition

and unfair acts and practices in violation of Section 5 of the

Federal Trade Commission Act, as amended, … such

combination, agreement, acts and practices, or the effects

thereof, are continuing and will continue or recur in the

absence of the relief herein requested.

The relief requested by the Government was for the Academy to

discontinue its ban on advertising.

The debate over whether professionals could advertise was by no

means new. Bar associations had for years prohibited attorney advertising,

as had other professional groups until the Supreme Court’s 1977 decision in

Bates v. State Bar of Arizona

upheld a lawyer’s right to advertise services.

As a result, the FTC sought to ensure the demise of advertising bans by

issuing a host of similar citations to various organizations. Those included

the American Arbitration Association (AAA), which, along with the Federal

Mediation and Conciliation Service, had drafted and co-signed the

Academy's Code of Professional Responsibility.

The FTC’s demand was that we remove the ban, and that we codify

our acquiescence by signing a consent decree that would require filing a

compliance report annually for 20 years.

The American Arbitration Association, for its part, flatly refused the

Government's demands. In response the FTC dropped the matter against the

AAA, in my view not because of a change of heart, but because it recognized

it could achieve its goals by pursuing smaller, and far more financially

vulnerable, organizations like ours. That point was made abundantly clear to

me in the first of our series of negotiations during the latter part of 2002 when,

during one of the early meetings with the Agency, I suggested we would have

to let the courts decide the question. The FTC representative smiled

condescendingly and advised that the first thing they would do would be to

subpoena all our business records from the inception of the organization

forward. The burden and expense of responding to discovery demands, I

knew, would drain our treasury in no time.

It soon became clear that our efforts to retain the ban should be re-

directed toward ensuring the Consent Decree would recognize that the

posture of dispute-resolution neutrals is uniquely different from that of

advocates. Following negotiations that stretched over a period of months, we

433 U.S. 350 (1977) (lawyer advertising is commercial speech protected by the First

Amendment of the U.S. Constitution).

207

agreed to remove the ban. However, we were able to persuade the FTC to

include language that retained an announced opposition to catering to one

party or the other, or engaging in inappropriate solicitations. As a condition

of signing the Consent Decree, we insisted, successfully, that the final Order

contain the following language:

PROVIDED FURTHER THAT nothing

contained in this Part shall prohibit Respondent from

formulating, adopting, disseminating to its members and

enforcing reasonable ethics guidelines governing conduct

that Respondent reasonably believes would compromise or

appear to compromise the impartiality of Arbitrators. Such

guidelines shall not prevent Arbitrators from disseminating

or transmitting truthful information about themselves

through brochures and letters, among other means;

provided further, however, that in the event that the NAA

determines that the dissemination or transmission of such

material may create an appearance of partiality, the NAA

may promulgate reasonable guidelines that require, in a

manner that is not unduly burdensome, that such material

and information be disclosed, disseminated or transmitted

in good faith to representatives of both management and

labor.

The essence of this proviso is included in the current Code in Section

1.C.

My participation in this unsettling event was, for me, both

enlightening and, it should be added, emotional. Except for some five years

teaching (while arbitrating) the entirety of my professional career had been

as a full-time arbitrator and mediator. To be sure, I had spent many days and

nights in negotiating sessions and hearings, but always sitting at the end of

the table. As arbitrators, we pride ourselves on the ability to focus on the

issues, to search, methodically, for the correct answer, weaving our way

through the passions and the posturing of the parties’ presentations to fulfill

our charge as readers of the contract. But, as party cum gladiator, I was just

plain angry – incensed at the notion of our Government’s having dared to

accuse my organization, my friends, my professional home, of breaking the

law. As a party, I didn’t behave particularly well.

Our retained counsel, a brilliant, savvy woman who had recently left

the FTC’s General Counsel’s office (I suggested to her that she had left to

mend her ways) was faced with the task of both pleading our case and dealing

with my petulance. I distinctly remember the numerous times she would

kick me under the table in a generally vain attempt to secure my better

behavior in the meetings. In at least one session, I accused the FTC

representative of extortion, confining the Agency's attack to minuscule

organizations like ours that couldn't afford the costs of litigation, all for the

purpose of putting a personal notch in his belt. Our counsel was even less

enthralled when, on another occasion, I told the Agency advocate of my

dream that when he was discharged, his case would be heard by an arbitrator

See https://naarb.org/code-of-professional-responsibility/.

208

selected from the yellow pages who handed out branded ballpoint pens at

hearings.

The reaction to the advertising question within the Academy itself

was also for me a difficult and, in some respects, a personal matter. The

debate over whether to advertise was serious and very sensitive. On the one

hand there were the long-time senior members of the Academy, many of

whom had been founders of the group, who respected the profession of

arbitration that they themselves had pioneered and had molded it with a

respect verging on reverence. The notion that we would allow ourselves to

descend to the level of practitioners hawking their wares publicly threatened,

in their view, to degrade the power of a quasi-judicial forum and the desired

prescience of a labor-related peacemaker. On the other side were devoted

professionals who agreed fully that arbitrators should avoid any activity that

could be construed as compromising impartiality but who did not believe all

advertising should thereby be banned. Some thought, for example, that

individual nonunion grievants, and even small or independent local unions

and employers, could benefit significantly from ready access to information

about available arbitrators.

I, personally, was of the old school. I was convinced, however, that

the FTC's threats to impose widespread discovery demands would bankrupt

us in short order. This, taken together with the negotiated proviso cited

above, in my view adequately expressed our concerns about the challenges

to impartiality and informed my position that, all things considered, we

needed to reach an agreement.

My view was not shared by three of my very closest friends in the

Academy (therefore, in my life), Benjamin Aaron, Rolf Valtin, and David

Feller. Ben was one of the founders of the Academy and one of its first

presidents. Rolf and David were also past presidents. All had been generous,

caring mentors, cheerleaders, and go-to consultants and confidants to me on

matters personal and professional. And all three stood staunchly opposed to

my plan to yield to the Federal Trade Commission and to execute the Consent

Decree. It was with no joy and no sense of satisfaction whatsoever that I was

able to prevail in the final vote of the Academy membership, at the 2003

Annual Meeting in San Juan, to remove our advertising ban and accept the

settlement.

As I write this, we are a scant two years shy of having “done our

time.” To my knowledge, we have served the consensual sentence without

incident. I will concede that the world of dispute resolution has been neither

demeaned nor diminished by the availability of reasonable self-promotion

and I remain convinced that, financially, this was a dispute that needed to be

resolved consensually, short of litigation.

However… in the final analysis, while I continue to believe any

advertising is antithetical to the neutral posture of an arbitrator, and while I

still conclude that, on balance, settlement was the more prudent course, I have

always harbored the nagging thought that if the three of my favorite giants,

who had given birth and vitality to the organization, were willing to fight the

good fight, perhaps I should have joined them in leading the rebellion.

209

hapter 13

TECHNOLOGY

Mark I. Lurie

Historical Developments

In 1997, the year of the National Academy’s 50th anniversary, four

communications technologies were introduced: broadband internet

transmission, image-capture (CMOS) chips, white light-emitting diodes

(LEDs), and cellular telephony. During the ensuing quarter-century, those

technologies would revolutionize professional and social communications,

change the ways in which the parties to arbitration proceedings

communicated, and give rise to new conflicts requiring arbitration. An

examination of those changes best starts by recalling how things were at that

50-year mark.

In 1997 an arbitration case assignment – from the American

Arbitration Association (AAA), the Federal Mediation and Conciliation

Service (FMCS), or the parties directly – came to the arbitrator as physical

correspondence, delivered by the U.S. Postal Service. The arbitrator’s

response was also written on paper and physically conveyed. Email service,

which had been introduced the previous year by AOL, Hotmail, Lycos,

Mail.com, and Yahoo, was as yet unfamiliar and untrusted. Internet service

was intermittent, and the chirping of a 56Kbps modem communicating over

a telephone line instilled little confidence. A transmission protocol for email

attachments was adopted in 1996, but its practical use had to await faster and

more confidence-inspiring internet service. In sum, as of 1997, arbitrators,

agencies, and advocates remained anchored to paper and its physical

exchange from hand-to-hand, with a dollop of mechanized postal sorting.

In 1997 the time required for a 56Kbps modem to “paint” a

computer screen meant that the use of online websites was a

counterproductive means by which to purchase products and services.

Instead, arbitrators traveling to distant hearings often obtained local hotel and

restaurant recommendations from a Fodor, Zagat, or American Automobile

Association travel guide. Airline ticketing was done by calling an airline

desk or a travel agent. (The airlines did not charge for those services, and

travel agents’ fees were paid by the airlines.) Written itineraries and tickets

would arrive in the mail several days later.

Charting a course to drive from the airport to the hotel, from the

hotel to the hearing site, and from the hearing site back to the airport was

done with a Rand McNally Atlas, gas station map, or “Triptiks” from the

American Automobile Association. Online programs such as MapQuest

were still a year off, and commercially available GPS devices were four years

away.

A telephone pager (a.k.a. “beeper”) provided communications

accessibility; public phone booths were everywhere. For early adopters, a

2G flip-phone or Razr phone might put you in instant contact, provided that

210

you were in a location that had a signal. The phrase “can you hear me now”

became a cliché; “airplane mode” was an unknown term.

If an arbitrator packed a camera, it might have been a 35mm point-

and-shoot. The cost per photo was about 40 cents, counting the film, negative

development, and printing. In 1997 a digital camera like the Minolta Dimage,

cost $300 and had a resolution of 320 x 240 pixels (less than 1% of the

resolution of 2020 smartphone cameras). Nonetheless, that resolution was

suitable for the 800 x 600 pixel capabilities of that year’s SVGA monitors.

The first cellular telephone that incorporated a camera, the Kyocera VP-210,

went on sale in 1999.

Upon arriving at the destination airport, the arbitrator might have

been advised by their office that a subpoena pertaining to the next day’s

hearing had arrived by fax. The arbitrator might have had the subpoena

forwarded by fax to their hotel, to be signed and faxed a third time, back to

the requesting advocate. The result would be a fax of a fax of a fax, its

legibility degraded with each iteration.

A laptop computer for taking notes, like the IBM Thinkpad, cost

$2,300. Its battery life was four hours; airports offered few power outlets and

airplanes offered none.

Making an audio recording of the proceedings entailed inserting and

flipping sequential microcassettes, while noting the order in which they were

used. Later, digital transcripts provided easier access to portions of the

transcript and, like other digital documents, could be more useful in studying

and drafting decisions. The first commercially practical voice dictation

program, Dragon Naturally Speaking, was first released in 1997.

By the early 1990s, many arbitrators had migrated from typewriters,

longhand, or dictation to a secretary to word processors, sometimes

augmented by voice dictation. The predominant word processing program

was then WordPerfect. But the incompatibility of WordPerfect with a new

release of Microsoft Windows gave Microsoft’s Word an advantage.

Instructions in how to use Word were contained in the 700-page Microsoft

Office 97 manual, termed “documentation.” YouTube and online video

tutorials did not then exist. Today Word predominates, although

WordPerfect is still preferred by many in the legal profession.

By 1997 inkjet and laser printers had replaced dot matrix, yielding

higher quality text while operating more quietly. Arbitration decisions

usually were mailed. For the AAA, that meant mailing six copies plus a case

report; for FMCS cases the advocates might be sent two copies each, with a

printed R-19 case report going to the FMCS.

Accounts receivable were tracked using either a spreadsheet or a

basic accounting program, such as Quicken. And past-due accounts were

dunned by phone and in writing via the U.S. mail. Arbitrators who had

maintained paper calendars migrated to Google Calendar, Apple Calendar,

Microsoft Outlook Calendar, or to the calendars that came with custom

website packages. Or they adopted a Case Management Program created for

Academy members, which tracks cases from their initial scheduling through

the receipt of payment and expense accounting.

As of 1997 the National Academy’s Code of Professional

Responsibility prohibited advertising and solicitation. Few arbitrators carried

211

business cards, and none anticipated that one day arbitrators would have

websites describing their credentials and experience.

In 1997 the speed of written communications was that of the mail

truck, the processing and distribution center, and the letter carrier or package

delivery person. Pick-ups and deliveries were once a day. But in that year

commercial broadband service debuted with transmission rates that made

email attachments possible. The advantages of attachments – convenience,

immediacy, negligible cost, and a permanent transmission trail – were too

compelling to be ignored. Seemingly overnight, email (with attachments)

became the accepted means of written communications among employers,

employees, unions, arbitrators, advocates, assigning agencies, the

government, and the public at large.

By the National Academy’s three-quarter-century mark, technology

had transformed documents from physical objects to digital files

transmittable at nearly the speed of light, at essentially no cost, and to one or

many recipients. Documents that once were stored in file folders could be

saved on submicroscopic RAM or in the cloud, and at insignificant cost. The

entire text of the Encyclopedia Britannica could be stored 64 times over on a

solid-state memory card the size of a thumbnail that cost less than $10.

Envelopes, letterhead, stamps, file cabinets, Rolodex cards, staples, three-

ring binders, and report covers became anachronisms. The AAA and FMCS

started sending case assignments as pdf email attachments, to which

arbitrators responded by email. Scheduling letters, motions, rulings, briefs,

exhibits, transcripts, and the arbitration decision and arbitrator’s invoice were

sent by email attachment. Subpoenas were emailed, digitally signed and

returned in minutes, regardless of where the arbitrator was at the time. An

arbitrator receiving an AAA appointment letter and oath might use a pdf-

editing program such as Nitro Pro, Adobe Acrobat or PDF Architect 6 to

digitally extract the oath page, type entries (for example, proposed hearing

dates), insert a digital signature, and return the document, all without using

paper, envelopes, or postage.

Source: FCC

Broadband also changed the ways arbitrators make their travel

arrangements. In 2002 airlines stopped paying travel agencies commissions

for airline bookings, and now they redirect travelers to their websites. The

flying consumer has become in essence an unpaid booking agent, with the

associated burdens but also with the benefits of greater control over routing,

timing, seating, and cost selections. Rental car and hotel reservations have

212

become quicker and easier to make. Free online services such as Expedia,

Travelocity,

Yelp, and Google Hotels offer hotel reviews that are more

current and accessible than those of printed travel books. And Open Table

(which facilitates making a reservation), Zagat, Yelp, Google Maps (which

displays the restaurants near you), and TripAdvisor furnish restaurant

reviews.

Online free mapping services spelled the demise of printed road

atlases. Prior to 2000, the U.S. military did not allow commercial GPS

devices to be sufficiently precise for use by the public but in that year that

constraint was removed. Garmin, Magellan, and Navman offered competing

lines of GPS that rendered printed maps obsolete.

Broadband service also changed the economics of book publishing

and distribution. For many works, the printed page became antediluvian.

The Encyclopedia Britannica ceased print publication in 2010. Similarly, the

Proceedings of the National Academy of Arbitrators, the annual hardback

recording meetings of the National Academy of Arbitrators and published by

BNA for 60 years, had its last conventionally bound printed volume in 2019.

The Proceedings feature authoritative commentary and research pertaining

to arbitration in labor management relations. More than a decade earlier, the

Academy had acquired the digital rights to the Proceedings from BNA and

published all the annual volumes online. The Proceedings remain available

at the National Academy’s website.

Also available at that website is

ArbitrationInfo, a website offering comprehensive, current, noncommercial,

and neutral information about arbitration in the workplace. ArbitrationInfo

was created by the National Academy and the University of Missouri

School of Law’s Center for the Study of Dispute Resolution.

The development of image-capture silicone chips paralleled that of

other integrated circuits

and enabled the development of economical

document scanners. The marriage of such scanners with optical character

recognition software permitted arbitrators to scan and store exhibits as

“searchable” pdf files, in which text could be readily found, copied, and

pasted without retyping.

Future generations will find it remarkable that there was a time

when, in order to receive a phone call, the recipient had to be near a particular

wall-wired telephone at the moment the call was made. In the United States,

cellular telephone service was introduced in 1983 with the shoe-sized

Expedia acquired Travelocity in 2015.

See www.naarb.org.

The website was made possible by a grant from the NAA Research and Education

Foundation, which was founded in 1985 to further the educational and training purposes of the

National Academy of Arbitrators. See generally supra ch. 11, Elizabeth C. Wesman,

“Education and Training.”

Gordon Moore, CEO of Intel, predicted in 1965 that the number of components per integrated

circuit would double annually. In 1975 he increased the interval to every two years. His

prediction has come to be known as “Moore’s Law.”

With digitized exhibits, a computer file folder automatically displays exhibits in the order of

their exhibit numbers. Since each exhibit has a file name, the task of identifying an exhibit has

been simplified. An arbitrator with a “paperless” office need no longer refer to an exhibits list

to ascertain an exhibit number, and then sort through a pile of documents for that number.

Scanned exhibits were immediately accessible, occupied no file drawer space, and were

portable.

213

Motorola DynaTAC 800x.

Verizon became the first major U.S. carrier to

offer wireless broadband 3G service in 2002

and, with it, cellular telephone

high-speed internet access.

By 2015 the number of households with cellular

telephones and with no landlines exceeded the number of households with

landlines.

Source: World Bank, Mobile Cellular Subscriptions in the United States [ITCELSETSP2USA],

retrieved from FRED, Federal Reserve Bank of St. Louis,

https://fred.stlouisfed.org/series/ITCELSETSP2USA (October 4, 2019).

In 2007 Steve Jobs combined cellular telephony, broadband, CMOS

sensors, and LCD touch screens into a sleek, light-weight, palm-sized

instrument that he named the iPhone. It was the first “smartphone”: a device

with most of the capabilities of a computer in a gizmo that could fit into a

pocket or purse. Other manufacturers copied Apple’s design and

smartphones proliferated, replacing GPS units,

voice recorders, and

cameras (both photo and video) and other devices.

The DynaTAC cost about $4,000 (equaling $10,000 in 2020), had a 30-minute talk time, took

10 hours to charge, and was serviced by an unsecured 1G network, meaning that people could

listen in. Nicknamed “The Brick,” the DynaTAC made its movie debut in the 1987 film Wall

Street.

Mobile phone terminology: 1G is Analog cellular; 2G is Digital cellular; 3G is mobile

broadband; 4G is 3G times 500; and 5G is 4G x 100.

3G featured encryption and data and text messaging, and some 3G phones offered

rudimentary touch screens for features such as a calendar, address book, and email.

Source: The Centers for Disease Control’s 2018 biannual National Health Interview Survey of

Households.

Google coalesced its mapping program with GPS, satellite images, street photos, and real-

time traffic information to produce the Google Maps routing program. Another GPS program,

Waze, developed in Israel and acquired by Google, used the street locations of its users and the

drivers’ voluntary traffic reports to calculate the shortest driving times.

214

Source: Statista.com

Smartphones became a means for making and changing plane, train,

car, and hotel reservations, and for storing and displaying boarding passes

and receiving travel notifications. Free voice-recording apps, such as Voice

Recorder Pro, enabled arbitrators to record tens of hours of high-resolution

audio in a single, uninterrupted track. Important testimony by witnesses

could now be quickly located by noting the recording start time of the

hearing, and the times at which the pertinent testimony was given.

New technologies introduced new opportunities for conflict in the

workplace and thus new issues to be arbitrated. In researching this chapter,

the author read approximately 450 arbitration decisions

dealing with,

among other things, computer hacking, keystroke and login tracking

(including HIPAA violations), biometrics, body cameras, cell phones, GPS

and location tracking, surveillance cameras, social media (including

Facebook, Instagram, Twitter and email), and computer and internet misuse

and malware. In the remainder of this chapter, the author has selected for

consideration a few topics that he believes are of widespread special interest.

