NCJ Number
53640
Journal
Labor Law Journal Volume: 29 Issue: 8 Dated: (AUGUST 1978) Pages: 536-542
Date Published
1978
Length
7 pages
Annotation
WAYS IN WHICH ARBITRATORS DEFINE THE 'COMMON LAW OF THE SHOP' AND IN WHICH THEY TREAT THIS LAW IN THEIR OPINIONS ARE DESCRIBED, WITH COMMON LAW OF THE SHOP CONSIDERED IN TERMS OF INDUSTRIAL LABOR RELATIONS.
Abstract
A U.S. SUPREME COURT DECISION STATES THAT THE LABOR ARBITRATOR'S SOURCE OF LAW IS NOT CONFINED TO EXPRESS PROVISIONS OF A CONTRACT; PRACTICES OF AN INDUSTRY AND A SHOP, UNDER INDUSTRIAL COMMON LAW, ARE EQUALLY A PART OF THE COLLECTIVE BARGAINING PROCESS ALTHOUGH NOT EXPLICITLY PROVIDED FOR IN THIS PROCESS. COMMON LAW OF THE SHOP IS VIEWED FROM TWO PERSPECTIVES: (1) THE SUM OF INDUSTRIAL RELATIONS PRINCIPLES THAT HAVE EVOLVED FROM NUMEROUS GRIEVANCE SETTLEMENTS AND ARBITRATION AWARDS; AND (2) NARROW DEFINITION BASED ON PAST PRACTICES IN A PARTICULAR BARGAINING UNIT OR UNITS. ARGUMENTS IN FAVOR OF OR AGAINST RELIANCE ON PAST PRACTICES IN THE INTERPRETATION AND APPLICATION OF COLLECTIVE BARGAINING AGREEMENTS HAVE STRESSED CERTAIN RELEVANT OR CONTROLLING FACTORS, INCLUDING WHETHER APPLICABLE CONTRACT PROVISIONS ARE PLAIN, WHETHER ALLEGED PAST PRACTICES ACTUALLY EXIST, WHETHER SUCH PRACTICES HAVE BEEN UNIFORMLY FOLLOWED FOR A SUBSTANTIAL PERIOD, AND WHETHER BOTH PARTIES WERE AWARE OF THE PRACTICES. MOST ARBITRATORS ACCEPT THE PROPOSITION THAT FORM IS UNIMPORTANT AND RATHER RELY ON SUBSTANCE. STYLES OF WRITTEN OPINIONS ARE CONSIDERED. SIX TYPES OF JUDICIAL OPINIONS ARE DISTINGUISHED: MAGISTERIAL OR IMPERATIVE, LACONIC OR SENTENTIOUS, CONVERSATIONAL OR HOMELY, REFINED OR ARTIFICIAL, DEMONSTRATIVE OR PERSUASIVE, AND TONSORIAL OR AGGLUTINATIVE. ARBITRATORS DO NOT CONFINE THEIR STYLE EXCLUSIVELY TO ONE OF THESE SIX CATEGORIES. THEY FREQUENTLY ADOPT A MAGISTERIAL TONE IN DISPOSING OF THE QUESTION ABOUT WHETHER PAST PRACTICES CAN MODIFY THE PLAIN MEANING OF CONTRACT PROVISIONS. IT IS CONCLUDED THAT ARBITRATION DECISIONS BASED ON COMMON LAW OF THE SHOP ARE NOT EFFICACIOUS IN INDUSTRIAL LABOR RELATIONS. (DEP)