The Use of Precedent in Labor Arbitration

85 Pages·2013·5.3 MB·English

by  Joseph Raymond Hlavin

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Master's Theses Theses and Dissertations
1952
TThhee UUssee ooff PPrreecceeddeenntt iinn LLaabboorr AArrbbiittrraattiioonn
Joseph Raymond Hlavin
Loyola University Chicago
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Copyright © 1952 Joseph Raymond Hlavin
jiP
..
by
Joeepb R. IlaYin" Jr.
A Thesis SUbJaitted to the Facul.V et the Institute ot Social
a.n4 Indusw1al Relations of Lo,-ola University in PaJ't1al
hlfilltrtent of the Req~t8 for the Degree
of Muter of Social an4 Induatrial
ielatioua
re'bruary
1951
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Joseph Raymond Hlavin, Jr. was born in Chicago, nlinois, Janua1"7 29,
1929.
st.
He .. graduated from Mel High Sohool, Chioago, Illinois, June,
1946J from J. Sterling Morton Junior College, Cicero, I1l1nois, June, 1948,
with the degree ot Bachelor of lducationJ and trom Loyola University, June,
19$1, with the degree ot Bachelor ot Science in the Social Sciences.
He 'began his graduate studies at Loyola University in September, 19$0.
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Chapter Page
I. MRODUCTIOlf ............ * ., •• ,. .......... ., ... ., ...... ., 1
ti ., ..................... .,
Objectives of the thUU-Procedur....-Det1rd.t.1ons of te1"lD
1nvolTe4.
II. THE BlClGROUND OF LABOR ARBITRAtION ••••••••••••••••••••••••••• 6
Early arbitration cases-The Erdman and .Iewl.ands Acts
Arbitration after l.9O().o.ltfect of World Wu I on labor
arbitration-State and Federalleg1slation--Basic charac
teristics emphasized 1n growth of labor arbitration.
III. M DIVJ:LO.'f'MENt OJ' PRECEDENT IN COMMON LAW ................. ., .....1 8
Histor1cal origin of the common J.av-.Bracton and his Note
or
book-The Yearbooks-Later decisions importance-~
~s-Riceni ait1tu4es on place of precedent 1n common
u;:--
IV. ARGt:IHl!:NTS IN FAVOR OF THE USE OF PRECEDENT DI IABOR ARBITBA-
'1'1Olf ....................................................••••• 30
A eonn.on 1&wor arbitration-Objections to bind.1ng pre. ...
dent-Bel1ef in value of persuasive precedent.
V.. ARGt:JMDTS AGAIIST THE USB OF PUCEDM II LABOR ARBrtRATIOI .... 48
The courts compared to labor a.rbitratlon-A4amant objec
tiona-HcPberson f8 l1at ot danger. ....I Ddecia1on as to role
of "stare clecis1a.,·
n.
.ARBI'l'RlfIOJ OF DISPUTES OF RIwrtS Alm DISPUTES OF I!f'rlmBSTS .. "s,
Difference between disputes of right and. di.sputea of
interest-Objections to arb!t ratlon of disputes of inter
est-Proposal of ~ts in arbitrating disputes of
interest.
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VII. CONCLUSION ••••••••••••••••••••••••••••••••••••••••••••••••••••6 9
Summary of tbesi8-Probable tuture trend in regard to use
of precedent 1n labor arbitration.
BIBUOGRAPBI ..........................................................7 3
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Table Page
I. DISTRIBUTION OF QUESTIOINAIRES •••••••••••••••••••••••••••••••••3 0
II. WEIGHT TO BE GIVD PRICIDENTS II LABOR AnB.ttRlTIOI .............3 2
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CHAFl'ER I
INTRODUCTION
Recent years have witnessed an astonishing aoceleration in the use ot
industrial arb1tration. 1 Almost all types of controversies an4 subjects
of coUect1ve bargaining are being entrusted to 1ts process~ Where but a
fev years ago many employers and unions were adamant against submission to
arbitration, now we find they accept that Focessas not onl1' a 8U1table
and final step in the settlement of gr1evances, but also as an aid to the
completion of collectlvel¥ bargained contracts in almost all d.etails. 2
Arbitration has become a standard affair in labor-management relati<,ms,
al.1'I1ost a.much so as the collective bargain.ing agreement itself t:
Yet it must be rem.erabered that industrial arbitration 1s a