Video Recording and the Use of Body Cameras in Law Enforcement

Police body cameras and the ubiquity of personal smartphone

cameras have affected the conduct of law enforcement officers, and the

investigation and disciplining of police misconduct. In practice (as gauged by

statistics), the prevalence of video recording has constrained officers to use

force less frequently, less vigorously, and later in encounters, and in doing so

may also have created greater risks for officers’ safety. According to a 2016

study of 2,000 law enforcement officials in the United Kingdom and the

United States, those who wore body cameras were 15 percent more likely to

be assaulted on the job than those who did not.

State laws vary about whether police bodycam videos are public

records. For those states in which they are, prejudicially selective video

The author thanks Bloomberg Law for making its database available, and also thanks those

members of the National Academy of Arbitrators who furnished decisions for this chapter.

Will Aitchison & Dan Swerdlow, “The Continuing Dilemma of Police Body Cameras: The

Police Perspective,” in Boundaries and Bridges, Proceedings of the 71st Annual Meeting,

National Academy of Arbitrators 229, 233 (Timothy J. Brown ed. 2019).

215

extracts (for example, the writhing of a tasered suspect) broadcast on the news

or over public media have sometimes made it appear that an officer acted

maliciously, even though the use of force may have been justified under the

circumstances. Such a public perception can harm the reputation of law

enforcement agencies and subject their employees to unwarranted scorn and

public hostility.

On the other hand, video recordings can reveal when police action,

including deadly force, has been unwarranted, most perniciously in cases of

invidious discrimination. In June 2020 George Floyd, an African American,

was killed when an arresting officer pressed his knee onto the prone man’s

neck for over nine minutes, despite Floyd’s repeated pleas, “I cannot

breathe.” Three other officers stood by without intervening. All this was

recorded on video, which sparked worldwide protest demonstrations and led

to public demands, including U.S. congressional bills, for police reform.

In arbitration proceedings body camera recordings are compelling

evidence of an officer’s use of force. Actions taken or words spoken in the

heat of the moment, when seen through the cold hindsight of the video record,

may appear excessive. Nonetheless, bodycams have also had the salutary

effect of clearing many officers of charges of wrongdoing.

The wearing of bodycams can be seen as a condition of employment

and in some jurisdictions, it has been deemed a mandatory subject of

bargaining.

In other jurisdictions body cameras have been held a core

element of the law enforcement enterprise, and management need negotiate

only the impact of their use. For example, the Florida Public Employees

Relations Commission ruled that under Florida law, given the many

substantial advantages of using body cameras, their use is a management

right.

Where body cameras have been adopted, policies have varied as to

whether they must always be on, or may be turned on and off as determined

by the officer. Always-on cameras greatly intrude into the officer’s privacy

Id. at 237.

Id. at 240.

The following is an excerpt from PERC Final Order 17U-270, Case No. CA-2017-012,

issued October 18, 2017, confirming the recommended decision of a PERC Hearing Officer:

Florida Statute [___] requires public employers and employee organizations

to bargain over ‘wages, hours, and terms and conditions of employment of

public employees within the bargaining unit.’ Conversely, a public employer

can ‘determine unilaterally the purpose of each of its constituent agencies, set

standards of services to be offered to the public, and exercise control and

discretion over its organization and operations,’ also referred to as

management rights. When a decision involves a management right, only the

impacts of the decision, not the decision itself, are mandatorily negotiable….

The following is the relevant portion of the Hearing Officer’s decision:

As noted in my factual findings, the implementation and utilization of BWCs

[body-worn cameras] increase transparency, accountability, helps to identify

training opportunities, and provide more procedural justice. Using BWCs will

help with public sentiment and lack of trust in law enforcement. BWCs will

increase accountability of officers, but also with the members of the public

who officers interact with because people will behave more professionally

when they know they are being recorded. Additionally, the BWCs will

enhance the JSO’s ability to identify criminal behavior and collect evidence. I

conclude that a public employer’s initial decision on whether to implement

BWCs is a management right under Section 447.209, Florida Statutes.

Therefore, the decision itself is not a mandatory subject of bargaining.

Hearing Officer’s Recommended Order, Case No. CA-2017-012, July 28, 2017.

216

and can also capture the identity of persons for whom such identification is

prohibited, like juvenile sexual assault victims and hospital patients. On the

other hand, when an officer has the responsibility to turn the camera on and

has not done so at the time of alleged misconduct, questions arise as to

whether the failure was justified. Did events happen too quickly and

spontaneously to begin recording? Was the officer negligent or was the

omission intentional?

Even when officers are not equipped with body cameras, the

knowledge that citizens may be recording their actions has chastened both

the officers who are engaging with the public and the officers who may be

witnessing the engagement. The Floyd case, mentioned earlier, was the most

publicized of several occurrences where officers were charged with criminal

offenses.

When an officer is shown a video before making a statement, that

viewing can jog one’s memory of the details of the incident. This is

especially useful in deadly force cases, where the emotional impact of the

event may induce “critical incident stress” fogging the officer’s memory.

Also, an officer’s recollection seldom perfectly matches a video. Viewing

the video first avoids innocently inconsistent statements – statements that

could result in impeachment and an officer being designated an unreliable

“Brady officer.” (The trustworthiness of a Brady officer’s testimony in a

criminal case will be clouded by the prosecution’s mandatory disclosure of

the officer’s “Brady” status, that is, a sustained record for lying in an official

capacity.

)

A majority of law enforcement agencies allow officers to view

videos before making their statements. The Police Education Research Forum

(a city police department think tank) endorses that approach. In use-of-force

cases, police unions are seeking 48- or 72-hour intervals between the officer’s

viewing of the video (with the right of union consultation during that interval)

and the officer’s making a required statement.

The ACLU does not favor

the pre-statement viewing of videos.

As of 2018 six states had statutes on

the subject: five allowed the pre-statement viewing of videos; the sixth

forbade it.

Relevant Arbitration Decisions

• A police officer was charged with physical abuse of a detainee.

Officers on the scene were not wearing body cameras but testified

that when interviewed within an hour of the incident, they had felt

compelled to fully and accurately report what they had witnessed,

not only because it was their professional duty but also because the

kne

w that citizens at the scene might have taken videos on their

smartphones. In fact, no citizen videos were proffered.

“Critical incident stress” describes the cognitive, physical, emotional, behavioral, and

spiritual reactions of people who experience psychologically disturbing events in the course of

their jobs.

Brady v. Maryland, 373 U.S. 83 (1963).

Will Aitchison & Dan Swerdlow, supra note 12, at 246.

Id. at 243.

Id. at 244.

Unreported case by an NAA member.

217

• A bodycam recording showed that it was not unreasonable for an

officer to use an unauthorized hold – a carotid restraint – in order t

ubdue a deranged and agitated individual.

• A

recording of an imminent threat (clenched fists, shifting, droppin

leg, staring) was found to justify a grievant’s use of a taser on the

suspect.

• A

n officer's accidental discharge of his weapon, which sent a round

into the ground, was recorded on his bodycam. After viewing the

recording, the arbitrator found the officer had maintained his

weapon at a safe angle and sustained his grievance.

• A

San Francisco Bay Area Rapid Transit Police Officer used his

bodycam to clandestinely record a private meeting with his superior.

Such a recording would have violated department rules. The

arbitrator found that the number of manual steps required t

accomplish the recording rendered the grievant’s explanation – that

he recording had been unintentional and accidental – implausible.

The arbitrator denied the grievance of a two-week suspension.

• A

n officer failed to activate his bodycam, asserting that he believed

the activities at the scene were noncriminal. Based upon the totality

of the evidence, the arbitrator found the officer failed to prove tha

efense and ruled the nonactivation was just cause for discipline.

he Right of Public Employees to Speak

Their Minds Using Social Media

Under federal case law, if the content of a public employee’s speech

is a subject of public concern, and if on balance the employee’s right to speak

outweighs any adverse effects of that speech on the efficient functioning of

the employer’s business, the speech is protected. Three arbitration decisions

are presented here. The first two find the employee’s speech was protected

and the third rules that it was not.

During an election campaign for county sheriff, the grievant, who

was a deputy sheriff, posted to Facebook his claim that the county had not

conducted medical training for six years. That statement was not true and

resulted in the grievant’s being issued a written reprimand. He grieved and,

in a 2016 decision, Arbitrator Stephen F. Befort ruled in relevant part as

follows:

The Supreme Court in Connick v. Myers

established a two-part test for determining when a public

employee’s speech is constitutionally protected. Connick v.

Myers, 461 U.S. 138 [1 IER Cases 178 ] (1983). First, the

speech must pertain to a matter of public concern. Second,

the employee’s right to comment on a matter of public

concern must be balanced against the public employer’s

City of [__], Texas, 2019 LA Supp. 4663703 (E. DeWayne Wicks 2019).

[Employer], 2019 LA Supp. 4664759 (Kay A. Kingsley 2019).

[Employer], 2017 LA Supp. 200978 (E. DeWayne Wicks 2017).

San Francisco Bay Area Rapid Transit Dist., 137 LA 1066 (William E. Riker 2017).

[Employer], 2018 LA Supp. 4651572 (Christopher H. Shulman 2018).

218

interest in promoting the efficient functioning of the

employer’s employment responsibilities…

The Supreme Court has held that an employee

who is speaking in furtherance of official duties is not

speaking as a citizen and that such speech is not protected.

Garcetti v. Cellabos, 547 U.S. 410 [24 IER Cases 737 ]

(2006). [P]ublic employee speech is not protected if it is

made with “knowing or reckless falsity.” Pickering v. Bd.

of Educ., 391 U.S. 563 [1 IER Cases 8] (1968).

Speech is a matter of ‘public concern’ if it relates

to a political, social, or other community concern as

opposed to only the internal functioning of the public

sector workplace. Connick v. Myers, 461 U.S. at 147-48.

[Here]… the Deputies’ comments about medical training

go beyond the internal functioning of the Wright County

Sheriff’s office in two respects. First the comments were

communicated as political commentary in the context of a

contested election. Second, the statements expressed

opinions upon the community-relevant issues of law

enforcement and public safety. This is speech on matters of

public concern.

Arbitrator Befort concluded the deputy had spoken as a citizen; his

duties as a deputy sheriff had not pertained to either medical training or to

serving as a county spokesperson. Arbitrator Befort also ruled that, because

the deputy had sincerely believed that medical training had not been

furnished, his Facebook posting was not a “knowing and reckless falsity.”

Applying the Connick v. Myers balancing test, Arbitrator Befort found little

evidence that the grievant’s comments had engendered public unhappiness or

disrupted the county’s services. He sustained the grievance.

In a second, unpublished decision by National Academy member

Robert B. Moberly,

the grievant teacher posted online (on her own time, in

her own home, and using her own computer) opinions about standardized

testing, charter schools, teacher performance pay, and expanded learning

times. The grievant’s readers included the parents of students. The School

District responded by transferring the grievant and issuing her a directive to

avoid comments that “may give [the] perception of a negative impression of

the district and/or the profession of education.” The arbitrator cited the

Supreme Court in Lane v. Franks:

[T]he First Amendment protection of a public

employee's speech depends on a careful balance ‘between

the interests of the [employee], as a citizen, in commenting

upon matters of public concern and the interest of the State,

as an employer, in promoting the efficiency of the public

services it performs through its employees….’ [P]ublic

Wright County [Minn.], 136 LA 1449 (Stephen F. Befort 2016).

Orange County School Bd. (Robert B. Moberly 2016.)

134 S. Ct. 2369 (U.S. 2014). Lane v. Franks in turn cited Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968).

219

employers may not condition employment on the

relinquishment of constitutional rights.

Applying the two-step approach described above in the Befort

decision, the arbitrator first determined that the teacher had spoken as a

citizen on a matter of public concern – a prerequisite for First Amendment

protection – as opposed to having spoken about matters within the scope of

her official duties.

And, second, the arbitrator determined that the School

Board had not proven an adequate justification for treating the teacher

differently from any other member of the public, that is, there was no

evidence that her posts disparaged the Board, her supervisors, coworkers,

parents or students, or that they negatively impacted her work. The decision

stated:

[T]he Arbitrator has carefully weighed Grievant’s

interest as a citizen in speaking on matters of public

concern against the District’s interests in maintaining

efficiency. The Arbitrator finds that the District’s

efficiency was affected very little or not at all by Grievant’s

speech, and that Grievant’s interest in being able to speak

as a citizen about public concerns such as mandatory

testing and other education issues is very strong.

Accordingly, Grievant’s strong interest in being able to

speak as a citizen on matters of public concern prevails

over the District’s little or no harm to its efficiency.

Compare those decisions to the 2018 decision by Arbitrator Kenneth

P. J. Latsch in Prosser School District,

in which, on a national day of protest

against federal immigration policy, many students remained home. The

grievant, an assistant school librarian, upon returning home that evening,

posted the following to her Facebook page:

I had an absolutely great day today. Lots of grade

school kids stayed home today for the immigrants protest.

I loved it. Sure alleviated the overcrowding at school. No

out of control kids, like it should be going to school. Like

school should be. I hope they can do it again soon.

The School District transferred the grievant to an office assistant

position in another school, which transfer was deemed a disciplinary action.

The Union asserted that the grievant’s posting was within her First

Amendment rights. Arbitrator Latsch found, "The comments caused

disruption within the workplace and further caused the Employer to deal with

a great deal of community outrage." He denied the grievance.

In another 2018 First Amendment decision, the grievant, a police

officer, participated in a neo-Nazi, white supremacist rally while off duty.

During that rally, an individual drove his vehicle into a crowd of people,

killing one and injuring nineteen. The grievant posted the following to a

Contrast, e.g., case workers complaining about the size of their caseloads.

138 LA 1289 (Kenneth J. Latsch 2018).

220

friend's Facebook page: "Hahahaha love this, maybe people shouldn't block

roadways." When objections to that comment were posted, the grievant

responded with this:

Actually…I've been hit by a shitbag with warrants

but who cares right you ignorant brat live in fantasy land

with the rest of America while I deal with the real danger.

His posting attracted news media attention, after which the police department

received emails, phone calls, and letters from irate members of the public.

The department's 911 service was "inundated" with angry callers, and fellow

officers were exposed to public anger. Arbitrator Loretta T. Attardo denied

the grievance of his discharge, observing that the grievant engaged in

"substantial misconduct that adversely affect[ed] the public interest by

impairing the efficiency of the public service" and that the posts were not

First Amendment protected speech because, even assuming that they had

addressed a "matter of public concern," the harm they inflicted upon the

Department outweighed their negligible informational value.

Social Media Evidence in Other Discipline Cases

Social media grievance disputes most often pertain to discipline for

off-duty misconduct and require, as an element of just cause, a material

adverse impact on the employer’s business. That impact, or nexus, may be

(1) the fostering of an unfavorable public perception of the employer or its

product, (2) impairment of customer relations, (3) impairment of the

employee’s working relationship with his or her coworkers, or (4) the

employee’s disqualification to remain employed.

The features of social media that have made it an overnight success

– its immediacy, accessibility, ease of use, and ubiquity – can amplify the

damage done to the employer’s business. A moment of abandon or a

thoughtless word, as well as intentional misconduct – things that might once

have gone unnoticed – can be captured, stored, retransmitted, and amplified

by the news media.

The following are examples of online postings that had

significant disciplinary repercussions. In some instances, the act of posting

was itself the reason for discipline.

Cases in Which Social Media Postings Contradict the Validity of Claimed

Sick Leave

The grievant, a car servicer for the Chicago Transit Authority

[CTA], held a license to referee boxing matches. A CTA manager saw a

Facebook posting of the grievant refereeing a bout on a day for which the

grievant had claimed sick leave. Further investigation revealed the grievant

had refereed boxing matches or had traveled to matches on additional days

for which he had claimed sick leave. The CTA terminated his employment.

The Union grieved arguing, “Traveling to fights in Mexico and Argentina

[Employer], 2018 LA Supp. 4654797 (Loretta T. Attardo 2018).

Even employees’ voluntary, off-duty postings of personal information or thoughts – too

eagerly shared via blogs, web pages, Facebook, tweeting, etc. – can become grounds for

discipline. As of 2020 there is no prevailing “reasonable suspicion” standard for employers to

monitor employees’ online presences.

221

was not inconsistent with [the Grievant’s] documented need for relief from

workplace anxiety and sleep problems.” The Union further asserted the

grievant was not aware of the expectation that he seek permission to engage

in an activity that he clearly regarded as a hobby and which did not provide

him with any real income beyond enabling him to occasionally travel for the

purpose of refereeing. Arbitrator Aaron S. Wolff found the Union, which bore

the burden of proving the grievant had been sick or disabled on the dates

claimed, had produced “no probative evidence” to support its case.

Similarly, in Zimmer Surgical,

the grievant furnished the

Company with a “disability certificate” stating he was “totally incapacitated”

by back pain. During the very shift hours that the grievant was off work for

that disability, a photo posted to Facebook showed him to be in no apparent

discomfort while hosting a dinner party at a local winery. The Union argued

there was no evidence the grievant had behaved contrary to the limitations

imposed by his treating physician. Arbitrator Lynette A. Ross found the

grievant had misled the Company about his condition, and denied the

grievance over his termination.

The grievant, a Utilities Department employee for Georgia-Pacific

Consumer Products, LLC, won a fishing tournament on a day when he had

called in sick. The tournament organizers posted the awarding of his prize

on Facebook. When confronted, the grievant admitted that he had called in

sick in order to participate in the tournament. He was fired for dishonesty.

The contractual provision under which the Grievant was fired specified that

dishonesty on Company premises was a dischargeable offense. Arbitrator

Samuel J. Nicholas, Jr. found that, “Irrefutably, the Grievant was not on

Company premises when he fabricated the reason for his desired absence….”

Arbitrator Nicholas reinstated the grievant, but without back pay.

Postings from a grievant’s smartphone to his Facebook page showed

him to be actively engaged at the racetrack on the day he was claiming

absence due to illness. Arbitrator Bethel observed:

Grievant's explanation of how his wife took his

cell phone to the track on March 10, and then posted entries

on his Facebook page was not credible. [His wife] had her

own cell phone and her own Facebook page, so it makes

little sense...."

Cases in Which Social Media Postings Reveal Off-duty Conduct That Is

Inconsistent with a Standard of Conduct Associated with the Position

In L’Anse Creuse Public Schools,

a teacher with an excellent

performance record attended a private party during her summer break. At the

party, she posed with a mannequin in ways that suggested she was performing

sexual acts, including oral sex. Without the teacher’s knowledge or consent,

photos were taken of her, then immediately posted online, and then reposted

Chicago Transit Authority, 135 LA 1579 (Aaron S. Wolff 2015).

Zimmer Surgical, Inc., 137 LA 1734 (Lynette A. Ross 2017).

Georgia-Pacific, 139 LA 1062 (Samuel J. Nicholas Jr. 2019).

U.S. Steel Tubular Prods., 2014 LA Supp. 167725 (Terry A. Bethel 2014).

125 LA 527 (William Daniel 2008).

222

(they “went viral”) throughout the school district. Arbitrator William Daniel

found the District lacked just cause for termination:

[H]ere the grievant was involved in an

acknowledged adult activity of a salacious nature, however

it did not directly involve either the school or her capacity

to teach. For this reason, the arbitrator must find that the

employer would not have had just cause for terminating her

employment or otherwise disciplining her.

In Warren City Board of Education,

a male public school teacher

was discharged when his estranged wife posted photos of him holding his

member in a suggestive manner. The images were viewed by members of

the local community and the story was further advanced by the news media.

Arbitrator Thomas R. Skulina denied the grievance over the teacher’s

termination, observing that grievant’s former wife had warned him she was

going to post the photos and he had not endeavored to stop her.

