Are You Qualified? A Process to Certify Labor Arbitrators as Qualified

• Author: Luke Bittar
• Position: J.D., Georgetown University Law Center (expected May 2022); B.S., University of Nevada, Reno (2019)
• Pages: 731-746

Are You Qualified? A Process to Certify Labor

Arbitrators as Qualified

LUKE BITTAR*

INTRODUCTION

For decades, legal scholars, unions, employers, and individual employees have

attempted to sift through the labor arbitration field’s issues, which include deter-

mining the role of an arbitrator, the extent of finality, the role of courts, and the

checks on arbitrator power. The aim of resolving these issues is to create a robust,

efficient system that lowers costs and increases expediency in a less adversarial

setting than the court system. A critical step in achieving this goal is to determine

who the current arbitrators are and how they got there. The answer to this ques-

tion is slightly unclear as there is no certification program for arbitrators that

exists today. First, this Note will explore the various existing arbitration organiza-

tions and some of the current issues prevalent in the field. Next, this Note will

propose a solution rooted in the creation of a uniform certification program.

Finally, this Note will recommend that the American Arbitration Association

(“AAA”) adopt ABA Model Rule 6.1: Voluntary Pro Bono Publico Service to the

Code of Professional Responsibility for Arbitrators of Labor-Management

Disputes.

I. OVERVIEW AND HISTORY OF LABOR AND EMPLOYMENT ARBITRATION

Labor arbitration clauses are embedded in collective bargaining agreements

between unions and employers.

1

When one party files a grievance and the dispute

remains unresolved, the collective bargaining agreement requires the conflict be

resolved by an arbitrator rather than by the court system.

2

Arbitration also occurs

as a result of individual employment contracts, when one party has entered into a

contract of employment that includes an agreement to arbitrate to solve disputes.

3

* J.D., Georgetown University Law Center (expected May 2022); B.S., University of Nevada, Reno (2019).

© 2021, Luke Bittar.

1. Daniel Roy, Mandatory Arbitration of Statutory Claims in the Union Workplace After Wright v.

Universal Maritime Service Corp., 74 IND. L.J. 1347, 1347–48 (1999).

2. Id. at 1348.

3. Martin H. Malin, James Oldham & Ted St. Antoine, A Brief Overview and Historical Background on

Labor and Employment Arbitration (pt.1), UNIV. OF MO. SCH. OF LAW (Sept. 26, 2015), https://law.missouri.

edu/arbitrationinfo/2015/09/26/the-long-complicated-history-of-arbitration/ [https://perma.cc/DBA8-JVS7]

(last visited Jan. 17, 2021).

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This practice is commonly used as a less costly and more expedient alternative to

the court system.

4

Arbitration in the early eighteenth and nineteenth centuries in several states

was quite robust.

5

According to James Oldham, former President of the National

Academy of Arbitrators, by the late nineteenth century, eighty percent of states

enacted “statutes that either allowed arbitration agreements or awards to be

[enforced] as if they were court judgments.”

6

One of the first significant federal

legislative breakthroughs for the field of arbitration came in the form of the

Federal Arbitration Act of 1925 (“FAA”), which upheld the enforceability of

arbitration agreements as contracts.

7

But, seventy-five years later, in Circuit City

Stores, Inc. v. Saint Clair Adams, the Supreme Court clarified the extent to which

contracts of employment were subject to the FAA.

8

The defendant, Adams,

argued that the FAA did not apply to any contract of employment, given the lan-

guage of Section 1, which stated that the law does not apply “to contracts of

employment of seamen, railroad employees, or any other class of workers

engaged in foreign or interstate commerce.”

9

. The Court held that the FAA’s

exemption was not all-inclusive, but rather, only applied to “contracts of employ-

ment of seamen, railroad employees, or any other class of workers engaged in for-

eign or interstate commerce.”

10

After Circuit City, employment contracts with an

arbitration clause are required to arbitrate unless the employee was “a class of

worker[] engaged in foreign or interstate commerce.”

11

Another significant breakthrough for arbitration began with Section 301 of the

1947 Labor Management Relations Act (“LMRA”), which governs private-sector

agreements.

12

Three cases commonly referred to as the Steelworkers Trilogy

clarified the application of the LMRA as it relates to labor arbitration and estab-

lished its governing principles.

13

The Court’s three central holdings were 1) “that

an employer may not defend against an action to compel arbitration on the ground

that the underlying grievance is frivolous,” 2) “that grievances are presumed to

be arbitrable and parties to a collective bargaining agreement should be com-

pelled to arbitrate unless it can be said with positive assurance that the agreement

4. Id.

5. James Oldham, Presidential Address: Historical Perspectives on the Judicial Enforcement of Arbitration

Agreements 1, 2 (2014).

6. Id. at 4, 9.

7. 9 U.S.C. §§ 1–16 (2012).

8. Circuit City Stores, Inc. v. Saint Clair Adams, 532 U.S. 105, 105 (2001) (A contract of employment is a

contract between an employer and an employee regarding the terms of employment and the various rights and

responsibilities of the parties).

9. Id. at 109.

10. Id. at 128.

11. Id. at 121.

12. See 29 U.S.C. § 185 (1947).

13. See generally Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S 593 (1960); Steelworkers v.

Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); Steelworkers v. American Manufacturing Co., 363 U.S.

564 (1960).

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