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Dear Steward: Contract Law – 4 Tools

We excerpt the introduction of a lecture given by a prominent labor arbitrator.  His topic was Contract Interpretation.  Many of his points are stated in a fresh way.

We’re here to serve you and give life to the words you agreed to in the CBA.  That is our job.

Obviously, there’s a dispute about what the language means, and we’re trying to put ourselves in the best position to understand what your mutual intent (or your previous bargaining team’s intent) was.  Mutual is just another way of saying joint, as in your joint (or both parties’) intent.

We have tools.  The tools are what we use.  The first tool are the words themselves.  We rarely need a dictionary because the parties use words that are known to them and many others.

In those rare cases, where the word or words have a special meaning, then the parties educate us at the hearing.  The testimony, documents, and exhibits are introduced into evidence.

The second tool can be a dictionary including those which deal with industrial and labor relations terms.  But as I said, this is a rare case.

The third tool is bargaining history.  You know how contracts are negotiated.  Everyone pulls out the current contract and circles what they would like to change.  Contracts build on each other.  All arbitrators know this.  This history can explain the parties’ intent at the bargaining table.

The fourth tool is past practice.  This doctrine has a considerable body of law behind it.  It can explain what the parties intended at the bargaining table.  Or it can “fill in the gaps” between provisions.  Or the past practice can become a stand-alone provision of the CBA.  This third way is important to understand because it’s the one that will require more analysis.

With this introduction, you now have the 4 tools.  There are also contract law maxims, but first go through these 4 tools, just as the arbitrator does.

-Steward Council

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