Cases in Which Social Media Postings Revealed On-the-job Performance

Deficiencies

A school custodian’s claim that he had not left work early and that

the school's timekeeping system had failed to record that he had "punched

out" at his regular time was belied by a Facebook post that placed him in

another state at the time.

A citizen videotaped and posted to Facebook a cemetery

groundskeeper driving his riding mower fast, making “doughnuts” in the turf,

and colliding with and damaging a tombstone. The Union’s arguments

included that the citizen had posted the information on Facebook in a biased

manner; that is, in order to bring attention to himself. Arbitrator Marsha

Saylor found the video to be definitive evidence that the grievant had been

grossly negligent and denied the grievance over his suspension.

Cases in Which the Content of an Employee’s Postings Was Injurious to the

Employer’s Business

The grievant, a Sewer Commission employee, while at home during

his off-hours, posted a racially disparaging joke to a Facebook page that

included other racist jokes. The grievant’s own Facebook page identified him

as a Commission employee. The Commission received expressions of

concern about the grievant from the public, and the grievant was issued a

disciplinary suspension. The Union asserted inter alia that the grievant had

believed that the Facebook jokes site was private. Arbitrator Sharon

Henderson Ellis denied the grievance, noting:

Yes, the Grievant thought he was posting to a

private Facebook page, but as long as other people were

also on that site it could not be entirely private; that is, the

124 LA 532 (Thomas R. Skulina 2007).

[___] Public Schools, 2019 LA Supp. 4663696 (David J. Wenc 2019).

AFSCME Council [__], 2018 LA Supp. 465910 (Marsha Saylor 2018).

223

Grievant could not assume that others 'belonging' to that

page would not make public the jokes posted there.

A different result about “private” Facebook posting was rendered by

a National Academy member in Wireless Telephone.

In that case, the

grievant was a wireless phone store employee who recorded on his

smartphone the rantings and threats of an irate customer, and then posted the

recording via Snapchat to four recipients. The recipients included his

girlfriend and a former store employee. The grievant also sent a copy to the

assistant store manager. The grievant was discharged for violating the

Company’s prohibitions against (1) using personal media accounts for

Company business and (2) disrespecting a customer’s business relationship

and privacy. The arbitrator found there was not just cause for the termination:

In today's world, where most people think they are

the center of the universe, especially those who are young

and spend much of their time on social media, it is second

nature for them to record everything that goes on, and to

send it to others. To [the Grievant’s] credit, he did not send

the video to his entire list of "friends," only to four people,

but [the Grievant] made a mistake by sending the video to

others, and by adding the words "Dude is so done" to the

picture of the customer standing next to a police car. But,

in light of the customer's threatening behavior in the store,

[the Grievant’s] offense pales in comparison. Although

[the Grievant] should not have sent the video to anyone, the

customer engaged in threatening behavior, and it is

understandable that the nature and excitement of the

situation would affect [the Grievant’s] judgment.

After a police officer cited the grievant’s wife for driving under the

influence, the grievant, a City firefighter, posted statements about both the

officer and the Police Department to his Facebook page. Arbitrator M. Zane

Lumbley described the statements as “offensive, intimidating, hostile,

derogatory, disparaging, bullying, disrespectful and, most importantly,

threatening.” The decision followed:

In my view, it is inarguable that this course of

conduct necessarily would impede the ability of the

Grievant to work alongside the [Police Department] as

firemen are frequently and indisputably required to do in

responding to fires, medical emergencies, vehicle accidents

and other calls. Thus, I cannot fault the Employer for

choosing the penalty of termination.

Sewer Commission, 2018 LA Supp. 4642835 (Sharon Henderson Ellis 2018).

An unpublished 2019 decision by a member of the National Academy of Arbitrators.

City of Ada, Okla., 134 LA 702 (M. Zane Lumbley 2014).

224

Offensive Social Media Content Pertaining to Race and Sex

In Brown-Forman Cooperage,

a Caucasian employee was

discharged for posting an ugly racist and threatening Facebook response to

an African-American employee’s own racist and threatening post. Some of

the Caucasian’s Facebook followers were African-American coworkers. The

Union argued the case lacked nexus because the posting was made while the

grievant was off-duty and “was not related to the Company in any way.”

Arbitrator Mitchell B. Goldberg found the disruption the grievant had caused

in the workplace was evident, and “…there was a rational basis for the

decision based upon the evidence in this record.”

In another Facebook case, the grievant was discharged for

harassment after posting to her Facebook account a lengthy and sexually

explicit libel about a coworker. The grievant’s Facebook account included

200 “private” friends, five of whom worked for the Employer. Arbitrator

Roumell sustained the discharge, noting the grievant’s “friends” were free to

repost the libel in the workplace, and that her actions “…can lead to only one

conclusion: that [she] was intending to intimidate and create a hostile,

offensive work environment for [her fellow employee].” Roumell added:

[E]ven if the Facebook setting is private,

arbitrators have recognized that there is no expectation of

privacy if there are friends, as in this case who were

employees, who could make the posting available in the

workplace. See, Air Tran Airways, 131 LA 254, 261

(Goldstein, 2012). The fact is there is no basis to set aside

the discharge when [the Grievant] chose to post a

derogatory posting when she admitted she had no evidence

of the facts alleged. Thus, [the Grievant’s] actions can only

lead to one conclusion: that [she] was intending to

intimidate and create a hostile, offensive work environment

for [her fellow employee].”

Social Media Posting Impeaching the Poster’s Subsequent Testimony

The grievant was issued a final written warning for having called a

fellow employee “a fag.” In addition to the testimony of that fellow

employee, two supervisors testified they heard the targeted employee ask,

“Did you just call me a fag?” To which the grievant had replied: “What are

you going to do about it?” The grievant testified those three witnesses were

lying, adding that he would not use the word “fag” because he had a gay

relative and understood that the term was offensive. To impeach the grievant,

the Company introduced a copy of his Facebook page, on which a friend of

the grievant had posted this statement: “You are right. [The targeted

employee] is a fag.” The grievant had posted in reply, “Yup. Exactly.”

Arbitrator Melissa H. Biren denied the grievance.

138 LA 255 (Mitchell B. Goldberg 2017).

[Employer], 2016 LA Supp. 205126 (George T. Roumell 2016).

[Employer], 2018 LA Supp. 4656361 (Melissa H. Biren 2018).

225

Cases in Which Grievants Assert Someone Else Made the Improper Posting

The grievant was discharged for sending sexually explicit and

offensive texts on his Facebook page. The page included a photo of the

grievant wearing a company shirt. It was tagged to the company's Facebook

page and the posting was made from an employer-furnished computer. The

grievant testified he had not password-protected the computer and that

someone else with access to it had made the posting. After receiving hearsay

evidence in support of that claim, the arbitrator found “there [was]

insufficient proof that the messages were sent by [the Grievant” but also

found the grievant had failed to protect the Company's reputation by

eschewing password protection. The arbitrator reduced the grievant’s

termination to a suspension.

In similar cases arbitrators have ruled that a text or posting

emanating from an employee’s computer, phone, or tablet will be presumed

to be by the employee, unless proven otherwise.

In November 2014 a 12-year-old African American youth was

brandishing a toy (but realistic) pistol at members of the public. When

instructed by a police officer to raise his hands, the youth instead removed

the pistol from his waistband. He was immediately shot and killed by the

officer. In February 2016 a City EMS paramedic posted the following to his

Facebook page:

Let me be the first on record to have the balls to

say [that the youth] should have been shot and I am glad he

is dead. I wish I was in the park that day as he terrorized

innocent patrons by pointing a gun at them walking around

acting bad. I am upset I did not get the chance to kill the

little criminal fucker.

During the arbitration hearing on his termination, the grievant

asserted that he hadn't posted the text, that a friend had, and that he could not

disclose the friend's identity due to the confidentiality code of Alcoholics

Anonymous. He further argued there was no nexus between the off-duty

posting and his employment by the City because the text would be viewed

only by his 250 “friends.” Arbitrator Robert C. Stein noted that, under AA's

confidentiality policy, "Anonymity is not a cloak protecting criminal or

improper behavior...," and the grievant did not disprove that he himself had

made the offensive posting.

Quoting an earlier arbitration decision,

Arbitrator Stein also rejected the notion that the grievant’s audience would

be limited to his 250 friends:

[A]ny notion of privacy in today's social media

[is] illusory, because each recipient [has] the potential to

send or advance that same message to his/her own friends

or chosen recipients, including [the] media.

[Employer], 2018 LA Supp. 4645355 (Mark J. Glazer 2018).

[Employer], 2018 LA Supp. 4642857 (Robert C. Stein 2018).

Vista Nuevas Head Start, 12-2 Lab. Arb. Awards (CCH) P 5707 (William Daniel 2011).

226

Video Surveillance

As the cost of video surveillance equipment, including cameras and

recording storage, has plummeted, its presence in the workplace has

proliferated. The use of video surveillance is deemed lawful if done for a

legitimate business purpose (for example, to monitor employees’ safety and

performance and to guard against theft and vandalism), provided that the

surveillance does not intrude into union activity or into those workplace areas

in which privacy is reasonably expected, such as restrooms and changing

rooms. For audio recording, the privacy exclusion generally extends to

employee lounges and cafeterias. Federal law, state law, and common law

all contribute to the basic ground rules governing video surveillance. They

require that notice be given, which can be satisfied by having the surveillance

cameras readily visible to those being recorded.

Workplace video

surveillance is a mandatory subject of bargaining,

and so the contractual

permissibility of such surveillance rarely arises in the grievance context.

Rather, video and audio evidence is most often encountered in the arbitration

of disciplinary actions.

Time-stamped video recordings can provide conclusive evidence

whether an employee was on the premises during normal working hours.

They are often proffered for that purpose.

Surveillance video recordings showed that the grievant, an HVAC

Mechanic, left work early and was absent for a total of 7½ hours over an

eight-day interval. Arbitrator Michael W. Metzler observed:

The only evidence important to my Award is that

related to the Employer's claim of [the Grievant’s] leaving

the building for the day before the end of his scheduled

shift.

The Employer's [video] evidence is clear [that the

Grievant departed] early on the eight days [and that] no

reason would be acceptable unless he could show he sought

or received permission.

I agree that once Engineering Co. discovered [that

Grievant] was leaving before the end of his shift and

committing time theft, it could no longer place trust in the

employee to perform Engineering Co.'s duties and

responsibilities to its client.

Video recordings can also furnish more persuasive evidence than

eyewitness testimony that a particular act of misconduct took place. In two

unrelated and unpublished decisions, an NAA member paused the video

playback to acquire “screen captures” at crucial moments. In the first case, in

which a police officer asserted that a third party had blocked his view when a

fellow officer committed battery on a civilian, the frame-capture showed that

Under federal law and in some states, an audio recording can be made with the knowledge

and consent of only a single participant to the conversation.

Colgate-Palmolive Co., 323 N.L.R.B. 515 (1997).

Engineering Company, 2018 LA Supp 4640807 (Michael W. Metzler 2018). See also

Central Valley School Dist., 136 LA 1587 (Christopher Miles 2016); YRC Freight, 136 LA 50

(Andrea L. Dooley 2015).

227

the grievant had an unobstructed line-of-sight of the offending officer and was

looking directly at the officer.

In the second case, the screen-capture image

froze the moment that the grievant, a special-needs student teaching assistant,

inflicted physical pain on an autistic child. The inclusion of that image in the

decision made obvious what a thousand words might not have.

Sometimes the workplace under surveillance is a moving vehicle. A

recurring safety problem with bus and train operators is violation of the

prohibition against their using personal communications devices, such as cell

phones, while their vehicle is in motion or while picking up or dropping off

passengers. Federal Department of Transportation regulations prohibit the

use of cell phones while driving commercial vehicles, and some

governmental bodies prohibit not only their use but also their physical

possession.

In Greater Cleveland Reginal Transit,

the Agency’s work rule

specified the penalty of termination for a first offense. An on-board

surveillance video showed that the grievant, a train operator, had her cell

phone powered on and in her possession at the time of an accident. The

Union argued that because Agency supervisors sometimes called operators

on their cell phones, the operators’ phones were "work tools" whose

possession should not have subjected the operator to discipline. Arbitrator

Jerry A. Fullmer disagreed, noting the Agency had not required its operators

to possess cell phones. If operators elected to have them in their possession

while on the job, they had a duty to comply with the safety regulation that

required phones to be stored in a separate bag that was not on the operator’s

person.

On the other hand, when a bus driver was caught on the bus

“DriveCam” video using his cell phone to call in an important (but

nonemergency) notice to the dispatcher, Arbitrator James M. Darby reduced

his termination to a suspension based on several factors, no one of which was

identified as decisive. Those factors were that the purpose of the call had

been to expedite riders; the employer had not given its drivers notice of a new

“zero tolerance” policy; other drivers, having committed the same infraction,

had been issued suspensions after the employer had allegedly implemented

its “zero tolerance” policy; and the grievant had expressed remorse,

indicating that he was unlikely to repeat the offense.

In another case, Arbitrator Robert J. Rabin narrowly construed a

New York State prohibition against use (“holding a portable electronic device

while viewing, taking or transmitting images”). Arbitrator Rabin concluded

that the prohibition excluded looking at a cell phone for the sole purpose of

ascertaining the time:

The narrower reading of the rule would only

prohibit the use of the cell phone for those functions that

are normally associated with cell phone use, such as

texting, sending emails, talking on the phone and surfing

the web. Those activities potentially involve far more

School Dist., AAA 01 17 *** (2018).

[___] County, AAA 32 390 *** (2014).

137 LA 1146 (Jerry A. Fullmer 2017).

[Employer], 2016 LA Supp. 199428 (James M. Darby 2016).

228

concentration and distraction than simply telling the time,

and are activities that we commonly worry about when we

see somebody using his phone while driving….

We generally interpret statutes narrowly in criminal cases

because the stakes of being convicted are so drastic. But

we like to say in our business that being discharged is the

workplace equivalent of capital punishment, so we should

apply the same approach of interpreting rules narrowly.

Arbitrator Rabin reduced the employee’s termination to a one-

month suspension.

A trucking company's digital camera recorded both the driver and

the road ahead, saving the recording from eight seconds before to four

seconds after a significant g-force event. The grievant driver, distracted by

his computer tablet, drifted from the center lane of a three-lane highway to

the shoulder of the left lane; next "veered" right and drifted across the three

lanes to the right shoulder; then drifted left across three lanes to the left

shoulder; and finally drifted back to the right shoulder, where his truck and

trailer overturned. The Company's disciplinary policy called for progressive

discipline except for “gross negligence.” Arbitrator John P. DiFalco found

that the Grievant had not been grossly negligent because the Company had

not proven the dictionary definitions of gross negligence: "reckless disregard

or blatant indifference" or "extreme or reckless negligence." Arbitrator

DiFalco reduced the driver's termination to the first step of progressive

discipline: a "written verbal counseling."

Video Surveillance in Workers Compensation Cases

Surveillance video recordings made in the workplace can confirm

or disprove claims of on-the-job injury. Examples of the latter cases in which

a video showed that a claimant had not caught his foot in an entrance

turnstile;

that the claimant had not struck his knee against a large electrical

cable coil;

and that a bus driver, who claimed that his seatbelt had caused

injury to his neck and back during an evasive maneuver, was in fact not

wearing his seat belt at the time.

Video surveillance is commonly used outside of the workplace to

prove workers compensation claimants have engaged in activities

inconsistent with their medical limitations. These video recordings are

generally made when the employee is out-of-doors where there is no

expectation of privacy or need for notification that a recording is being made.

Such videos are taken clandestinely. Here are examples:

The grievant, claiming total disability, was captured on video at a

water park, repeatedly climbing 80 steps to the top of a water slide and sliding

down on a large rubber tube. Asked why in view of his medical restrictions

[Employer], 2016 LA Supp. 205025 (Robert J. Rabin 2015).

[Employer], 2019 LA Supp. 4664758 (John P. DiFalco 2019).

Kraft Heinz Foods, 139 LA 1648 (Jerry A. Fullmer 2019).

U.S. Steel Corp., 2014 LA Supp. 167729 (Terry A. Bethel, 2014).

[Employer], 2013 LA Supp.150452 (Ralph H. Colflesh 2013).

229

he had ridden the water slide, the grievant answered, “Because in physical

therapy I was told that swimming is the best thing that I can do.”

The grievant sustained a lumbar strain. While he was on temporary

total disability for pain in his back, a video recording was made of his playing

football. The video was reviewed by the employer’s physician, who reported

the following:

[The Grievant] …was able to run, twist, bend,

dive, strike other players, perform somersaults and to

various degrees roll on the ground after attempting to catch

a pass. In one sequence, [the Grievant] caught a touchdown

pass and jumped high in the air “chest bumping” a

teammate.

Arbitrator Thomas R. Skulina denied the grievance over the

employee’s termination.

In certain workers compensation cases where surveillance videos

are offered to show that the employees were misrepresenting their conditions,

the videos often record that the claimant had not done so:

A video recording of the grievant putting siding on his house was

the grounds for termination of his employment for workers compensation

fraud. Arbitrator Matthew M. Franckiewicz, viewing the video recording,

opined:

The essence of the discharge decision, as stated in

the July 19, 2018 termination letter, was that [the Grievant]

had all along been misrepresenting his medical condition

and his ability to perform more strenuous work….

To the extent that the Company claims that the

video shows that [the Grievant’s] medical restrictions

were, from the start, a sham excuse to avoid more strenuous

duties, I find the contention lacking in merit. At most the

video evidence shows that the Grievant had greater

shoulder strength and range of motion in July 2018 than he

had in January 2017. Such does not warrant the inference

that the earlier restrictions were unnecessary at the time..

An employee underwent surgery for lateral epicondylitis (tennis

elbow) and was thereafter out of work on workers compensation. Viewing

surveillance videos of the grievant’s activities at home, the Company’s Chief

of Occupational Medicine concluded they were inconsistent with the

description of his condition that the grievant had given his health care

providers. The Company discharged the grievant based upon that conclusion.

The grievant’s occupational therapist disagreed with the Chief of Medicine,

and provided his treatment notes in which the therapist had encouraged the

grievant to increase his activities at home, notwithstanding that the grievant

had told him, “someone had been monitoring activities at home and [he was]

[___] Transit, AAA 33 300 **** (Mark Lurie 2008).

Greater Cleveland Regional Transit Authority, 138 LA 1565 (Thomas R. Skulina 2018).

[Employer], 139 LA 904 (Matthew M. Franckiewicz 2019).

230

fearful of doing more at home.” The Company urged Arbitrator Ann R.

Gosline to give deference to the Chief of Medicine’s conclusions. She

declined:

“I find that deference is not warranted in this case,

where the evidence shows that [the Chief of Medicine’s]

opinion was based on incomplete information and

erroneous assumptions. Contrary to the Company's

argument, I do not view [the Grievant’s] activities as

significantly inconsistent with [his] reports of his condition

to his health care providers or inconsistent with the limits

and advice they gave to him.”

Arbitrator Gosline ordered that the Grievant be reinstated with full

restitution.

Technology-Derived Evidence in Disciplinary Actions

The Fabrication of Computer Evidence

In one arbitration decision, the “date modified” attribute of a pdf file

was offered to show that the grievant, a police officer, could not

simultaneously have been having sex while, at the same date and time, he

was working on a department document. The arbitrator took judicial notice

that the “date modified” value of a document can be retroactively set to any

date and time by changing the system setting of the computer and then saving

the document. The arbitrator deemed the “date modified” reading to be of no

evidentiary value. He found the fact that the grievant, who had extensive

computer experience, made the specious argument had not improved his

credibility by doing so.