relative~
new occurrence. And being 80, v1thcut the benetit of the rules and
regulations that acoOli1.p8lW experience, it is constan~ under f1re41 Though
the bas1c concept ot the process is tai:tq well established, a question
presents itseU as to the torm it should take. Some would have it tOl"ll'l&l.
as the court.a, others desire it as an informal procedure. The latter group
fears that a.tlY other courae would result in a betrayal ot the very 1deala
that comprise the arbitration process.
I L~ paper w:lll be lim1tedto industrial arbitration within the Unite4
!Stl.tes.
2 Clarence lit. Updegraft and 'Whitley- p. McCoy, Arbitration ot Labor Dis-
'ij~' New York, 1946, 1. ,
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This theais w1ll be conoarnecl with only one aspect of the IIOre complex
issue involving the degree of formalisation that arbitration should have,
that being the proper value of precedent in industrial arbitl"8:tton. Three
basic objective8 8bal.l guide this study'r first, a comparison ot the devel.
opment ot ~t in common law and in the arbitrational proce#.J
8ec~, a preaentation of the major arguments tor and against the 'Ue ot
precedent in industrial arbitration, and thirdq, an attempt to determine
the future status of precedent and its proper place in the arbitration ot
both d18pute8 ot rights and. disputes ot interests. To achieve theM ends,
it will be necessary to adllere to a certain procedure.
!he first chapter shall 1ut.roduce the proUl_ and present the method
of the study. In addition to an introduction and presentation ot the ch1et
factors involved in the thesis, .. definition ot terms will also be 1nclud.e4.
The secomt chapter shall portray the baokgrt'lWld of induetr1al. U'l)i".
tration. This icr done in oral" to d.emoDStrate the factors which haft been
emphasised in ita growth. We can better appraise arbitration's .future u
we its paat.
~Ie
The third chapter shall pursue the development ot precedent 1ft C01I1UOJ'1
~1I. This is an appropriate atep since arbitration and common law are often
conc,lved of as tellow-travelers and. parallel struotures. A clear under
s~r~4Ung . of precedent' a role in common law will do much to el.1m.i.D&te
'?
t f
u:riv.ar.ranted analogies and eonsequentl1', in-val1d assertions.
the tourth chapter presents the main contentions tor the use of pre
.• ced~t in industrial arbitration. As in a~ attempt to set forth a
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comprehensive picture of an intricate proble. . it will be necessary to dr_
upon the views of contemporv1es, many prominent as arbitratonJ themselves.
Their ideas shall be stressed. since thue men are helpirlg to mold the future
shape of arbitration.
The ruth chapter treats ot the major arguments against the use of
precedent in industrial arb!t ration. As in the previous chapter, web
weight sball be acoorded their reasoning.
The f.t1xth chapter deals vith the place of prece4ent in the arbitration
o£ diaput$s of rights and dispute. ot interest.. A distinction betwen the
two is ciravn, a step frequently overlooked..
The seventh and final chapter shall be the conolusion. Here the data
w1ll be s'WlUllU'ised, and the writer v.Ul derive conclusions in keeping with
the objectives of this 8t~.
Since it wuld be unwise to proceed further without aeh1e. ..! Dg a COIltIIlOn
agreement as to the meaning of terms involved, this shall be dODe present17.
The general term ·arbitration" shall be taken to mean an Wormal and
flexible process U which the parties theuelTea, b.r mutual agreement,
establish their ow. l"Ules of procedure, s.lect the arbitrator or establish
a ~thod. tor his selection, t1x time limits, define the problem or issue
to be submitted, and mutually agree that vlthin such liDdts the arbitrator's
4~on8hall be t1Dal and bind1ng. ,
',j ~ ~
"Industrial arbitration shall be regarded as the settlement r4 dis-
It