COLLECTIVE BARGAINING AND THE ARBITRATOR
LON L. FULLER *
The purpose of this paper is to discuss two controversies which have surrounded labor arbitration almost from its inception. They touch on what may be called its permanent problems. Recently they have been brought into renewed prominence by certain judicial decisions and in particular by certain observations by Mr. Justice Douglas in the Three Steelworker Cases.1 The first of these controversies relates to the proper role of the arbitrator—how he should conceive his function, how he should conduct the hearings, and what limits he should impose on himself. The second relates to the principles he should follow in interpreting the collective bargaining agreement and in applying its provisions to the controversy before him. As this statement of the second issue implies, my concern here is primarily with arbitration arising under an existing agreement, and not with arbitration conducted to set the terms of a new contract. One conception of the role of the arbitrator is that he is essentially a judge. His job is to do justice according to the rules imposed by the parties' contract, leaving the chips to fall where they may. He decides the controversy entirely on the basis of arguments and proofs presented to him "in open court" with the parties confronting one another face to face. He does not attempt to mediate or conciliate, for to do so would be to compromise his role as an adjudicator. He will strictly forego any private communication with the parties after the hearing. The friends of this conception see it as casting the arbitrator in the role of a man of principle, a man who respects the institutional limits of • Carter Professor of General Jurisprudence, Harvard Law School. United Steelworkers v. American Mfg. Co., 34 LA 559, 363 U.S. 564 (I960); United Steelworkers v. Warrior ir Gulf Navigation Co., 34 LA 561, 363 U.S. 574 (1960); United Steelworkers v. Enterprise Wheel ir Car Corp., 34 LA 569, 363 U.S. 593 (1960). 1
COLLECTIVE BABGAINING AND THE ARBITRATOR
his task, who conscientiously refuses to exploit his powers for ulterior purposes, however benign. The critics of this conception have a less flattering view of it. To them it is unrealistic, prudish, purist, legalistic, an abandonment of common sense, a chasing after false models motivated perhaps by a secret hankering for the glamour and security of judicial office. The opposing conception expects of the arbitrator that he should adapt his procedures to the case at hand. Indeed, in its more extreme form it rejects the notion that his powers for good should be restrained at all by procedural limitations. By this view the arbitrator has a roving commission to straighten things out, the immediate controversy marking the. occasion for, but not the limits of, his intervention. If the formal submission leaves fringes of dispute unsettled, he will gladly undertake to tidy them up. If the arguments at the hearing leave him in doubt as to the actual causes of the dispute, or as to what the parties really expect of him, he will not scruple to hold private consultations for his further enlightenment. If he senses the possibility of a settlement, he will not hesitate to step down from his role as arbitrator to assume that of mediator. If despite his conciliatory skill negotiations become sticky, he will follow Harry Shulman's advice and—with an admonitory glance toward the chair just vacated —"exert the gentle pressure of a threat of decision" to induce agreement.2 The critics of this view are seldom charitable in describing it. They say that arbitrators who accept it think they can "play God," though the actual motive of their actions is usually a base instinct to meddle in other people's affairs. The conception that encourages this intermeddling rests essentially on hypocrisy, for it enables a man who pretends to be a judge to enjoy the powers of his office without accepting its...