Phone Records That Impeach

The grievant, a police officer, denied having known a woman he was

pursuing romantically. At a subsequent disciplinary interview, he was

presented with copies of phone records that showed that he had made

numerous telephone calls to her during the interval he was denying having

known her. The grievant attempted to correct his first response:

Q Our phone record indicates that [the woman] and

yourself spoke 11 times before and 35 times after

this traffic stop. Can you explain?

A Yes, Okay, from my first interview until now,

obviously I've had time to think about and

whatnot. I did know [her] before my traffic stop.

[Employer], 2018 LA Supp. 4635853 (Ann R. Gosline 2018). For other decisions in which

video surveillance recordings were found not to have proven workers compensation fraud,

see Graphic Packaging Int’l, 134 LA 369 (Aaron S. Wolff 2014); Mound View Health Care,

129 LA 1562 (Matthew M. Franckiewicz 2011).

Unpublished decision by a National Academy member in 2013.

231

I probably known her maybe a month before. I'm

not exactly sure.

Global Positioning System (GPS) Evidence

Employer-issued phones and vehicles equipped with Global

Positioning System (GPS) can track and record employees’ locations in real

time, including the speed of travel and intervals while not in motion. The

following are some examples of GPS in operation.

The GPS record of the grievant’s vehicle diverged from the

electronic entries of hours worked he had posted to the Company’s dispatch

system, and proved that he had engaged in personal activities when he

claimed he was working.

GPS readings that show an employee’s vehicle stopped in a remote

area for an hour or more have been offered to prove that the employee was

not working.

In one case, visual observation confirmed that he was

sleeping.

An employer parked at a building supply store for 33 minutes even

though he had no business reason for being there.

Data from the police department’s GPS-based vehicle tracker were

used to prove the grievant, a police officer, had attempted to develop a

personal relationship with a woman (a member of the public) while acting

under the guise of his official police duties. The grievant spent “an inordinate

amount of time” driving by and parked near the woman’s residence during

the hours that she normally left for work. Said the arbitrator:

While it is true that the locations were within [the

Grievant’s] assigned patrol area, when considered in the

context of his other conduct, the evidence strongly suggests

that Appellant was either waiting for [the woman] or

hoping to cross paths with her.

HIPAA

Over the past 25 years medical record-keeping has transformed from

paper to digital storage. The Health Insurance Portability and Accountability

Act (HIPAA)

set national standards to protect medical records and personal

health information. The Act set maximum fines for noncompliance (in 2020)

of about $60,000 per event. Criminal penalties can also apply. In general,

arbitrators have ruled that accessing HIPAA-protected information for no

valid medical reason is a dischargeable offense, whether or not the

information obtained is then shared. Thus, when a nurse failed to protect a

patient’s privacy by logging out of her computer, and then a second person

accessed the patient’s records for no valid business reason, the arbitrator

upheld her termination. An aggravating factor was that the Grievant had

[Employer], 2017 LA Supp. 201114 (M. Scott Milinski 2017).

Century Link, 138 LA 1861 (Jerry B. Sellman 2018).

[Employer], 2013 LA Supp. 14840 (Howard Eglit 2018); Genesis Alkali, LLC, 139 LA 878

(John P. DiFalco 2019); [Employer], 2018 LA Supp. 4651542 (Donald D. Dettman, 2018).

[Employer], 2013 LA Supp. 148401 (Howard Eglit 2018).

An unpublished opinion of a National Academy member in 2007.

Pub. L. 104-19, 110 Stat. 1936 (1996).

232

engaged in an “ongoing and intentional” violation of the hospital’s code of

conduct.

Exceptions are sometimes made when the accessing is accidental, is

done in good faith, is reported quickly, and no harm ensues. The following

cases address such extenuating circumstances.

The grievant, a medical secretary, was terminated for using her pass

code to access her husband's private medical records. Arbitrator

Charlotte Neigh reduced the discharge to a written warning, observing:

There is good reason to believe that the Grievant

was truthful when she said she could not remember

having accessed the records… The Grievant had no

improper motive for accessing the records, no

confidential information was disclosed, and no harm

resulted.

A termination of a medical coder was overturned where the

employer failed to give notice of the HIPAA prohibitions to employees and

the grievant credibly testified she had been unaware of such prohibitions.

Misuse of the Employer’s Computer System

Misuse of a computer system can include hacking the system to

obtain confidential data, visiting unauthorized websites, downloading

unauthorized programs or content (both of which risk malware and

ransomware infection), installing unapproved software, and viewing

pornography or other manifestly inappropriate content that is an inherently

improper use of a computer system. Such conduct is a potential theft of work

time, and the visibility of the content itself may create a hostile work

environment. Examples follow.

The grievant was observed using the internet and “closing down

screens” as soon as a supervisor entered his work area. In fact the grievant

was utilizing a security “hole” – one that inadvertently had been created in

the computer system – to access confidential Company documents and

information. Keystroke tracking software revealed the grievant had been

accessing the Company records for over six months. The Union argued no

Company policy prohibited such hacking. Arbitrator Hyman Cohen opined:

[Grievant’s]…unauthorized misuse of the

computer for a period of 6 to 8 months in accessing

sensitive, confidential and privileged management

documents, files, folders and information has caused an

irreparable breach in his relationship with the Company.

Since the Grievant’s motive for his activities of 6 to 8

months cannot be merely explained under the guise of

curiosity, he has failed to rebut the inference that his motive

did not arise from ill will, since he knew or should have

[Employer], 2016 LA Supp. 205082 (Philip Dunn 2016).

Group Health Plan, 115 LA 1352 (Charlotte Neigh 2001).

Clark County Dep’t of Admin. Svcs., 2005 LA Supp. 111403 (Alonzo M. Fields, Jr. 2005).

233

known as a reasonable person that his activities did not

serve any legitimate purpose of the Company. The

Grievant’s activities also seriously interfered with the

direction, control and supervision of employees which are

traditional management prerogatives.

The grievant had frequently logged onto the Company's internet. An

examination of his online history revealed he had downloaded pornography.

The grievant claimed that these results had been caused by involuntary "pop-

ups," but Arbitrator Gregory P. Szuter concluded the sites could not have

been accessed and the pornography downloaded except as a result of an

intentional search:

Grievant could not explain, and did not try to

explain, how his user ID was associated with the sites

except through his own access. The Internet fingerprint of

these downloads were all from one blog, which means it is

an interactive site. The snapshots of those downloads were

hard core pictures, giving no indication of advertising or e-

mail. The…size of the files indicate the download was

longer, perhaps three times, than normal process. This

could have only been from an intentional search from

Grievant’s user ID. The Arbitrator is convinced Grievant

made those searches. He may have immediately deleted

them when he observed the content because he found them

hard to look at, but the substantive offense is the retrieval

not the viewing of the pornography.

In a similar case the arbitrator sustained the discharge of a 25-year

employee with an unblemished work record for spending substantial time

circumventing the employer’s firewall and viewing and downloading

pornography. The arbitrator stated:

[T]he use of excessive amounts of work time for

activities unrelated to work duties is a type of misconduct

that does not require progressive discipline.

[The Grievant] ... may have subjected the [public

employer] to computer viruses and possible sexual

harassment law suits. More significantly, [the Grievant's]

misconduct constituted substantial and repeated neglect

and failure to properly perform his duties, i.e., he received

pay for a substantial amount of time during which he did

not perform his duties.

Keystroke software revealed that the grievant, a police officer, had

conducted lewd online conversations using a department computer. The

grievant asserted the conversations were private instant messages with her

Hoosier Energy Rural Elec. Coop., Inc., 116 LA 1043 (Hyman Cohen 2001).

BASF Catalysts, LLC, 129 LA 571 (Gregory P. Szuter 2011).

Unpublished decision by a member of the National Academy of Arbitrators in 2017.

234

"girlfriend," but the keystroke log revealed a larger audience. Arbitrator

Skonier declared:

While it is true that there were no written policies

regarding use of the police computers, and apparently other

officers and the then-Chief used these computers for

personal matters, the Grievant's conversations were, at

times, lewd and inappropriate on a public computer….

While restoring a locked computer screen, a supervisor inadvertently

revealed how to generate a screen menu that included a prompt to print a

report of company passwords. The grievant surreptitiously printed out that

report and used it to change his access rights to the highest level, giving

himself control of the operating system. He used that access level to

repeatedly enter and change company data, as a “joke.” When discovered,

he was discharged. The Union argued no policies or work rules gave the

grievant forewarning that he would be discharged for his actions. Arbitrator

Thomas S. Levak ruled, “What Mr. Z did was the equivalent of stealing the

keys to his employer's locked office and secretly breaking in, then altering

records and making a copy of the keys for himself.”

Arbitrator Levak cited

a well-accepted principle:

[T]here are some kinds of activities that every

employee should know will not be tolerated on the job. For

misconduct of this kind, ‘forewarning’ or ‘foreknowledge’

is given by common sense, rather than by any specific

written rule or explicit verbal direction.

Covid-19 and Video Conferencing

As this chapter is being written, the world is experiencing its first

major pandemic since the 1918 flu. Originating in Wuhan, China in

November 2019, the virus was given the official name of “Covid-19”

and

made its first significant appearance in North America in February 2020.

Fearing the epidemic would overwhelm the capacities of hospitals to furnish

treatment, state and local governments issued shelter-in-place orders in

March. Schools and non-essential businesses closed, while businesses and

government agencies that were essential to public health and safety remained

open, albeit sometimes with reduced staffs. Self-isolation continued from

February through the end of May 2020, by which date the virus had caused

over 100,000 deaths in North America.

The impact of Covid-19 on infected individuals ranged from nothing

to multi-system failure and death, with the primary determinant being age.

While statistically the virus had little effect on the young, it could be lethal

to those over 65 years of age.

[___] Township Police Dep’t., 2011 LA Supp. 149856 (John M. Skonier 2011).

Ernst Home Center, Inc., 1993 LA Supp. 112697 (Thomas S. Levak 1993).

Adolph M. Koven & Susan L. Smith, Just Cause: The Seven Tests 28 (2d ed. 1992).

The Covid-19 nomenclature was by the World Health Organization.

235

Deaths involving coronavirus disease 2019 (COVID-19), pneumonia, and influenza reported to

NCHS.

The fatality rate increased sharply with age:

Age Death Rate

80+ 14.8%

70-79 8.0%

60-69 3.6%

50-59 1.3%

40-49 0.4%

30-39 0.2%

20-29 0.2%

10-19 0.2%

0-9 0.0%

In the spring of 2020, most members of the National Academy of

Arbitrators were older than 65, and understandably were reluctant to conduct

hearings in person. Many employers’ and unions’ representatives shared the

same reluctance. On March 13, 2020, the AAA posted this notification:

Parties, arbitrators, mediators and others involved

in scheduled hearings must promptly raise with each other

and the AAA-ICDR any concerns about their participation

resulting from limitations on travel imposed or urged by

governmental and regulatory authorities. Sensitivity to

individuals who are at a higher risk of COVID-19 must be

taken into consideration when considering alternative

hearing arrangements.

The AAA went on to offer its video conferencing facilities and

assistance, and reassured arbitrators and advocates that video conferencing

Provisional death counts are based on death certificate data received and coded by the National

Center for Health Statistics as of the date of analysis and do not represent all deaths that occurred

in that period.

Source: Report of the World Health Organization-China Joint Mission on Covid-19.

236

would allow for the full and fair hearing of the cases, while saving travel time

and expenses. Ten days later, the AAA suspended the offer of its

teleconference facilities until at least April 17.

Video conferencing had been discussed by Academy members over

the prior two decades, but gained greater visibility at the NAA’s 2019 Fall

Education Conference in Savannah, Georgia, when Homer C. La Rue

presented a prescient paper on the subject in which he provided both

historical context and a practical assessment of the video conference process.

On the day that the AAA sent out its first Covid-19 notice, March 13, 2020,

NAA President-Elect Dan Nielsen asked three Academy members, Homer

La Rue, Jeanne Charles, and Joan Dolan, to organize a task force to train

Academy members in the use of video conferencing. That group assembled

a Videoconferencing Task Force that by March 18 had written a primer on

the subject, copies of which were transmitted to all Academy members.

On April 2, 2020 the Task Force, in partnership with FMCS Director

of Arbitration Arthur Pearlstein, conducted a webinar titled

“Videoconferencing for Arbitrators” that was viewed by about 425 persons.

The webinar gave an overview of how a hearing would be conducted using

the ZOOM video conferencing service. Between April 27 and May 15, the

Task Force conducted six online training sessions in the use of the Zoom

videoconferencing service.

The Task Force also consulted with the

Academy’s Committee on Professional Responsibility and Grievances

(CPRG) in the latter’s drafting of NAA Opinion No. 26, which addressed an

arbitrator’s authority to order a videoconference hearing over the objection

of one party. Members of the National Academy formed ad hoc video

conferencing practice groups, and more than 150 arbitrators self-certified on

the FMCS's roster that they were competent to host a video arbitration

hearing.

The AAA and the FMCS each published guides to the conduct of

such hearings.

A snapshot survey of subscribers to the National Academy’s mailing

list that was conducted between May 22 and 24, 2020, showed that NAA

members had started to schedule and conduct video conferenced hearings.

Homer C. La Rue, now NAA President-Elect, was then serving as an Academy vice

president and as a member of its Board of Governors. He is Professor of Law at the Howard

University School of Law, where he teaches and directs the Howard Law ADR Program.

The Task Force was comprised of Jeanne Charles, its Chair; Co-Chairs Joan Dolan and

Homer La Rue; and members Christopher Albertyn, Christopher Cameron, Brian Clauss, Doug

Collins, Tia Denenberg, Keith Greenberg, Lisa Kohn, James Lundberg, Luella Nelson,

Kenneth Perea, Sylvia Skratek, Andrew Strongin, Kathryn VanDagens, Jeanne Vonhof, and

Betty Widgeon.

The training session subjects were breakout rooms, settings, handling exhibits and

documents, witness issues, prehearing conversations introducing the parties to video hearings,

and how to prepare for the hearing, and what to do if things go wrong.

The number included non-NAA members.

May 22, 2020 survey of Academy members scheduling of video-conferenced hearings.

Sixty-nine United States NAA members and two Canadian members responded.

The Canadian members’ video hearing numbers were appreciably higher than those of the U.S.

members. As of 2020 video conferencing has been in regular use in Canada, and many of the

cases were expedited. Of the 69 U.S. members, six reported that they had not offered video

conferencing; 63 reported that they had. The chart below shows the number of video-

conferenced hearings held and to be held by those 63 respondents from April 1, 2020.

237

Whether video conferencing will gain acceptance, wane, or be abandoned

once the Covus-19 threat passes remains to be seen.

Summation

National Academy member Luella E. Nelson has mused that George

Orwell was an optimist.

As of this year – 2022 – the physical locations,

words, and actions of employees are being recorded by myriad technologies:

keystroke tracking, door badge swipes, biometric readers, video cameras

(stationary, body-worn, and in the hands of third persons), credit card

purchases, and GPS trackers. Seemingly private text and images transmitted

over the internet are in fact not secure, but are being captured, saved, and

rebroadcast. It is an understatement to say that technology has narrowed the

realm of employee privacy.

In the future, as the rate of technological innovation inevitably

accelerates, notions of privacy that prevailed in 2022 will be remembered as

quaint. New managerial tools, such as facial recognition, desktop DNA

sequencing, and lie detection through biometric reading augmented by

artificial intelligence, will present arbitrators with unfamiliar genera of

evidence to weigh for admissibility, relevance, and reliability. Then, as now,

arbitrators will be expected to exercise sound reasoning and judgment in

construing and applying the terms of collective bargaining agreements to the

realities of a brave new world.

Video-conferenced hearings held after April 1, 2020 or scheduled as of

May 24, 2020

Arbitration

Mediation

No. of

respondents

No. of

hearings

No. of

respondents

No. of

hearings

George Orwell, Nineteen Eighty-Four (1949). See also Aldous Huxley, Brave New World

(Heritage Press ed. 1974).

238

hapter 14

THE FUTURE OF THE ACADEMY

Barry Goldman

Human beings want to feel that they are on a power walk into the

future, when in fact we are always just tapping our canes on the pavement

in the fog.

Mark Lilla, The New York Times, March 22, 2020

Some of the omens are propitious. Trump has been defeated. The

Democrats have control of both houses of Congress. The Democratic Party

platform says the right things about necessary changes in labor law and

policy. Biden’s new Labor Secretary shows real promise. Perhaps we have

reached an inflection point, a point at which “a change in the direction of

curvature occurs.”

On the other hand, the long-term direction of curvature does not look

good. Union density is down. Case filings are down. The Supreme Court is

anti-union.

State legislatures are worse. The political system has been

captured by the oligarchy. Income and wealth inequality are more grotesque

than at any time since the Gilded Age. The workplace has been fissured by

subcontracting and franchising, by the platform-based gig economy, and by

systematic misclassification of employees, all designed to keep wages low

and prevent workers from organizing. Gerrymandering, voter suppression,

dark money, and Citizens United

conspire to preserve the status quo. And

the Supreme Court has moved so far to the right that Chief Justice Roberts is

the swing vote.

Since work on this book began, more than 700,000 Americans have

died from Covid-19. But at least, as of this writing, we are dying at a slower

rate. Vaccines exist, but we have no idea how many more will die before they

can be administered. We don’t know how effective vaccines will be against

mutations of Covid-19. And, as of this writing, for reasons too depressing to

contemplate, we don’t know if we can count on enough Americans agreeing

to get vaccinated.

There are 10 million fewer jobs today in the United States than there

were before the pandemic began. Hunger is up. Domestic violence is up.

Suicide and drug overdose deaths are up. We don’t know the extent of the

economic damage the pandemic will do. Will we have the V-shaped recovery

some are predicting, or the persistence of unemployment levels not seen since

See, e.g., Janus v. AFSCME Council 31, 138 S.Ct. 2448 (U.S. 2018). Overruling long-

established precedent, the Court held (5-4) agency-shop agreements in the public sector violate

the First Amendment by requiring nonmembers to subsidize speech by a union. Justice Kagan

dissented, joined by Justices Ginsburg, Breyer, and Sotomayor.

Citizens United v. Federal Elections Com’n, 558 U.S. 310 (2010). Overruling multiple

precedents, the Court held (5-4) the First Amendment forbids limiting political speech because

the speaker is a corporation. Justice Stevens dissented, joined by Justices Ginsburg, Breyer, and

Sotomayor.

239

the Great Depression? And if there is a lasting depression, will it lead to

increased labor militancy and pressure for a new New Deal, or will it expand

the reserve army of the unemployed, crush what is left of the labor movement,

and put downward pressure on wages and conditions of employment?

Even if we knew the answers to these questions, we would have no

clear path to a confident prediction about the future of the labor market. Even

with a Democratic President and a Democratic Congress, given the health

crisis and the economic crisis, there is little reason to believe labor law reform

will be near the top of the new Administration’s agenda. And even if it were

possible to know with precision what future labor law will look like, we

would be a long way from being able to predict the future of the Academy.

The pandemic and the resulting economic damage are the two

central factors in any analysis of the future of the labor market. And a year

before this writing neither one existed.

In the summer of 2020, we experienced a level of “civil unrest” not

seen since 1968. The police murders of George Floyd, Breonna Taylor, and

countless others drove an unprecedented number of Americans into the

streets. Some cops took a knee and marched with the protesters. Others fired

tear gas and rubber bullets. There was arson and looting. There was the

brutality of a militarized police. There were conspiracy theories of every

description. The following winter we saw a mob of fanatics break into the

Capitol building, smear excrement on the walls, and beat a police officer to

death. Some police officers behaved heroically. Others posed for selfies with

the rioters.

