APPENDIX A PROGRAM. National Academy of Arbitrators Twelfth Annual Meeting JANUARY 29-31, 1959 SHERATON CADILLAC HOTEL DETROIT, MICHIGAN

Transcription

1 APPENDIX A PROGRAM National Academy of Arbitrators Twelfth Annual Meeting JANUARY 29-31, 1959 SHERATON CADILLAC HOTEL THURSDAY, JANUARY 29 DETROIT, MICHIGAN 9:00 A.M. Registration Foyer, Founders Room 9:30 A.M. Closed Session (Members Only) Founders Room Introduction of New Members: Bert L. Luskin, Secretary WORKSHOP ON RELATIONS WITH APPOINTING AGENCIES Speaker: Ralph T. Seward, Chairman Special Committee on Liaison with Appointing Agencies Discussants: Father Leo C. Brown Bert L. Luskin Harry H. Platt Israel Ben Scheiber William E. Simkin Saul Wallen 12:15 P.M. Luncheon Crystal Room Speaker: Leonard Woodcock Vice President, United Automobile, Aircraft & Agricultural Implement Workers of America Introduction: David A. Wolff 170

2 APPENDIX A 171 2:30 P.M. IMPARTIAL UMPIRESHIPS THE GENERAL MOTORS-UAW EXPERIENCE Founders Room Presiding: Charles C. Killingsworth Speaker: Gabriel N. Alexander Discussants: Sylvester Garrett, Joseph Shister FRIDAY, JANUARY 30 8:00 A.M. Informal Breakfast for New Members Chairman: G. Allan Dash, Jr. 9:30 A.M. THE IMPACT OF LINCOLN MILLS Founders Room Presiding: Jean T. McKelvey Speakers: Benjamin Aaron On First Looking Into the Lincoln Mills Decision Archibald Cox Reappraisal of the Arbitration Process in the Light of the Lincoln Mills Decision 12:15 P.M. Luncheon Crystal Room Speaker: John S. Bugas, Group Vice President Ford Motor Company Introduction: Ronald W. Haughton 2:30 P.M. Presidential Address Founders Room Speaker: President Harry H. Platt Current Criticisms of Labor Arbitration Presiding: Paul N. Guthrie 3:15 P.M. THE ROLE OF LAW IN ARBITRATION Founders Room PANEL DISCUSSION Chairman: Nathan P. Feinsinger Discussants: Arthur M. Ross, William E. Simkin, Russell A. Smith 6:00 P.M. Reception and Cocktails Grand Ballroom

3 172 ARBITRATION AND THE LAW 7:00 P.M. Annual Dinner Grand Ballroom Presiding: President Harry H. Platt Presentation to American Arbitration Association of Memorial Bust of J. Noble Braden Acceptance by Paul M. Herzog, Executive Vice President, American Arbitration Association Speaker: The Honorable Charles P. Taft SATURDAY, JANUARY 31 10:00 A.M. Closed Session Continued (Members Only) Founders Room SECRETARY'S REPORT Bert L. Luskin TREASURER'S REPORT A. Howard Meyers COMMITTEE REPORTS: Membership Dudley E. Whiting, Chairman Ethics Benjamin Aaron, Chairman Regional Activities G. Allan Dash, Jr., Chairman Research and Education Vernon H. Jensen, Chairman Law and Legislation Russell A. Smith, Chairman Special Committee on Membership Status Abram H. Stockman, Chairman Nominating Paul N. Guthrie, Chairman ELECTION OF OFFICERS

4 APPENDIX B NATIONAL ACADEMY OF ARBITRATORS 1958 OFFICERS HARRY H. PLATT President CHARLES C. KILLINGSWORTH Vice President ARTHUR M. ROSS Vice President ISRAEL BEN SCHEIBER Vice President JOSEPH G. STASHOWER Vice President A. HOWARD MYERS Treasurer BERT L. LUSKIN Secretary BOARD OF GOVERNORS HARRY ABRAHAMS HAROLD W. DAVEY PEARCE DAVIS SYLVESTER GARRETT JOHN PERRY HORLACHER JEAN T. MCKELVEY 1959 OFFICERS BENJAMIN C. ROBERTS PAUL H. SANDERS CARL R. SCHEDLER ABRAM H. STOCKMAN DAVID H. STOWE ROBERT L. STUTZ GEORGE ALLAN DASH, JR President BENJAMIN AARON Vice President CHARLES C. KILLINGSWORTH Vice President ISRAEL BEN SCHEIBER Vice President JOSEPH G. STASHOWER Vice President A. HOWARD MYERS Treasurer BERT L. LUSKIN Secretary BOARD OF GOVERNORS HARRY ABRAHAMS HAROLD W. DAVEY PEARCE DAVIS ROBBEN W. FLEMING RONALD W. HAUGHTON JOHN PERRY HORLACHER JEAN T. MCKELVEY PAUL H. SANDERS LAURENCE E. SEIBEL ARTHUR STARK ABRAM H. STOCKMAN ROBERT L. STUTZ PAST PRESIDENTS RALPH T. SEWARD WILLIAM E. SIMKIN 1950 DAVID L. COLE 1951 DAVID A. WOLFF EDGAR L. WARREN 1953 SAUL WALLEN 1954 AARON HORVITZ 1955 JOHN DAY LARKIN PAUL N. GUTHRIE

