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Dear Steward: Contract Dispute – Arbitrator’s Limited Role

When there’s a contract language dispute, the arbitrator views their role in a limited way:  to ascertain the intent of the parties when the parties negotiated and adopted the language.  Arbitrators say to themselves:  Determine what the parties’ mutual intent was and get out.

Arbitrators want the parties to know that the arbitrator’s jurisdiction is very constrained.  This is simply how arbitration has evolved in this country.  Arbitrators read the contract and tell you what it means.  They don’t look to do anything more. 

A related point:  Arbitrators are the last step in a grievance process that, in the arbitrators’ view, has failed.  It becomes another reason for arbitrators to exercise restraint.

At the Philadelphia conference this fall, one faculty member gave the following example.

Contract Language

The contract provision reads:  “Employer will provide a safe work environment.  . . . the employer will provide personal protective equipment:  [a list of 10 things].”

Dispute

A union member files a grievance and argues that a piece of equipment not on the list is part of a safe work environment.  He argues that he needs it, in order to be safe (feel safe, work in a safe environment, etc.).  He may even cite a new OSHA regulation or how this equipment is better than what is included in the list of 10 items, or that it didn’t exist at the time the list was compiled, or replaces something on the list.

Decision

The arbitrator’s role is limited;  what did the parties intend?  The arbitrator’s analysis will be straightforward.  The parties made a general statement about a safe work environment.  They made a list of specific items that define what is “safe” in their view.

Stated another way, if the parties had intended the grievant’s requested item to be on the list, they would have negotiated it onto the list.

See how limited the arbitrator’s role is?   The grievant is asking the arbitrator to simply add an item to the list.  No! – the parties can do that.  In our system, the arbitrator cannot.

Alternative Scenario

Change the language to:  “Employer will provide a safe work environment.  . . . the employer will provide personal protective equipment, such as:  [again, a list of 10 things]”

In this case, the union has an argument:  “The requested item is similar to one of the other 10 items.   And the parties used general language (“such as”) to include more than just the 10 items.”   The arbitrator now, in still a limited way, can rule that the requested item is so close to what is listed, that the parties’ intent was to provide a safe work environment with anything that fits “within the list.”

The question becomes whether the parties left it open.  And the arbitrator can either say ‘yes’ or ‘no’ as to the requested item.  The teaching point here is that the arbitrator has a narrow mandate – ascertain the parties’ mutual intent and let the parties adhere to their contract language.

-L2019 Steward Council

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