Under the circumstances, it’s understandable that the new

Administration may have priorities other than labor law reform.

Still, people whose job it is to think about these things have been

thinking about them. Some scholars see the promise of a future in which the

relationship between labor and capital moves closer to the European model

of sectoral bargaining. In a sectoral bargaining system, all the workers in an

industrial or employment sector enjoy the same broad array of rights and

protections regardless of who employs them. There is no competition

between employers over wages and conditions and no race to the bottom. It

is an attractive vision.

There is renewed interest in some quarters in the elusive “just cause”

discharge statute. There is the tantalizing idea of minority unions. Workers at

Google have begun organizing a union, affiliated with CWA, that will be

open to all Google employees of all crafts, even contractors. The possibilities

are heady.

If attractive visions and heady possibilities were horses, scholars

would ride.

Some activists see promise in the recent spate of strikes among

nurses, teachers, and others and in the notion of “bargaining for the common

good.” It’s hard to be opposed to the common good, but the relationship

between those strikes and the future of the Academy is, shall we say, rather

an attenuated one.

Additionally, for our purposes here, it’s important to point out that

a move to sectoral bargaining or a universal just cause rule would likely lead

to replacing private labor arbitrators like us with salaried labor court judges.

That might be a vast improvement for the American working class, but it

240

would be bad news for those of us who like what we do and the way we do

it. Changes in the state of labor law in the United States, even if they mean

improvements in the rights and protections of working people, would not

translate directly into improvements in the lives of labor arbitrators. No one

who has achieved sufficient general acceptability to have been admitted into

the Academy looks longingly at the professional life of a government hearing

officer.

Inside the Academy, other changes are taking place. The

requirements for admission have been relaxed but membership applications

are still down. Total membership is down. The number of meetings has been

reduced. There are plans to reduce the size of the Board of Governors. We

are shrinking.

Would anyone counseling a young person today recommend labor

arbitration as a career?

In theory at least, there is a core set of jobs that can’t be off-shored

and can’t be automated – jobs that require the physical presence of a human

being. That core is getting smaller as artificial intelligence and robotics get

better, but let’s take that as a starting point. Some of the people in those jobs

either have a history of collective bargaining or can be persuaded to organize.

If they have or can get collective bargaining agreements, those agreements

are likely to contain grievance procedures that conclude with arbitration. If

all that is true, those people will need arbitrators. If there are arbitrators, they

will have an interest in associating with one another. And there will continue

to be a need for the kind of education, ethics guidance, codes of conduct, and

enforcement the Academy has traditionally provided to arbitrators and the

amicus guidance it has provided to courts. Consequently, the Academy, as

the premier association of labor arbitrators, is likely to survive in some form

for some indefinite period of time. Probably.

Changes in the labor market and labor law are not the only variables

in the equation. Now that we know how easy it is to conduct hearings on

Zoom wearing our bedroom slippers, how eager will we be to get back to in-

person hearings? And how eager will the parties be to subsidize our airplane

flights, hotel rooms, restaurant meals, and rental cars?

There is also the possibility of change in the Academy itself. If the

Academy is an organization of labor arbitrators, its future will follow the path

of labor arbitration, whatever that may be. If the Academy defines itself more

broadly, as an organization of workplace dispute resolution professionals,

say, then its possible future paths will broaden correspondingly. This

discussion has already commenced, and there are, not surprisingly, strong

feelings on both sides. Some of our members see the writing on the wall and

urge that the Academy expand its scope or risk shriveling to irrelevance.

Others see expansion as dilution and urge the Academy to remain true to its

historical roots in arbitration under collective bargaining agreements. For

those members, if retaining that focus means we become a smaller

organization, so be it. The difference may be generational. Some of us can

afford to be pure. Others still need to obey what Yeats called “that raving slut

who keeps the till.”

Besides the external political situation and our own internal

organizational changes, there is another consideration that has to enter our

thinking about the future of the Academy. The Academy is not just a

241

professional organization whose members get dressed up and go to dinner

together once a year. We have other organizations for that. For many of us

the Academy plays the role the law firm does for lawyers, or the department

faculty does for academics. Academy members are some of our closest

colleagues and our dearest friends. We hear cases alone, and we write

decisions alone, but Academy membership gives us a tribe. Members of this

tribe understand parts of our lives no one else can grasp. Like why we spend

so much time staring vaguely at the ceiling. For many of us, the Academy is

less an organization we belong to than a part of who we are. As we tap our

canes in the fog, the future will have to reflect that fact as well.

242

Appendix A

Officers, Go

vernors, and Committee Chairs 1997-2022

1997-1998 1998-1999 1999-2000 2000-2001 2001-2002

President: Milton Rubin James M. Harkless Theodore J. St. Antoine John Kagel James J. Sherman

Vice Presidents: George R. Fleischli Dana Edward Eischen Tim Bornstein Tim Bornstein Jack Clarke

Gladys Gershenfeld George R. Fleischli Dana Edward Eischen Jack Clarke Claude Hubert Foisy

Gladys W. Gruenberg Gladys Gershenfeld Francis X. Quinn Francis X. Quinn Dennis R. Nolan

John Kagel Helen M. Witt Helen M. Witt Barbara Zausner Barbara Zausner

Secretary Treasurer: William H. Holley, Jr. William H. Holley, Jr. William H. Holley, Jr. William H. Holley, Jr. William H. Holley, Jr.

Board of Governors: Daniel F. Brent

Steven Briggs

Shyam Das

Gerry L. Fellman

Roberta Golick

Sharon K. Imes

Edward B. Krinsky

Richard H. McLaren

James C. Oldham

James F. Sass

Richard L. Verity

Gil Vernon

George Nicolau,

Ex-Officio

Steven Briggs

Susan R. Brown

Shyam Das

Gerry L. Fellman

Janet L. Gaunt

Elliott H. Goldstein

Roberta L. Golick

Edward B. Krinsky

Richard H. McLaren

James C. Oldham

Richard L. Verity

Donald T. Weckstein

Milton Rubin,

Ex-Officio

Steven Briggs

Susan R. Brown

Gerry L. Fellman

Janet L. Gaunt

Elliott H. Goldstein

Roberta L. Golick

Stephen L. Hayford

Susan T. Mackenzie

Joyce M. Najita

Michel G. Picher

Richard L. Verity

Donald T. Weckstein

James M. Harkless,

Ex-Officio

Sara Adler

Susan R. Brown

Janet L Gaunt

Joseph F. Gentile

Elliott H. Goldstein

Stephen L. Hayford

Ira F. Jaffe

Susan T. Mackenzie

Joyce M. Najita

James J. Odom, Jr.

Allen Ponak

Donald T. Weckstein

Theodore J. St. Antoine,

Ex-Officio

Sara Adler

Patricia Thomas Bittel

R. Douglas Collins

Joseph F. Gentile

Stephen L. Hayford

Ira F. Jaffe

Anita Christine

Knowlton

Susan T. Mackenzie

Joyce M. Najita

James J. Odom, Jr.

Allen Ponak

Calvin William Sharpe

John Kagel,

Ex-Officio

243

Named “Academy Liaison to the Task Force on ADR in Employment and the Alliance for Education in Dispute Resolution” from 2000-2001.

Chairs

Academy Liaison to the

Task Force on ADR in

Emp. Arb.:

Arnold M. Zack Arnold M. Zack Arnold M. Zack Arnold M. Zack Arnold M. Zack

Ann. Mtg. Costs and

Attendance:

Nicholas H. Zumas Nicholas H. Zumas

Annual Mtg. Host: Donald T. Weckstein

(1998)

Paul Barron (1999) Barry Winograd (2000) James J. Odom, Jr.

(2001)

Kathleen Miller (2002)

Annual Mtg. Prog.: Tim Bornstein (1998) Jack Clarke (1999) James C. Oldham (2000) Norman Brand (2001) Michael Prihar (2002)

Arb. Assistance: Edward B. Krinsky Michael H. Beck Michael H. Beck Michael H. Beck

Archivist: James R. McDonnell James R. McDonnell

Auditing: Allan S. McCausland Lois A. Rappaport Lois A. Rappaport Lois A. Rappaport Edward A. Pereles

Awards & Pubs.: Joseph M. Sharnoff

Chronicle: Andria S. Knapp Sara Adler Bonnie G. Bogue Bonnie G. Bogue Bonnie G. Bogue

Continuing Edu.: Anita Christine

Knowlton

Patricia Thomas Bittel Patricia Thomas Bittel Alan A. Symonette Alan A. Symonette

Cont. Reg. Edu.: Margery F. Gootnick Margery F. Gootnick Stanley T. Dobry Stanley T. Dobry Stanley T. Dobry

CPRG: Reginald Alleyne Reginald Alleyne Reginald Alleyne Dana Edward Eischen Dana Edward Eischen

DALC: Helen M. Witt Arthur Stark Walter J. Gershenfeld Walter J. Gershenfeld Walter J. Gershenfeld

Fall Meeting Host: James J. Odom, Jr.

(1997)

Mark Berger (1998) Claude Hubert Foisy

(1999)

David A. Petersen (2000) Frances Bairstow (2001)

Mark R. Sherman (2001)

FMCS Focus Group: Walter J. Gershenfeld Walter J. Gershenfeld

Future Meetings: David A. Petersen David A. Petersen David A. Petersen David A. Petersen Steven Briggs

History: James R. McDonnell James R. McDonnell James R. McDonnell

HLM: Howard D. Brown Howard S. Block William P. Murphy William P. Murphy William P. Murphy

Int. Studies: Benjamin Aaron Benjamin Aaron Alvin L. Goldman Alvin L. Goldman Alvin L Goldman

Issues in Emp.-Related

Disp. Res.:

Michel G. Picher Michel G. Picher Michel G. Picher

244

†

Named “Technology and the New NAA” from 1997-1998.

Law & Leg.: Elliot H. Goldstein Robert T. Simmelkjaer Robert T. Simmelkjaer Robert T. Simmelkjaer Mitchell B. Goldberg

Legal Affairs: Barnett M. Goodstein Barnett M. Goodstein Barnett M. Goodsten M. David Vaughn M. David Vaughn

Legal Rep.: Barry Winograd Barry Winograd Sara Adler Sara Adler Margery F. Gootnick

Membership: Barbara Zausner Barbara Zausner Barbara Zausner Gil Vernon Gil Vernon

NMO: Herbert L. Marx, Jr. Herbert L. Marx, Jr. Robert O. Harris Robert O. Harris Margaret R. Brogan

NAA Future: George R. Fleischli George R. Fleischli George R. Fleischli

Nominating: Nicholas H. Zumas Gladys W. Gruenberg Mario Chiesa Margery F Gootnick Jack Clarke

Parliamentarian: Edwin R. Temple Edwin R. Temple Edwin R. Temple Herbert L. Marx, Jr. Herbert L. Marx, Jr.

PEDS: Martin Ellenberg Martin Ellenberg Carlton J. Snow Carlton J. Snow Carlton J. Snow

Pres. Advisory Grp. for

Common Law of the

Workplace Project:

Richard Mittenthal

Proceedings

Editor(s):

Steven Briggs (1998)

Jay E. Grenig (1998)

Steven Briggs (1999)

Jay E. Grenig (1999)

Steven Briggs (2000)

Jay E. Grenig (2000)

Steven Briggs (2001)

Jay E. Grenig (2001)

Charles J. Coleman

(2002)

Regional Activities: Margery F. Gootnick Margery F. Gootnick Stanley T. Dobry Stanley T. Dobry Stanley T. Dobry

Research: Stephen L. Hayford Stephen L. Hayford Nels E. Nelson Nels E. Nelson Nels E. Nelson

RUAA: Dennis R. Nolan Dennis R. Nolan Timothy J. Heinsz

Special Project

Common Law of

the Workplace:

Theodore J. St. Antoine

Technology:

†

Andria S. Knapp Daniel F. Brent Daniel F. Brent Daniel F. Brent Mark I. Lurie

Tribunal Appeals: Arvid Anderson John E. Dunsford John E. Dunsford John E. Dunsford Theodore J. St. Antoine

245

2002-2003 2003-2004 2004-2005 2005-2006 2006-2007

President: Richard I. Bloch Walter J. Gershenfeld George R. Fleischli Margery F. Gootnick Dennis R. Nolan

Vice Presidents: Claude Hubert Foisy Janet L. Gaunt Roberta L. Golick Sara Adler Sara Adler

Janet L. Gaunt Roberta L. Golick Herbert L. Marx, Jr. Herbert L. Marx, Jr. Gil Vernon

Timothy J. Heinsz Timothy J. Heinsz James C. Oldham James C. Oldham William H. Holley, Jr.

Dennis R Nolan Carlton J. Snow Carlton J. Snow

‡

Gil Vernon Anita Christine

Knowlton

Secretary Treasurer: David A. Petersen David A. Petersen David A. Petersen David A. Petersen David A. Petersen

Board of Governors: Sara Adler

Patricia Thomas Bittel

Bonnie G. Bogue

Margaret R. Brogan

R. Douglas Collins

Joseph F. Gentile

Robert O. Harris

Ira F. Jaffe

Anita Christine

Knowlton

James J. Odom, Jr.

Allen Ponak

Calvin William Sharpe

James J. Sherman,

Ex-Officio

Patricia Thomas Bittel

Bonnie G. Bogue

Margaret R. Brogan

R. Douglas Collins

Robert O. Harris

Anita Christine

Knowlton

Kathleen Miller

Michel G. Picher

Michael Prihar

Calvin William Sharpe

Alan A. Symonette

Barry Winograd

Richard I. Bloch,

Ex-Officio

Mei Lang Bickner

Bonnie G. Bogue

Margaret R. Brogan

Robert O. Harris

William H. Holley, Jr.

Kathleen Miller

Michel G. Picher

Alan A. Symonette

Jeffrey B. Tener

Gerald E. Wallin

Barry Winograd

Walter J. Gershenfeld,

Ex-Officio

Mei Liang Bickner

Linda S. Byars

Howard G. Foster

William H. Holley, Jr.

William A. Marcotte

Kathleen Miller

Michael Prihar

Janet M. Spencer

Alan A. Symonette

Jeffrey B. Tener

Gerald E. Wallin

Barry Winograd

George R. Fleischli,

Ex-Officio

Mei Liang Bickner

Linda S. Byars

Jacquelin F. Drucker

Howard G. Foster

Mark I. Lurie

Martin H. Malin

William A. Marcotte

Daniel J. Nielsen

Janet M. Spencer

Jeffrey B. Tener

M. David Vaughn

Gerald E. Wallin

Margery F. Gootnick,

Ex-Officio

Chairs

Academy Liaison to the

Task Force on

ADR in Emp. Arb.:

Arnold M. Zack Arnold M. Zack Arnold M. Zack Arnold M. Zack

Advocacy Cont.

Education:

John E. Sands Homer C. La Rue

Rosemary A. Townley

‡

Carlton J. Snow passed away November 2005.

246

Amicus Brief: Calvin William Sharpe Calvin William Sharpe Calvin Willian Sharpe Calvin William Sharpe Calvin William Sharpe

Annual Mtg. Host: Roberta L. Golick (2003) Mei Liang Bickner

(2004)

Lisa Salkovitz Kohn

(2005)

Andrew M. Strongin

(2006)

Kenneth N. Silbert

(2007)

Annual Mtg. Prog.: Gerald Wallin (2003) Timothy J. Heinsz (2004) Margaret R. Brogan

(2005)

Jacquelin F. Drucker

(2006)

Anita Christine

Knowlton (2007)

Archivist: James R. McDonnell James R. McDonnell James R. McDonnell James R. McDonnell

Auditing: Edward A. Pereles Edward A. Pereles Gerald E. Wallin Gerald E. Wallin Gerald E. Wallin

Chronicle: Howard G. Foster Howard G. Foster Howard G. Foster Donald S. McPherson Donald S. McPherson

Continuing Edu.: William A. Marcotte William A. Marcotte Elizabeth C. Wesman Elizabeth C. Wesman Elizabeth C. Wesman

Cont. Reg. Edu.: Fredric R. Dichter Fredric R. Dichter

CPRG: Dana Edward Eischen Sharon K. Imes Sharon K. Imes Sharon K. Imes Shyam Das

DALC: Dennis R. Nolan Dennis R. Nolan Dennis R. Nolan Ira F. Jaffe Ira F. Jaffe

Fall Meeting Host: Allen Ponak (2002)

Mark Thompson (2002)

John F. Sass (2003) I.B. Helburn (2004) Linda S. Byars (2005) William H. Holley, Jr.

(2006)

FMCS Focus Group: Dennis R. Nolan Dennis R. Nolan Dennis R. Nolan

Future Meetings: Steven Briggs Steven Briggs Steven Briggs James J. Odom, Jr. James J. Odom, Jr.

History: Nancy Kauffman Nancy Kauffman

HLM: Rolf Valtin Rolf Valtin Rolf Valtin Arvid Anderson Arvid Anderson

Int. Studies: Alvin L. Goldman Matthew W. Finkin Matthew W. Finkin Matthew W. Finkin Mark Thompson

Issues in Emp.-Related

Dispute Res:

Michel G. Picher Michel G. Picher

Law & Leg.: Mitchell B. Goldberg

Legal Affairs: M. David Vaughn Laura J. Cooper Laura J. Cooper Laura J. Cooper Patrick Hardin

Legal Rep.: Margery F. Gootnick Margery F. Gootnick Sara Adler Rosemary A. Townley Rosemary A. Townley

Membership: Gil Vernon Herbert L. Marx, Jr. Susan R. Brown Susan R. Brown Susan T. Mackenzie

247

NAA Liaison to

the American Law

Institute Members

Consultative Group on

the Restatement

of Emp. Law:

Jay E. Grenig Jay E. Grenig

New Directions: Jeffery B. Tener

Barry Winograd

Jeffery B. Tener

Barry Winograd

NMO: I.B. Helburn I.B. Helburn I.B. Helburn Robert Gary Bailey Robert Gary Bailey

Nominating: Shyam Das Janet Maleson Spencer Edward B. Krinsky M. David Vaughn Gil Vernon

OPC: William H. Holley, Jr. William H. Holley, Jr.

Outreach: Richard Adelman Richard Adelman

Parliamentarian: Herbert L. Marx, Jr. Herbert L. Marx, Jr. Herbert L. Marx, Jr. Herbert L. Marx, Jr. Herbert L. Marx, Jr.