5 APPENDIX C REPORT OF COMMITTEE ON LAW AND LEGISLATION January 31, The various legislation committees of the Academy have been concerned for some eight years with the question of legislation affecting labor dispute arbitration. Following is a chronological record of the results: 1951 annual meeting the following resolutions of the committee were adopted: "1. The subject of legislative regulation of labor dispute arbitration is one in which the Academy has an obvious interest. It might seem, then, that the Academy should not hesitate to take a position, not only on the desirability of such legislation, but also on its specific content. In view of the fact, however, that the members of the Academy may be thought to have a personal interest, as arbitrators, in freedom from restriction, except at the instance of the parties who employ them, your Committee believes that any move in the direction of committing the Academy on questions related to such legislation should be approached with great care. The Academy should avoid both precipitous and selfserving opposition and hasty approbation of statutory controls. Your Committee is not yet ready to recommend or suggest an Academy position on the subject, but recommends that it be authorized and directed to continue its examination, and, at the next annual meeting of the Academy, make a recommendation on the question whether the Academy should take a position on the principle of statutory regulation of labor arbitration, and, if so, what that position should be. "2. The detailed provisions of a regulatory statute are important and deserving of critical attention whether or not the Academy shall decide to oppose, approve, or remain silent with respect to such legislation on principle. Your Committee, therefore, recommends that it be authorized and directed to continue its examination of this phase of the subject and, at the next annual meeting of the Academy, make recommendations as to the substance of such legislation, irrespective of the position, if any, which the Academy may take on the principle of statutory regulation. It is suggested that particular attention be given, in the light of the New York experience, to the problem of 174

6 APPENDIX C 175 defining the areas of finality of decision as between arbitrators and courts." annual meeting The committee reported that it had been unable to complete its 1951 assignment. It was directed to continue its work. May 2, 1953 The committee reported a set of basic principles which it recommended in connection with the substance of labor dispute arbitration legislation. This report was never acted upon by the Board of Governors or by the membership of the Academy annual meeting The following resolutions were adopted: "RESOLVED, That the Academy refrain from taking any official position on the question of whether there should or should not be statutory regulation, either at the Federal or State levels, with respect to voluntary labor dispute arbitration. "RESOLVED, That the Academy may consistently refrain from taking an official position on the principle of statutory regulation, while at the same time indicating its judgment as to the desirable content of regulatory statutes." At the same time the committee was directed to make its views known to the Commissioners on Uniform State Laws concerning the content of the draft Uniform Act then under consideration. In August, 1955, the Commissioners adopted a Uniform Act and the House of Delegates of the American Bar Association approved such Act a few days later annual meeting The committee reported its appraisal of the Uniform Act. The general conclusion of the committee was that the draft act had many good features, but was nevertheless subject to serious objections as a statute covering labor dispute arbitration. The following resolution was passed: "At the January, 1955 Annual Meeting it was resolved that the Academy should refrain from taking any official position on the question of whether there should or should not be statutory regulation of voluntary labor dispute arbitration, but that the Academy could, 'consistently with this policy, indicate its judgment as to the desirable content of regulatory statutes. Since then tihe proposed Uniform Arbitration Act, covering both labor dispute and commercial arbitration, has been promulgated. An analysis of this proposed Act by our Legislative Committee and certain of our regional groups shows that it contains certain deficiencies and defects insofar as it would apply to labor dispute arbitration. It is therefore the judgment of the Academy that the widespread adoption of the proposed Act in its present form would be a disservice to labor-management relations. "RESOLVED, therefore, that the Academy oppose the enactment of the proposed Uniform Arbitration Act in its present form insofar as it would apply to labor dispute arbitration;