PEDS: Phyllis E. Florman Jerilou H Cossack Jerilou H. Cossack Joyce M. Najita Joyce M. Najita

POLC: Daniel J. Nielsen Alvin L. Goldman

Proceedings

Editor(s):

Charles J. Coleman

(2003)

Charles J. Coleman

(2004)

Stephen F. Befort (2005)

Paul F. Gerhart (2005)

Stephen F. Befort (2006)

Paul Gerhart (2006)

Stephen F. Befort (2007)

Patrick Halter (2007)

Protocol Conf.: Hoyt N. Wheeler

Research: Paul Gerhart Hoyt N. Wheeler Hoyt N. Wheeler Richard N. Block Richard N. Block

Regional Activities: Donald P. Crane Donald P. Crane Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter

RUAA: Timothy J. Heinsz Timothy J. Heinsz Stephen L. Hayford Stephen L. Hayford

Strategic Planning: William H. Holley, Jr. Bonnie G. Bogue

Technology: Mark I. Lurie Mark I. Lurie Mark I. Lurie Mark I. Lurie Joan G. Dolan

Tribunal Appeals: Theodore J. St. Antoine Theodore J. St. Antoine Theodore J. St. Antoine Benjamin Aaron Benjamin Aaron

Website: Mei L. Bickner

248

2007-2008 2008-2009 2009-2010 2010-2011 2011-2012

President: Barbara Zausner Michel G. Picher William H. Holley, Jr. Gil Vernon Roberta L. Golick

Vice Presidents: William H. Holley, Jr. Bonnie G. Bogue Bonnie G. Bogue Margaret R. Brogan Margaret R. Brogan

Anita Christine

Knowlton

Edward B. Krinsky Allen Ponak Shyam Das Shyam Das

Edward B. Krinsky Calvin William Sharpe Jeffrey B. Tener Allen Ponak Ira F. Jaffe

Calvin William Sharpe Jeffrey B. Tener Barry Winograd Barry Winograd John F. Sass

Secretary Treasurer: David A. Petersen David A. Petersen David A. Petersen David A. Petersen David A. Petersen

Board of Governors: Robert Gary Bailey

Linda S. Byars

Jacquelin F. Drucker

Howard G. Foster

Amedeo Greco

Mark I. Lurie

Martin H. Malin

William A. Marcotte

Daniel J. Nielsen

Janet M. Spencer

Rosemary A. Townley

M. David Vaughn

Dennis R. Nolan,

Ex-Officio

Robert Gary Bailey

Fredric F. Dichter

Jacquelin F. Drucker

Amedeo Greco

Mark I. Lurie

Martin H. Malin

Donald S. McPherson

Susan R. Meredith

Robert B. Moberly

Daniel J. Nielsen

Rosemary A. Townley

M. David Vaughn

Barbara Zausner,

Ex-Officio

Robert Gary Bailey

Fredric R. Dichter

Laura J. Cooper

Amedeo Greco

Fredric R. Horowitz

Donald S. McPherson

Susan R. Meredith

Robert B. Moberly

Elizabeth Neumeier

Rosemary A. Townley

avid Vaughn

Hoyt N. Wheeler

Michel G. Picher,

Ex-Officio

Laura J. Cooper

Walt De Treux

Fredric R. Dichter

Catherine Harris

Fredric R. Horowitz

Donald S. McPherson

Susan R. Meredith

Robert B. Moberly

Elizabeth Neumeier

Margo R. Newman

Elizabeth C. Wesman

Hoyt N. Wheeler

William H. Holley, Jr.,

Ex-Officio

Richard Adelman

Laura J. Cooper

Sharon Henderson Ellis

Catherine Harris

Fredric R. Horowitz

Howell L. Lankford

Elizabeth Neumeier

Margo R. Newman

Barry E. Simon

Susan L. Stewart

Elizabeth C. Wesman

Hoyt N. Wheeler

Gil Vernon,

Ex-Officio

Chairs

Advocacy Cont.

Education:

Homer C. La Rue

Elizabeth C. Wesman

Elizabeth C. Wesman Elizabeth C. Wesman Janice K. Frankman Elizabeth Neumeier

Amicus Brief: Terry A. Bethel Terry A. Bethel Terry A. Bethel Dennis R. Nolan Dennis R. Nolan

Annual Mtg. Host: Michel G. Picher (2008)

Pamela Cooper Picher

(2008)

Barry Simon (2009) Walt De Treux (2010) Fredric R. Horowitz

(2011)

Linda S. Byars (2012)

Became a subcommittee to the Annual Meeting Program committee

249

Annual Mtg. Prog.: Robert B. Moberly

(2008)

Martin H. Malin (2009) Bonnie G. Bogue (2010) Margaret R. Brogan

Barry Winograd (2011)

Allen Ponak (2012)

Archivist: James R. McDonnell James R. McDonnell James R. McDonnell Howard G. Foster Howard G. Foster

Auditing: William A. Marcotte Daniel J. Nielsen Robert Gary Bailey Donald S. McPherson Laura J. Cooper

Chronicle: Donald S. McPherson Walt De Treux Walt De Treux Walt De Treux Susan Grody Ruben

CLE: Bonnie G. Bogue Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter

Continuing Edu.:

Elizabeth Neumeier Elizabeth Neumeier Elizabeth Neumeier Rex Wiant, II Susan Grody Ruben

CPRG: Shyam Das Shyam Das Edward B. Krinsky Edward B. Krinsky Edward B. Krinsky

DALC: Ira F. Jaffe Kathleen Miller Kathleen Miller Kathleen Miller Joan Parker

Draft a Code of

Prof. Resp. for Emp.

Arbs:

Theodore J. St. Antoine

Fall Meeting Host: Roberta L. Golick

(2007)

Sylvia Skratek (2008) Ruben R. Armendariz

(2009)

Susan Grody Ruben

(2010)

Elizabeth Neumeier

(2011)

Future Meetings:

††

James J. Odom, Jr. James J. Odom, Jr. James J. Odom, Jr. James J. Odom, Jr. James J. Odom, Jr.

History: Nancy Kauffman Nancy Kauffman Nancy Kauffman Anna DuVal Smith Anna DuVal Smith

HLM: George Nicolau George Nicolau George Nicolau George Nicolau George Nicolau

Int. Studies: Mark Thompson Mark Thompson Robert T. Simmelkjaer Robert T. Simmelkjaer Robert T. Simmelkjaer

Issues in Emp.-

Related Dispute

Res.:

‡‡

Theodore J. St. Antoine Theodore J. St. Antoine Theodore J. St. Antoine Sharon Henderson Ellis

Martin H. Malin

Sharon Henderson Ellis

Martin H. Malin

Legal Affairs: Patrick Hardin Patrick Hardin Calvin William Sharpe Calvin William Sharpe Calvin William Sharpe

Legal Rep.: Sara Adler Sara Adler Sara Adler Sara Adler Sara Adler

Meeting Attendance: Daniel J. Nielsen Daniel J. Nielsen

Member Benefits: Amedeo Greco Amedeo Greco Amedeo Greco

Membership: Susan T. Mackenzie Margaret R. Brogan Margaret R. Brogan William A. Marcotte William A. Marcotte

Renamed Fall Education Program Committee 2012-2013

††

Renamed Future Sites 2011-2012

‡‡

Name changed to Statutory Disputes in Arbitration Committee in 2011-2012.

250

NAA Liaison to the

ALI Members

Consultative Group

on the Restatement

of Emp. Law:

Jay E. Grenig Jay E. Grenig Jay E. Grenig Jay E. Grenig Jay E. Grenig

New Directions: Jeffrey B. Tener Jeffrey B. Tener

NMO: Margery F. Gootnick Margery F. Gootnick

Anita Christine

Knowlton

Margery F.Gootnick

Anita Christine

Knowlton

Margery F.Gootnick

Jeffrey B. Tener

Nominating: James C. Oldham Roberta L. Golick Robert Gary Bailey Donald S. McPherson Barry Winograd

Outreach: Richard Adelman

Parliamentarian: Herbert L. Marx, Jr. Robert Gary Bailey Robert Gary Bailey Robert Gary Bailey Robert Gary Bailey

PEDS: Joyce M. Najita Susan L. Stewart Susan L. Stewart Susan L. Stewart Stephen F. Befort

POLC: Alvin L. Goldman Jay E. Grenig Joshua Javits Joshua Javits John E. Sands

Proceedings

Editor(s):

Patrick Halter (2008)

Paul D. Staudohar

(2008)

Paul D. Staudohar

(2009)

Mark I. Lurie (2010)

Paul D. Staudohar

(2010)

Nancy Kauffman (2011)

Mark I. Lurie (2011)

Matthew M.

Franckiewicz

Nancy Kauffman (2012)

Railroad Cases: Gil Vernon Gil Vernon

Regional Activities: Dennis E. Minni Dennis E. Minni Dennis E. Minni Walt De Treux Walt De Treux

Regional Education: Walt De Treux Walt De Treux

Research: Richard N. Block Hoyt N. Wheeler James A. Gross James A. Gross

Strategic Planning: Alan A. Symonette Alan A. Symonette

Technology: Joan G. Dolan Joan G. Dolan Kenneth Paul Swan Kenneth Paul Swan Kenneth Paul Swan

Tribunal Appeals: George R. Fleischli George R. Fleischli George R. Fleischli George R. Fleischli Theodore J. St. Antoine

Visibility: M. David Vaughn Margo R. Newman Margo R. Newman

251

2012-2013 2013-2014 2014-2015 2015-2016 2016-2017

President: Sara Adler James C. Oldham Shyam Das Allen Ponak Margaret R. Brogan

Vice Presidents: Ira F. Jaffe Donald S. McPherson Robert Gary Bailey Robert Gary Bailey Laura J. Cooper

Kathleen Miller Kathleen Miller Donald S. McPherson Robert B. Moberly Martin H. Malin

Elizabeth Neumeier Elizabeth Neumeier Robert B. Moberly Martin H. Malin James J. Odom, Jr.

John F. Sass Daniel J. Nielsen Daniel J. Nielsen Susan L. Stewart Susan L. Stewart

Secretary Treasurer: David A. Petersen David A. Petersen David A. Petersen David A. Petersen David A. Petersen

Board of Governors: Richard Adelman

Jane H. Devlin

Fredric R. Dichter

Sharon Henderson Ellis

Catherine Harris

Howell L. Lankford

Homer C. La Rue

Margo R. Newman

Barry E. Simon

Susan L. Stewart

Kenneth Paul Swan

Elizabeth C. Wesman

Roberta L. Golick,

Ex-Officio

Richard Adelman

Claude Dawson Ames

Walt De Treux

Jane H. Devlin

Fredric R. Dichter

Sharon Henderson Ellis

Howell L. Lankford

Homer C. La Rue

Susan Grody Ruben

John E. Sands

Susan L. Stewart

Kenneth Paul Swan

Sara Adler,

Ex-Officio

Claude Dawson Ames

Walt De Treux

Jane H. Devlin

Fredric R. Dichter

Paul F. Gerhart

Edward Harrick

Homer C. La Rue

William McKee

Susan Grody Ruben

John E. Sands

Sylvia Skratek

Kenneth Paul Swan

James C. Oldham,

Ex-Officio

Claude Dawson Ames

Walt De Treux

Matthew M.

Franckiewicz

Paul F. Gerhart

Edward Harrick

Paula Knopf

William McKee

Susan Grody Ruben

John E. Sands

Sylvia Skratek

Maretta Comfort Toedt

Kathryn A. VanDagens

Shyam Das,

Ex-Officio

Randi Hammer Abramsky

Matthew M. Franckiewicz

Paul F. Gerhart

Edward Harrick

Joshua Javits

Paula Knopf

William McKee

William J. Miller, Jr.

Sylvia Skratek

Maretta Comfort Toedt

Kathryn A. VanDagens

David R. Williamson

Allen Ponak,

Ex-Officio

Chairs

Advocacy Cont.

Education:

Elizabeth Neumeier Elizabeth Neumeier Louis L.C. Chang Louis L.C. Chang Louis L.C. Chang

Amicus Brief: Dennis R. Nolan Barry Winograd Barry Winograd Barry Winograd Stephen F. Befort

Annual Mtg. Host: Sylvia Skratek (2013) Steven M. Bierig (2014) Claude Dawson Ames

(2015)

Michelle Miller-Kotula

(2016)

Margo R. Newman (2017)

Annual Mtg. Prog.: Daniel J. Nielsen (2013) Kathleen Miller (2014) Laura J. Cooper (2015) Walt De Treux (2016) Elizabeth Neumeier (2017)

Arbitration Website

Steering Committee:

Kathleen Miller Elizabeth C. Wesman

252

ArbitrationInfo.com: Elizabeth C. Wesman

Archivist: Howard G. Foster Howard G. Foster Howard G. Foster

Auditing: Margo R. Newman Richard Adelman Kenneth Paul Swan Susan Grody Ruben William McKee

Chronicle: Kathryn A. VanDagens Kathryn A. VanDagens Kathryn A. VanDagens Daniel G. Zeiser Daniel G. Zeiser

CLE: Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter

Constitutional

Amendment:

Laura J. Cooper

Ira F. Jaffe

Homer C. La Rue

Elizabeth Neumeier

Gil Vernon

CPRG: Paula Knopf Paula Knopf Paula Knopf Daniel J. Nielsen Daniel J. Nielsen

DALC: Joan Parker Joan Parker Jeffrey B. Tener Joshua Javits Joshua Javits

Draft a Code of Prof.

Resp. for Emp. Arbs.:

Theodore J. St. Antoine Theodore J. St. Antoine

Emp. Arbitration: Jacquelin F. Drucker

Fall Mtg. Host: Hoyt N. Wheeler (2012) Edward Harrick (2013) William H. Holley, Jr.

(2014)

John F. Sass (2015) Gil Vernon (2016)

Fall Education Prog.: Susan Grody Ruben

(2012)

Brian Clauss (2013) Brian Clauss (2014) Jane Devlin (2015)

Paula Knopf (2015)

Jane Devlin (2016)

Paula Knopf (2016)

Future Sites: James J. Odom, Jr. James J. Odom, Jr. James J. Odom, Jr. James J. Odom, Jr. James J. Odom, Jr.

History: Anna DuVal Smith Nancy Kauffman

HLM: John Kagel John Kagel Roberta L. Golick Roberta L. Golick Roberta L. Golick

Int. Studies: Richard N. Block Richard N. Block Richard N. Block Christopher J. Albertyn Christopher J. Albertyn

Legal Affairs: Stephen F. Befort Stephen F. Befort Stephen F. Befort Jan Stiglitz Jan Stiglitz

Legal Rep.: Luella E. Nelson Luella E. Nelson Sara Adler Sara Adler Sara Adler

Membership: William A. Marcotte Susan R. Meredith Susan R. Meredith Susan R. Meredith Susan Kerr Garraty

Member Benefits: Edward A. Pereles

Media and Edu.

Resource:

Gil Vernon

253

NAA Liaison to the

ALI Members

Consultative Group

on the Restatement of

Emp. Law:

Jay E. Grenig Jay E. Grenig Jay E. Grenig

NMO: Jeffrey B. Tener Jeffrey B. Tener Richard Adelman Richard Adelman Richard Adelman

Nominating: Linda S. Byars George R. Fleischli John Kagel Paula Knopf Robert B. Moberly

Outreach: Walt De Treux

Parliamentarian: Robert Gary Bailey Robert Gary Bailey Robert Gary Bailey Robert Gary Bailey Jane H. Devlin

PEDS: Charles W. Kohler Charles W. Kohler Timothy D. W.

Williams

Timothy D. W.

Williams

Timothy D. W. Williams

POLC: John E. Sands Daniel F. Brent Daniel F. Brent Daniel F. Brent Fredric R. Dichter

Proceedings

Editor(s):

Richard N. Block

Matthew M.

Franckiewicz

Nancy Kauffman

William A. Marcotte

(2013)

Richard N. Block

Charles Feigenbaum

Rose F. Jacobs

Susan Grody Ruben

Mary Ellen Shea

Jan Stiglitz

(2014)

Katherine J. Thomson

(2015)

Mark Thompson (2016) Stephen L. Hayford (2017)

Regional Activities: Walt De Treux Margaret R. Brogan Margaret R. Brogan Kathy L. Eisenmenger Kathy L. Eisenmenger

Regional Education: Walt De Treux Margaret R. Brogan Margaret R. Brogan Philip A. LaPorte

Statutory Disputes in

Arbitration:

Sharon Henderson Ellis

Martin H. Malin

Richard D. Fincher Richard D. Fincher Richard D. Fincher

Technology: Kenneth Paul Swan James B. Dworkin James B. Dworkin James B. Dworkin

Tribunal Appeals: George R. Fleischli George R. Fleischli George R. Fleischli George R. Fleischli George R. Fleischli

Visibility: Margo R. Newman Randi E. Lowitt

254

2017-2018 2018-2019 2019-2020 2020-2021 2021-2022

President: Kathleen Miller David A. Petersen

§§

Edward B. Krinsky

Barry Winograd Daniel J. Nielsen Susan L. Stewart

Vice Presidents: Laura J. Cooper William A. Marcotte Paula Knopf Amedeo Greco Amedeo Greco

William A. Marcotte William McKee William McKee Joshua Javits Joshua Javits

James J. Odom, Jr. Alan A. Symonette. Alan A. Symonette Paula Knopf Maretta Comfort Toedt

Elizabeth C. Wesman Elizabeth C. Wesman Homer C. La Rue Homer C. La Rue Kathryn VanDagens

Secretary Treasurer: Walt De Treux Walt De Treux Walt De Treux Walt De Treux Walt De Treux

Board of Governors: Randi Hammer

Abramsky

Stephen F. Befort

Richard D. Fincher

Matthew M.

Franckiewicz

Joshua Javits

Paula Knopf

William J. Miller, Jr.

Michelle Miller-Kotula

Maretta Comfort Toedt

Kathryn A. VanDagens

Jeanne M. Vonhof

David R. Williamson

Margaret R. Brogan,

Ex-Officio

David A. Petersen,

Ex-Officio

Randi Hammer

Abramsky

Stephen F. Befort

Kathy L. Eisenmenger

Richard D. Fincher

Joshua Javits

Philip A. LaPorte

Randi E. Lowitt

William J. Miller, Jr.

Michelle Miller-Kotula

Jeanne M. Vonhof

David R. Williamson

Daniel G. Zeiser

Kathleen Miller,

Ex-Officio

Jeanne Charles

Sarah Kerr Garraty

Stephen F. Befort

Kathy L. Eisenmenger

Richard D. Fincher

Philip A. LaPorte

Randi E. Lowitt

Michelle Miller-Kotula

James C. Oakley

Andrew M. Strongin

Jeanne M. Vonhof

Daniel G. Zeiser

Edward B. Krinsky,

Ex-Officio

Christopher J. Albertyn

Ruben Armendariz

Melissa Biren

Jules Bloch

Jeanne Charles

Kathy L. Eisenmenger

Sarah Kerr Garraty

Philip A. LaPorte

Randi E. Lowitt

James C. Oakley

Andrew M. Strongin

Daniel G. Zeiser

Barry Winograd,

Ex-Officio

Christopher J. Albertyn

Ruben Armendariz

Melissa Biren

Jules Bloch

Jeanne Charles

Sarah Kerr Garraty

Keith D. Greenberg

William E. Hartsfield

James C. Oakley

David W. Stanton

Andrew M. Strongin

Sherrie Rose Talmadge

Daniel J. Nielsen,

Ex-Officio

Chairs

Advocacy Cont. Ed.: Michelle Miller-Kotula

Amicus Brief: Stephen F. Befort Stephen F. Befort Martin H. Malin Martin H. Malin Martin H. Malin

§§

David A. Petersen was named President posthumously in 2018.

255

Annual Mtg. Host: Randi Hammer

Abramsky (2018)

Ralph H. Colflesh (2019) Kathy L. Eisenmenger

(2020)

Sara Adler (2021) John Stout (2022)

Annual Mtg Prog.: Elizabeth C. Wesman

(2018)

William McKee

Maretta Comfort Toedt

(2019)

Daniel G. Zeiser (2020) Paul Roose (2021) Jasbir Parmar (2022)

ArbitrationInfo.com: Elizabeth C. Wesman William McKee

Elizabeth C. Wesman

Robert Gary Bailey

Elizabeth C. Wesman

Robert Gary Bailey

Elizabeth C. Wesman

Robert Gary Bailey

Auditing: Kathryn A. VanDagens David R. Williamson Richard D. Fincher Randi E. Lowitt James C. Oakley

Bloch Committee: Richard I. Bloch

Bloch Report Imp.: Paula Knopf Paula Knopf Paula Knopf

Canadian Labour

Relations:

Susan L. Stewart

Christopher J. Albertyn

Kenneth P. Swan

Chronicle: Daniel G. Zeiser James S. Cooper James S. Cooper James S. Cooper James S. Cooper

CLE: Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter Fredric R. Dichter

Continuing Edu.: Daniel Zeiser Daniel Zeiser

CPRG: Daniel J. Nielsen Susan L. Stewart Susan L. Stewart Jeanne M. Vonhof Jeanne M. Vonhof

DALC: Joshua Javits Joshua Javits Joshua Javits Barry E. Simon Barry E. Simon

DEIB Coord.: Timothy S. Taylor

Emp. Arbitration: Jacquelin F. Drucker Jacquelin F. Drucker Jacquelin F. Drucker Thomas F. Gibbons Thomas F. Gibbons

Fall Meeting Host: Robert B. Moberly

(2017)

I.B. Helburn (2018) Katie Durham (2019)

Fall Edu. Prog.: Barry Winograd (2017) Amedeo Greco (2018) Jeanne M. Vonhof

***

(2019)

Daniel G. Zeiser (2020)

Federal Sector: M. David Vaughn Mark Travis

Future of the

Proceedings:

Stephen F. Befort

Laura J. Cooper

Howard G. Foster

Paul F. Gerhart

Stephen L. Hayford

Robert A. Grey Robert A. Grey Robert A. Grey

***

Last Fall Education Conference was held in Savannah in 2019.

256

Future Sites: James J. Odom, Jr.

General Counsel: Theodore J. St. Antoine

History: Nancy Kauffman Nancy Kauffman Nancy Kauffman Nancy Kauffman Nancy Kauffman

HLM: James C. Oldham James C. Oldham James C. Oldham James B. Dworkin James B. Dworkin

Int. Studies: Christopher J. Albertyn Christopher J. Albertyn Christopher J. Albertyn Christopher J. Albertyn Christopher J. Albertyn

Internal Grievances: Kathleen Miller Kathleen Miller

Intra-Org. Grievance

Policy and Process:

†††

Elizabeth C. Wesman Elizabeth C. Wesman Elizabeth C. Wesman Elizabeth C. Wesman

Legal Affairs: Jan Stiglitz Jan Stiglitz

Legal Rep.: Sara Adler Sara Adler Luella E. Nelson Luella E. Nelson Luella E. Nelson

Media and Comm.

Strategy:

Andrea L. Dooley

Sylvia Skratek

Membership: Sarah Kerr Garraty Howell L. Lankford Howell L. Lankford Howell L. Lankford Howell L. Lankford

Membership

Standards:

Sarah Kerr Garraty Sarah Kerr Garraty Sarah Kerr Garraty

NMO: Jules Bloch Jules Bloch Jules Bloch Andrew M. Strongin Andrew M. Strongin

Nominating: Jeffrey B. Tener Richard Adelman Laura J. Cooper Randi Hammer

Abramsky

Shyam Das

Online Proceedings: Robert A. Grey Robert A. Grey Robert A. Grey

Outreach: Margaret R. Brogan Margaret R. Brogan Margaret R. Brogan Margaret R. Brogan Margaret R. Brogan

Parliamentarian: Jane H. Devlin William A. Marcotte William A. Marcotte William A. Marcotte William A. Marcotte

PEDS: Timothy D. W. Williams Timothy D. W. Williams Timothy D. W. Williams

POLC: Fredric R. Dichter Fredric R. Dichter Elizabeth Neumeier Elizabeth Neumeier Elizabeth Neumeier

Public Sector Init.: Kathryn A. VanDagens

Proceedings

Editor(s):

Timothy J. Brown (2018) Howard G. Foster (2019) Richard N. Block (2020) Robert A. Grey (2021)

Regional Activities: Kathy L. Eisenmenger Kathy L. Eisenmenger Richard Adelman Richard Adelman Richard Adelman

†††

Renamed Internal Grievances Committee 2019-2020.

257

Strategic Advisor: Martin H. Malin

Supplement to “Fifty

Years in the

World…”:

Barry Goldman Barry Goldman Theodore J. St. Antoine Theodore J. St. Antoine Theodore J. St. Antoine

RCI Organizing: Homer C. La Rue

Alan A. Symonette

Homer C. La Rue

Alan A. Symonette

Remote Meetings: Paula Knopf

Sp. Cmt. on a Strategic

Plan to Achieve DEIB:

Christopher J. Albertyn Christopher J. Albertyn

State and Local

Public Sector:

Thomas J. Nowel Thomas J. Nowel

State of the Prof.: Kathryn A. VanDagens Kathryn VanDagens

Technology: Keith D. Greenberg Keith D. Greenberg

Transitions Project: Edward B. Krinsky Edward B. Krinsky

Tribunal Appeals: Roberta L. Golick Roberta L. Golick Roberta L. Golick Edward B. Krinsky Edward B. Krinsky

VTF: Jeanne Charles

258

ppendix B

NAA Research and Education Foundation

Officers and Directors

Officers 1997-1998 1998-1999 1999-2000 2000-2001 2001-2002

President: Mark Thompson Shyam Das Shyam Das Michael Beck Michael Beck

Vice-President: Joyce M. Najita Susan T. Mackenzie Susan T. Mackenzie Timothy J. Heinsz Timothy J. Heinsz

Secretary-Treasurer: William H. Holley, Jr. William H. Holley, Jr. William H. Holley, Jr. William H. Holley, Jr. William H. Holley, Jr.

Directors: Michael H. Beck Michael H. Beck Sara Adler Sara Adler Sara Adler

Howard D. Brown Howard D. Brown Michael H.Beck Terry A. Bethel Terry A. Bethel

Shyam Das Phyllis E. Florman Terry A. Bethel Shyam Das Shyam Das

Phyllis E. Florman James M. Harkless Howard D. Brown Joan G. Dolan Joan G. Dolan

James M. Harkless Timothy J. Heinsz Phyllis E. Florman Joseph F. Gentile Joseph F. Gentile

Timothy J. Heinsz James E. Jones, Jr. James M. Harkless James M. Harkless James M. Harkless

James E. Jones, Jr. Allan S. McCausland Timothy J. Heinsz Sharon K. Imes Sharon K. Imes

Christine Ver Ploeg Lois A. Rappaport Sharon K. Imes Mark L. Kahn Mark L. Kahn

Edward B. Krinsky Calvin William Sharpe James E. Jones, Jr. Susan T. Mackenzie Susan T. Mackenzie

Susan T. Mackenzie Anthony V. Sinicropi Allan S. McCausland Allan S. McCausland Allan S. McCausland

Anthony V. Sinicropi Calvin William Sharpe Calvin William Sharpe Calvin William Sharpe

Calvin William Sharpe Anthony V. Sinicropi Anthony V. Sinicropi Anthony V. Sinicropi

Jack Stieber

259

Officers 2002-2003 2003-2004 2004-2005 2005-2006 2006-2007

President: Sara Adler Sara Adler Mario F. Bognanno Mario F. Bognanno Lisa Salkovitz Kohn

Vice-President: Joan G. Dolan Joseph F. Gentile Joseph F. Gentile Gladys W. Gruenberg Gladys W. Gruenberg

Secretary-Treasurer: David A. Petersen David A. Petersen David A. Petersen David A. Petersen David A. Petersen

Directors: Michael H. Beck Terry A. Bethel Sara Adler Tia Schneider Denenberg Mario F. Bognanno

Terry A. Bethel Mario F. Bognanno Terry A. Bethel Joseph F. Gentile Tia Schneider Denenberg

Steven Briggs Steven Briggs Steven Briggs Paul F. Gerhart Janet L. Gaunt

Joseph F. Gentile Paul F. Gerhart Paul F. Gerhart Gladys W. Gruenberg Paul F. Gerhart

Paul F. Gerhart Margery F. Gootnick Margery F. Gootnick Anita Christine

Knowlton

Dallas J. Jones

Margery F. Gootnick Gladys W. Gruenberg Galdys W. Gruenberg Lisa Salkovitz Kohn Anita Christine

Knowlton

Gladys W. Gruenberg Timothy J. Heinsz William H. Holley, Jr. Homer C. La Rue Homer C. La Rue

Timothy J. Heinsz William H. Holley, Jr. Sharon K. Imes William A. Marcotte William A. Marcotte

William H. Holley, Jr. Sharon K. Imes Anita Christine

Knowlton

Nels E. Nelson Nels E. Nelson

Sharon K. Imes Lisa Salkovitz Kohn Lisa Salkovitz Kohn Edward A. Pereles Edward A. Pereles

Mark L. Kahn William A. Marcotte William A. Marcotte Joseph M. Sharnoff Joseph M. Sharnoff

William A. Marcotte Joseph M. Sharnoff Joseph M. Sharnoff Rosemary A. Townley Rosemary A. Townley

Alex Elson, Ex-Officio Gerald E. Wallin Gerald E. Wallin Gerald E. Wallin Gerald E. Wallin

Alex Elson,Ex-Officio Alex Elson, Ex-Officio Alex Elson, Ex-Officio Alex Elson, Ex-Officio

260

Officers 2007-2008 2008-2009 2009-2010 2010-2011 2011-2012

President: Joseph M. Sharnoff Joseph M. Sharnoff Anita Christine

Knowlton

Anita Christine

Knowlton

Anita Christine

Knowlton

Vice-President: Lisa Salkovitz Kohn Lisa Salkovitz Kohn Allen Ponak Allen Ponak Allen Ponak

Secretary-Treasurer: David A. Petersen David A. Petersen David A. Petersen David A. Petersen David A. Petersen

Directors: Mario F. Bognanno Mario F. Bognanno Timothy J. Buckalew Timothy J. Buckalew Robert Gary Bailey

Tia Schneider Denenberg Tia Schneider Denenberg Tia Schneider Denenberg Tia Schneider Denenberg Patricia Thomas Bittel

Janet L. Gaunt Janet L. Gaunt Peter Feuille Peter Feuille Timothy J. Buckalew

Dallas J. Jones Marcia L. Greenbaum Marcia L. Greenbaum Marcia L. Greenbaum Peter Feuille

Anita Christine

Knowlton

Dallas J. Jones Paula Knopf Paula Knopf Marcia L. Greenbaum

Homer C. La Rue Anita Christine

Knowlton

Dennis R. Nolan Dennis R. Nolan Paula Knopf

William A. Marcotte Edward A. Pereles Martin H. Malin Martin H. Malin Martin H. Malin

Edward A. Pereles Allen Ponak Edward A. Pereles Edward A. Pereles Donald S. McPherson

Rosemary A. Townley Janet Maleson Spencer Alan A. Symonette Alan A. Symonette Kathleen Miller

Gerald E. Wallin Alan A. Symonette Elizabeth C. Wesman Elizabeth C. Wesman Dennis R. Nolan

Alex Elson, Ex-Officio Gerald E. Wallin David R. Williamson David R. Williamson Alan A. Symonette

Gladys W. Gruenberg, Barbara Zausner Barbara Zausner Elizabeth C. Wesman

Ex-Officio Gladys W. Gruenberg, Gladys W. Gruenberg, David R. Williamson

Ex-Officio Ex-Officio Barbara Zausner

Anita Christine

Knowlton, Ex-Officio

261

Officers 2012-2013 2013-2014 2014-2015 2015-2016 2016-2017

President: Allen Ponak Allen Ponak Elizabeth C. Wesman Elizabeth C. Wesman Catherine Harris

Vice-President(s): Robert Gary Bailey

Elizabeth C. Wesman

Elizabeth C. Wesman Catherine Harris Catherine Harris Richard D. Fincher

Secretary-Treasurer: David A. Petersen David A. Petersen David A. Petersen David A. Petersen David A. Petersen

Directors: Patricia Thomas Bittel Robert Gary Bailey Robert Gary Bailey Robert Gary Bailey Robert Gary Bailey

Linda S. Byars Patricia Thomas Bittel Patricia Thomas Bittel Patricia Thomas Bittel Patricia Thomas Bittel

Peter Feuille Linda S. Byars Linda S. Byars Linda S. Byars Linda S. Byars

Marcia L. Greenbaum Peter Feuille James B. Dworkin James B. Dworkin James B. Dworkin

William H. Holley, Jr. Marcia L. Greenbaum Peter Feuille Peter Feuille Charles P. Fischbach

Paula Knopf Catherine Harris Richard D. Fincher Richard D. Fincher George R. Fleischli

Martin H. Malin I.B. Helburn I.B. Helburn I.B. Helburn I.B. Helburn

Donald S. McPherson William H.Holley, Jr. William H. Holley, Jr. William H. Holley, Jr. Philip A. LaPorte

Kathleen Miller Paula Knopf Sharon K. Imes Sharon K. Imes Shelia G. Mayberry

Dennis R. Nolan Martin H. Malin Paula Knopf Paula Knopf Edward A. Pereles

Alan A. Symonette Dennis R. Nolan Martin H. Malin Martin H. Malin Mariann E. Schick

David R. Williamson Alan A. Symonette Susan L. Stewart Susan L. Stewart Susan L. Stewart

Anita Christine

Knowlton,

David R. Williamson David R. Williamson David R. Williamson Alan A. Symonette

Ex-Officio Anita Christine

Knowlton, Ex-Officio

Anita Christine

Knowlton, Ex-Officio

Anita Christine

Knowlton,

Ex-Officio

Anita Christine

Knowlton,

Ex-Officio

262

Officers 2017-2018 2018-2019 2019-2020 2020-2021 2021-2022

President: Catherine Harris Richard D. Fincher Richard D. Fincher Alan A. Symonette Alan A. Symonette

President-Elect Jeanne M. Vonhof

Vice-President(s): Richard D. Fincher Philip A. LaPorte Alan A. Symonette John C. Alfano

Jeanne M. Vonhof

John C. Alfano

Sheila G. Mayberry

Secretary-Treasurer: Walt De Treux Walt De Treux Walt De Treux Walt De Treux Walt De Treux

Directors: Christopher J. Albertyn Christopher J. Albertyn John C. Alfano Richard Bales Richard Bales

Linda S. Byars John C. Alfano Richard Bales Lisa C. Charles Lisa C. Charles

James B. Dworkin James B. Dworkin James B. Dworkin Sharon Henderson Ellis Jules I. Crystal

Charles P. Fischbach Sharon Henderson Ellis Sharon Henderson Ellis George R. Fleischli Rafael Gely

George R. Fleischli Charles P. Fischbach Charles P. Fischbach Rafael Gely Keith D. Greenberg

I.B. Helburn George R. Fleischli George R. Fleischli Keith D. Greenberg Philip A. LaPorte

Philip A. LaPorte Shelia G. Mayberry Shelia G. Mayberry Philip A. LaPorte Jasbir Parmar

Shelia G. Mayberry Edward A. Pereles Edward A. Pereles Sheila G. Mayberry Rosemary Pye

Edward A. Pereles Mariann E. Schick Mariann E. Schick Jasbir Parmar Andrew M. Strongin

Mariann E. Schick Susan L. Stewart Susan L. Stewart Edward A. Pereles David Weinberg

Susan L. Stewart Andrew M. Strongin Andrew M. Strongin Andrew M. Strongin Elizabeth C. Wesman

Alan A. Symonette Alan A. Symonette Jeanne M. Vonhof David Weinberg Betty R. Widgeon

Jeanne M. Vonhof Jeanne M. Vonhof George R. Fleischli,

Ex-Officio

263

Appe

ndix C

Annual Proceedings

Date Annual Mtg. Title Editor

1998 51

ARBITRATION 1998: THE CHANGING WORLD OF DISPUTE RESOLUTION

Steven Briggs

Jay E. Grenig

1999 52

ARBITRATION 1999: QUO VADIS?, THE FUTURE OF ARBITRATION AND COLLECTIVE

BARGAINING

Steven Briggs

Jay E. Grenig

2000 53

ARBITRATION 2000: WORKPLACE JUSTICE AND EFFICIENCY IN THE TWENTY-FIRST CENTURY

Steven Briggs

Jay E. Grenig

2001 54

ARBITRATION 2001: ARBITRATING IN AN EVOLVING LEGAL ENVIRONMENT

Steven Briggs

Jay E. Grenig

2002 55

ARBITRATION 2002: WORKPLACE ARBITRATION: A PROCESS IN EVOLUTION

Charles J. Coleman

2003 56

ARBITRATION 2003: ARBITRAL DECISION-MAKING: CONFRONTING CURRENT AND RECURRENT

ISSUES

Charles J. Coleman

2004 57

ARBITRATION 2004: NEW ISSUES AND INNOVATIONS IN WORKPLACE DISPUTE RESOLUTION

Charles J. Coleman

2005 58

ARBITRATION 2005: THE EVOLVING WORLD OF WORK

Stephen F. Befort

Paul F. Gerhart

2006 59

ARBITRATION 2006: TAKING STOCK IN A NEW CENTURY

Stephen F. Befort

Paul F. Gerhart

2007 60

ARBITRATION 2007: WORKPLACE JUSTICE FOR A CHANGING ENVIRONMENT

Stephen F. Befort

Patrick Halter

2008 61

ARBITRATION 2008: U.S. AND CANADIAN ARBITRATION: SAME PROBLEMS, DIFFERENT

APPROACHES

Patrick Halter

Paul D. Staudohar

2009 62

ARBITRATION 2009: DUE PROCESS IN THE WORKPLACE

Patrick Halter

Paul D. Staudohar

2010 63

ARBITRATION 2010: THE STEELWORKERS TRILOGY AT 50

Mark I. Lurie

Paul D. Staudohar

2011 64

ARBITRATION 2011: VARIETIES OF THE ARBITRATION EXPERIENCE

Nancy Kauffman

Mark I. Lurie

264

2012 65

ARBITRATION 2012 OUTSIDE IN: HOW THE EXTERNAL ENVIRONMENT IS SHAPING

ARBITRATION

Matthew M. Franckiewicz

Nancy Kauffman

2013 66

ARBITRATION 2013: A TALE OF TWO COUNTRIES

Richard N. Block

Matthew M. Franckiewicz

Nancy Kauffman

William A. Marcotte

2014 67

ARBITRATION 2014: THE TEST OF TIME

Richard N. Block

Charles Feigenbaum

Rose F. Jacobs

Susan Grody Ruben

Mary Ellen Shea

Jan Stiglitz

2015 68

ARBITRATION 2015: PRIVACY, TRANSPARENCY, LEGITIMACY

Katherine J. Thomson

2016 69

ARBITRATION 2016: ARBITRATION IN PRACTICE

Mark Thompson

2017 70

ARBITRATION 2017: THE NEW WORLD OF WORK

Stephen L Hayford

2018 71

ARBITRATION 2018: BOUNDARIES AND BRIDGES

Timothy J. Brown

2019 72

ARBITRATION 2019: THE FUTURE OF WORK

Howard G. Foster

265

Index

Aaron, Benjamin, 15, 171, 175, 178,

186, 187, 208

Abramsky, Randi, 145, 152, 153

Adler, Sara, 4, 66, 74, 75, 82, 172,

179, 181

Advertising and solicitation, 169,

205, 210

Advice Letter(s), 30

Advisory Opinion(s), 13, 26, 27, 30,

31, 205

Airline Industry, 89, 105, 106, 108,

109, 110, 111, 112, 113, 115, 117,

118, 124

Air Cargo, 113

Carriers, 112

Flight attendants, 113, 115, 118,

119, 122, 123

Ground Employee, 114

Interest Arbitration, 109

Labor Organizations, 113

Low-Cost Carriers, 112

Major Airlines, 111, 112, 113,

118

Major and minor disputes, 108,

114

National Mediation Board and

roster, 115

Pilot, 113

Presidential Emergency Boards,

107, 109, 114

Railway Labor Act, 106

Regional, 108, 109, 110, 112,

113, 114, 115, 116, 118, 154,

167, 168, 173, 197, 199

Seniority list integration cases,

111, 124

Strikes, 110

System Boards of Adjustment,

108

Trends, 110

Alkon, Cynthia, 69, 70

Alleyne, Reginald, 47

American Arbitration Association,

26, 39, 41, 61, 73, 77, 184, 191,

199, 200, 206, 209

AAA, 12, 17, 23, 26, 32, 36, 40,

41, 49, 70, 161, 181, 184, 200,

206, 209, 210, 211, 227, 229,

235, 236

American Bar Association, 15, 48,

53, 54

ABA Resolution 105, 47, 48, 51,

52, 53

ABA Resolution 113, 53

Amicus Brief Advisory Committee,

188, 189, 194

Amicus Briefs, 185

Arbitral Finality and Limited

Judicial Review, 190

Canadian Cases, 194

Nonunion employment

arbitration, 185, 187

Annual Meeting and Member

Education Conference, 5

Arbitration

Canadian experience, 136, 138,

152

Employment, 6, 8, 24, 25, 26, 51,

55, 75, 157, 158, 159, 160,

161, 162, 163, 164, 165, 166,

167, 168, 170, 171, 172, 173,

174, 176, 177, 179, 180, 184,

185, 193, 200, 202

Interest, 17, 57, 64, 86, 96, 105,

107, 109, 114, 115, 118, 119,

129, 133, 134, 154, 194

Labor/Labour, 6, 14, 65, 74, 77,

79, 80, 81, 136, 139, 148, 149,

157, 160, 163, 166, 168, 175,

176, 185, 190, 192, 194, 195,

197, 198, 200, 201, 203, 240

ArbitrationInfo.com, 75, 198, 203

AT&T Mobility LLC v. Concepcion,

185

AT&T Technologies v.

Communications Workers, 190

Bailer, Lloyd H., 41

Bailey, Robert, 203

Bairstow, Frances, 61, 81, 153, 198

Bankruptcy Code Section 1113, 117

Beck Committee, 158, 159, 160, 161,

164, 169

Beck Report, 161

Beck, Michael, 24

Befort, Stephen, 189

Bethel, Terry, 189

Bethlehem Steel, 44, 60, 80, 127,

128, 129, 134

Bickner, Mei, 74

Bloch Committee, 5, 81

Bloch Report Implementation

Committee (BRIC), 5

Bloch, Richard, 3, 5, 6, 23, 81, 97,

115, 116, 117, 118, 121, 165, 205

Block, Howard, 158, 159, 187

266

Board of Governors (BOG), NAA, 1,

2, 3, 4, 5, 6, 7, 8, 9, 12, 23, 29, 30,

35, 53, 55, 71, 158, 160, 173, 174,

179, 180, 183, 195, 197, 198, 199,

203, 236, 240

Body cameras in law enforcement,

use of, 214

Brogan, Margaret, 6, 9, 44, 45, 50,

51, 52, 72, 76, 77, 78, 79, 81, 82,

102, 167, 179, 180, 202

Brotherhoods, railroad, 84

Bruce Hardwood Floors, 190

Canada (Minister of Citizenship and

Immigration v. Vavilov), 148,

156, 195

Canadian Region, 153, 154, 155, 156

Canadian Union of Public

Employees v. Ontario (Minister of

Labour), 194

CanLII, 149

Charles, Jeanne, 10, 236

Chronicle, The, 29, 40, 58, 62, 63,

65, 75, 136, 198

Circuit City Stores v. Adams, 163,

185, 193

Citizens United, 238

City of North Las Vegas, 191

Clarke, Jack, 9, 162, 181

Code civil du Quebec, 145, 151

Code of Professional Responsibility

(Code of Ethics), 11, 12, 15, 16,

17, 18, 24, 26, 30, 31, 36, 37, 83,

161, 169, 181, 184, 191, 201, 205,

206, 210

Application to Employment

Arbitration and ADR, 24

Enforcement, 26

Hearing Conduct, 18, 20, 182

Preamble, 17, 18, 23, 24, 25, 26,

161, 184

Procedures for Amendments, 23

Responsibilities to Adminstrative

Agencies, 20

Responsibilities to the Parties, 18

Committee on Academy

Governance, 171

Committee on Cost and Attendance,

4, 5

Committee on Professional

Responsibility and Grievances

(CPRG), formerly known as

Committee on Ethics and

Grievances, 20, 23, 24, 27, 28, 29,

30, 31, 32, 33, 34, 35, 36, 37, 161,

183, 184, 204, 236, 246

Additional Functions, 35

Internal Grievance Procedure, 35

Membership Standards, 35

Policies and Procedures Manual,

penalties, 28, 33

Common Law of the Workplace, The,

185, 186

Computer, misuse of, 232

Connick v. Myers, 217

Constitution, NAA, 1, 4, 8, 23, 24,

160, 161, 169, 170, 176, 179, 181,

188, 206

Article II, 8, 11, 23, 24, 160, 176

Article IV, 1, 23, 27, 28, 30, 33,

Article VI, 35, 42, 43

Canadian, 137

Coordinator of Internal Grievances,

Coordinator of Regional Activities,

58, 78

Cornell Survey, 162

Cornell University, 56, 57, 59, 62,

63, 67, 162

COVID-19, 5, 10, 109, 112, 113,

115, 124, 199, 235

Cox, Archibald, 14, 44

Critical Incident Stress, 216

Das, Shyam, 81, 97, 121, 125, 186,

203

De Treux, Walt, 1, 9, 52

Denenberg, Tia, 70, 236

Diversity, 38

Due Process Protocol, 161, 181, 183,

184, 192

Dunlop Commission, 87, 89, 106

Dunsford, John (Jack), 65, 171, 198

Dybeck, Alfred, 130, 131, 132, 134

Eastern Associated Coal, 191

Edwards, Harry (Judge), 45, 47, 198

Eischen, Dana, 1, 34, 105, 121, 122

Elson, Alex, 15, 16, 20, 189, 198

Employment Arbitration, 6, 24, 26,

158, 180, 181, 183, 184, 192, 193,

200

Academy actions re, 161

Amicus Briefs filed re, 185, 189

267

Beck Committee, 160

Fleischli Committee, 164, 165

New Directions Committee, 6, 77,

102, 157, 167, 180

New Membership Standards, 180

Operational Planning Committee,

165

Ottawa vote, 157

San Francisco vote, 170

Employment arbitrator, 26, 42, 43,

75, 160, 162, 163, 168, 180, 181,

183, 184

Enterprise Wheel & Car Corp.,

Steelworkers v., 190, 191, 195

Epic Systems Corp. v. Lewis, 185,

194

Ethics, 11, 12, 13, 14, 17, 21, 23,

207, 240

Ex parte conduct, 21, 182

Fact-finding, 6, 16, 17, 35, 43, 46,

123, 170, 173, 174

Fall Education Conference, 4, 5, 6, 8,

81, 159, 165, 166, 167, 168, 170,

173, 176, 199, 203, 236

Federal Arbitration Act, 158, 163,

185, 192, 193, 195

Federal Mediation and Conciliation

Services (FCMS), 12, 17, 23, 26,

30, 32, 34, 36, 41, 70, 181, 197,

200, 202, 204, 209, 210, 211, 236

Becoming a Labor Arbitrator

(BALA), 202

Federal Railroad Administration

(FRA), 93, 101

Federal Trade Commission (FTC), 3,

23, 205, 206, 207, 208

Feinsinger, Nathan, 12

Feller, David, 160, 163, 185, 189,

190, 191, 192, 193, 195, 208

Finkelman, Jacob, 151

First Amendment, 206, 218, 219,

220, 238

Fleischli Committee, 164, 165

Fleischli, George, 6, 24, 164, 165,

166, 176, 177, 178, 179, 181, 183,

189

Francis, Edna, 74

Friedman, Clara, 40, 44, 47, 63

Garraty, Sarah, 7, 180

Garrett, Sylvester, 79, 80, 127, 128,

129, 130, 131, 132, 133, 134, 198

Gatekeeper phenomenon, 45

Gely, Rafael, 203

Gentile, Joe, 74, 75, 192

Gershenfeld, Gladys, 97, 186

Gershenfeld, Walter, 15, 161, 165,

179

Gilmer v. Interstate/Johnson Lane

Corp., 157, 158, 159, 163, 192,

193

Global Positioning System (GPS),

212, 213, 214, 231, 237

Golick, Roberta, 66, 71, 72, 73, 74,

81, 82, 97, 102, 181, 198

Gootnick, Margery, 63, 64, 65, 68,

69, 70, 73, 75, 80, 81, 102, 166,

179

Governance Reform Committee, 1

Grant, Alice, 62

Greenbaum, Marcia, 47, 57, 59, 60,

61, 62, 73

Greenberg, Keith, 10, 236

Griffin, Katie, 2, 136, 199

Gruenberg, Gladys, 17, 26, 59, 66,

71, 105, 136, 157, 159, 161, 184,

186, 190, 204

Guidelines for Employment

Arbitration, 180

Harkless, James, 6, 40, 44, 45, 47,

55, 164, 165, 167, 198

Harris, Robert, 88, 97, 105, 106, 109,

110, 116, 117, 120

Hays, Paul (Judge), 14, 15

Health Insurance Portability and

Accountability Act (HIPAA),

214, 231, 232

History Committee, 63

Holley Jr., William, 1, 2, 3, 5, 8, 165,

166

Javits, Joshua M., 87, 88, 96, 97,

103, 105, 106, 118, 119, 121, 123,

124

Kagel, John, 152, 155, 164, 186

Kahn, Mark, 197

Kahn, Ruth, 65

Kelley, Melissa, 2

Kelley, Suzanne, 2

Killingsworth, Charles, 125, 126

Knopf, Paula, 5, 144

Krinsky, Edward, 5, 181

La Rue, Homer C., 9, 10, 38, 44, 45,

52, 53, 199, 236

Labor Arbitration Code (Labor

Code), 181, 182, 183, 184

Labor Arbitrator, 14, 51, 67, 79, 81,

92, 159, 160, 164, 168, 183, 184,

186, 187, 192, 194, 239, 240

Labor/Labour Arbitration, 136, 149

268

In Canada, 136, 149

In Canada, Arbitral authority in,

139, 140

In Canada, Interpretation and

application of statutes, 143

In Canada, Judicial review, 146

In Canada, Procedural differences

from U.S., 149

Laskin, Bora, 139, 140, 143, 146,

151, 152

Legal Representation Fund (LRF),

29, 75

Leslie, Mabel, 58

Loucks, William, 14

MacDonald, Lois, 58

Malin, Martin (Marty), 170, 174,

179, 181, 189

Maloney, Emily, 63

McDermott, Clare B., 80, 130, 187

McKelvey, Jean, 12, 13, 15, 16, 17,

56, 57, 58, 59, 60, 61, 62, 63, 64,

65, 70, 71, 75, 79, 81, 197, 198,

201

Mediation, 7, 9, 41, 48, 57, 58, 88,

102, 105, 106, 107, 109, 161, 184,

191, 192, 197, 199, 200, 206, 209,

237

Grievance mediation, 90, 114

Membership Committee, 6, 8, 12, 33,

35, 160, 165, 173, 174, 179

Membership in NAA, 2

Membership Standards, 6, 7, 35, 179

Membership Standards Committee, 7

Mentoring of new arbitrators and

interns, 9, 45, 68, 72, 78, 102,

199, 201, 202

Michigan Family Resources, 191

Miller, Kathleen, 5, 9, 78, 79, 80, 81,

82, 203

Misco, Paper Workers v., 191

Mittenthal, Richard (Dick), 79, 97,

126, 129, 171, 176, 178, 187

Moore v.Conliffe, 192

Murphy, William P. (Bill), 171, 178,

190, 191

Najita, Joyce, 17, 59, 61, 105, 136,

153, 157, 180, 184, 197, 204

National Academy of Arbitrators

(NAA)

Airline Industry and, 105

Amicus briefs filed by, 155, 163,

185, 188, 189, 190, 191, 192,

193, 194, 195, 196

Annual meetings and FEC, 4

Board of Governors (BOG), 1, 2,

3, 4, 5, 6, 7, 8, 9, 12, 23, 30,

35, 53, 71, 158, 174, 179, 180,

183, 195, 197, 198, 199, 203,

240

Canadian Region, 153, 154, 156

Canadians in, 136, 151

Diversity within, 38, 40, 45, 47,

48, 49, 50, 51, 54, 55, 76, 78,

80, 81, 83, 199, 202

Fall Education Conference (FEC),

4, 5, 6, 8, 81, 159, 165, 166,

167, 170, 173, 176, 198, 199,

200

Finances, 2

First woman president, 60

Future of, 238

Internal grievance procedure, 35

Membership, 2

Membership standards, 6, 35

Modern era of, 66

Railroad industry and, 84

Training and education in, 197

Training and education in

advocate training, 200

Training and education in

member training, 198

Training and education in new

arbitrator training, 201

Visibility and outreach, 8

Women and, 40, 44, 45, 56, 57,

58, 59, 60, 61, 63, 65, 68, 70,

71, 73, 74, 77, 78, 80, 207,

230, 231

National Association of Railroad

Referees, 90, 102, 199, 202

National Carriers’ Conference

Committee (NCCC), 86

National Labor Relations Act

(NLRA), 88, 93, 106, 108, 159,

185, 194

National Labor Relations Board

(NLRB), 43, 44, 77, 93, 185, 194

National Mediation Board (NMB),

88, 89, 90, 91, 92, 95, 96, 98, 102,

105, 106, 107, 109, 114, 117, 121,

122

National Railroad Adjustment Board

(NRAB), 87, 88, 90, 92, 99, 100,

102

National Railway Labor Conference

(NRLC), 86, 94, 103

New Directions Committee (NDC),

6, 77, 102, 157, 167, 180

269

New Member Orientation

Committee, 65

Newman, Margo, 9, 152, 153

Nicolau, George, 8, 115, 116, 118,

121, 122, 161, 177, 198

Nielsen, Daniel, 4, 5, 10, 11, 170,

174, 179, 184, 236

Nolan, Dennis, 6, 17, 24, 25, 26, 59,

105, 121, 122, 136, 157, 162, 181,

184, 186, 189, 192, 195, 204

Nominating Committee, 44

Oldham, James, 8, 186, 193, 197,

203

Ontario Labour-Management

Arbitrators Association, 154, 156

Operational Planning Committee,

166

Organizing Committee (re RCI), 53,

54, 55

Outreach Committee, 9, 51, 52, 79,

81, 202

Petersen, David, 1, 2, 3, 130, 166,

205

Picher, Michel, 6, 67, 82, 151, 154,

161, 162, 177, 179, 194

Ponak, Allen, 151, 153

Positive Train Control, 85, 103

Preamble, 18

Precision Scheduled Railroading

(PSR), 85

Presidential Emergency Boards

(PEBs), 86, 88, 109, 114

Privy Council (Canada), 137, 139

Proceedings, The, 58, 212

Public employees, 59, 215

Public Sector Bargaining, 59

Pyett, 14 Penn Plaza v., 145, 193

Race, and NAA, 10, 38, 40, 45, 47,

62, 67, 239

Railroad Industry, 84

Collective Bargaining within, 86

Determination of disputes, major

vs. minor, 99

Industry Overview, 84

Labor Protective Provision

Arbitrations, 94

Major (Bargaining) Disputes, 94

National Association of Railroad

Referees, 102

National Mediation Board, 88

Neutral Compensation, 91

Neutral Development, Utilization,

and Training, 91

Pattern Bargaining, 98

Railroad Industry Dispute

Resolution Processes, 92

Railway Labor Act, 87

Section 3 Discipline Cases, 92

Technological and Operational

Changes, 84

Railway Labor Act, 7, 87, 96, 105,

106, 120, 202

Railway Labor Executives

Association (RLEA), 86, 94

Ray Corollary Institute (RCI), 9, 53,

54, 55

Regional Activities National

Coordinator, 9

Regional Education Conference

Resources Subcommittee, 9

Reif, Kate, 1, 2

Research and Education Committee,

197

Research and Education Foundation

(REF), 198, 199, 203, 212

Robins, Eva, 52, 58, 59, 62, 65, 66,

70, 75

Salon, 9, 51, 52, 66, 70, 77

Schulman, Harry, 14

Seitz, Peter, 66, 70, 71, 198

Seward, Ralph, 125, 126, 127, 129,

130

Sharpe, Calvin, 186, 189, 191

Sinicropi, Anthony (Tony), 109, 116,

159, 163, 187

Skills Enhancement Workshop

(SEWs), 197, 200

Skratek, Sylvia, 152, 236

Social media, 214, 220, 223, 225

Discipline cases re, 220

Special Committee for Development

of New Arbitrators, 60

Special Committee on Academy

Visibility, 8

Special Committee on Employment

Related Dispute Resolution

(Picher Committee), 161

Special Committee on Meeting

Attendance, 5

Special Committee on the

Academy's Future (Fleischli

Committee), 6, 164

Special Committee to Review

Membership and Related Policy

Questions of the Academy

(Reexamination Committee), 39,

46, 63

270

St. Antoine, Theodore J., 25, 26,

163, 164, 179, 180, 181, 185, 187,

191, 195, 198

Steelworkers Trilogy, 190

Stewart, Susan L., 82, 83, 151, 156,

181

Strikes, 61, 86, 87, 90, 94, 95, 97,

98, 104, 110, 117, 140, 239

In airline industry, 110

Supreme Court of Canada, 138, 140,

141, 143, 144, 145, 146, 149, 154,

189, 194

Surface Transportation Board, 94

Swan,Kenneth P., 82, 136

Symonette, Alan, 9, 10, 38, 53, 77,

199

System boards of adjustment

(SBAs), 105, 107

Technology, 209

Body cameras in law

enforcement, arbitration

decisions re, 216

Body cameras in law

enforcement, use of, 214

Evidence in discipline cases, 230

First Amendment, 218, 219

Global positioning satellite

(GPS), 213, 231, 237

Historical developments, 209,

210, 211, 212, 214

Misuse of computer, 232

Public employees, 217

Social media, 217, 220, 221, 222,

224, 225

Social media, discipline cases re,

220, 221, 222

Video recording, 214

Video surveillance, 226, 227, 228

Tener, Jeffrey B., 6, 165, 166, 167,

176, 179, 181

Unite Here Local 355 v. Mulhall,

192

United States Steel, 65, 129

United Steelworkers (Steelworkers),

44, 62, 65, 80

Valtin, Rolf, 13

Vaughn, M. David, 8, 84, 97, 103,

108, 122

Vernon, Gil, 7, 9, 96, 97, 101, 102,

181, 203

Veteran’s Procedure, 6

Video Recording, 214

Video Surveillance, 226, 228

Videoconferencing, 236

Videoconferencing Task Force, 10,

54, 151, 204, 236

Visibility Committee, 8

Waivers, Academy membership, 3,

194

Wallen, Saul, 58, 59, 61, 125, 126

War Labor Board, 56, 57, 61, 125,

127

Warns, Carl, 63

Warns, Marian Kincaid, 56, 57, 58

Weatherill, J.F.W. (Ted), 151, 152,

153

Weiler amendments, 148

Weiler, Paul, 144

Winograd, Barry, 6, 7, 8, 9, 10, 165,

166, 167, 170, 179, 181, 185, 188,

189, 192, 193

Witt, Helen, 63, 65, 70, 71, 78, 79,

81, 88, 97, 105, 109, 110, 116,

130

Women, and the NAA, 56

Woods, H.D. (Bus), 137, 138, 151,

153

Wright v. Universal Maritime

Service Corp., 193

Zack, Arnold, 59, 61, 73, 97, 161,

185, 186, 187, 198, 199, 201

Zausner, Barbara, 6, 66, 70, 71, 97,

177, 179

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