7 176 ARBITRATION AND THE LAW "RESOLVED, further, that the Board of Governors of the Academy, in consultation with the Academy's Committee on Law and Legislation, prepare a formal statement of the position of the Academy concerning the proposed Uniform Act, such statement to include specific proposals of changes deemed necessary to make the proposed Act acceptable; "RESOLVED, further, that the Board of Governors take appropriate action to make known the position of the Academy on the proposed Uniform Act." Subsequently, in August, 1956, the Uniform Act was amended in certain respects annual meeting The committee reported the reactions of certain of its members with respect to the significance of the amendments of the Uniform Act. Subsequently, the Board of Governors constituted a special committee to consider and report on the Uniform Act as amended. October, 1957 The special committee filed its report, dated September 22, 1957, which included the following recommendations: "1. Despite the amendments to Section 12 of the Uniform Act made in August, 19 $ 6, the Act remains subject to serious criticism insofar as it would apply to labor dispute arbitration. Accordingly, the Academy should continue to oppose the adoption of the Act in its present form. (The Committee's detailed criticisms of the Act are stated in an Appendix to this report.)* "2. Analysis of the Uniform Act indicates that any attempt to cover both commercial and labor dispute arbitration under a single statute would be unwise and impracticable; accordingly, the Academy should not attempt to prepare and propose amendments which would meet legitimate criticisms of the Act insofar as it would apply to labor dispute arbitration. "3. While the Academy should continue to oppose the enactment of the Uniform Act, it should nevertheless recognize that the subject of arbitration legislation is a matter of increasing general interest, and that the Academy has a responsibility to be constructive, rather than simply negative, on this subject. This general interest is manifestly heightened by the decision of June 3, 1957, by the U.S. Supreme Court in Textile Workers Union v. Lincoln Mills, 40 LRRM 2113, holding that agreements to arbitrate grievances are enforceable by the federal courts under Section 301 of the Taft-Hartley Act and that the substantive and other law to be applied is "federal law" (though, by fairly clear implication, not the U.S. Arbitration Act). "4. The Academy should discharge its responsibility by developing, promulgating and proposing a Labor Dispute Arbitration Act, which could be enacted at either federal or state level, and at the federal level * Editor's Note: For the text see THE ARBITRATOR AND THE PARTIES (Washington: BNA Incorporated, 1958), Appendix B, pp

8 APPENDIX C 177 by amendment of the Taft-Hartley Act or otherwise. The Academy's Committee on Law and Legislation, or a special committee, should be given such research and other technical assistance as may be necessary, witihin reasonable limits, to enable it to discharge this task as expeditiously and competently as possible." The Minutes of the meeting of the Board of Governors include the following notation with respect to this report: "... Although the Board approved the recommendations and accepted the report without a resolution of approval, the report and the recommendations will be printed and distributed to the entire membership of the Academy prior to the annual meeting. A resolution was adopted discharging the committee with the thanks of the officers and members of the Board of Governors. The President was thereupon authorized to appoint a special committee charged with the responsibility for implementing the recommendations of the Russell Smith Committee. A fund will be established to cover the necessary costs which will be incurred. The Board of Governors voted to appropriate the sum of $1,000 as an initial contribution to the fund, and the problem of seeking additional funds was to be placed before the Board of Governors at the next meeting in January, 1958." 1958 annual meeting The Minutes of the meeting contain the following: "Bob Howard reported on the Special Committee on Legislation. His report was read and it was suggested that it be mimeographed and distributed to the Membership. He stated that the committee had met on two occasions and had been allocated the sum of $1,000 to carry out its program. It was suggested that a subcommittee be appointed to work on a preliminary draft of an act which would meet the criticisms leveled at the Uniform Arbitration Act. The President stated that Russell Smith, Gabe Alexander and Louis Crane had been appointed as members of the subcommittee of the special committee to develop an act along the lines suggested and recommended by the members of the Special Committee on Legislation. "Howard further reported that only a small portion of the funds allocated to the committee had been expended. It was the intention of the committee to retain a young attorney to do the preliminary basic research required. Among the matters considered by the committee were the following questions: "A. Should the Norris-LaGuardia Act be amended or limited? "B. Should the proposed statute provide for exclusive jurisdiction in the Federal Courts? "C. Should the proposed act serve to amend the U. S. Arbitration Act? "D. Should it permit unions to sue on behalf of employees directly in the courts?

9 178 ARBITRATION AND THE LAW "In view of the fact that the report was a progress report, no formal action by the membership was taken." The Committee on Law and Legislation, appointed for the past year, has considered that it should begin the preparation of a draft labor disputes arbitration act which the Academy might wish to promulgate as expressing the best judgment of the Academy with respect to the content of a statute regulating labor dispute arbitration. The tentative conclusion of the Committee is that, in view of the Lincoln Mills decision (3J3 U.S. 448), such statute should be proposed for enactment as a federal statute. The Committee now has before it for consideration a second draft of such proposed statute. The complexities of this project are considerable, and the Committee has not yet been able to resolve all of the questions involved. Accordingly, the Committee can simply report "progress" at this time. It may be desirable that the preparation of such proposed act be expedited so that, if the opportunity becomes available, the proposal could be considered in the 86th Congress. As a practical matter, this will be possible only if the membership decides to invest the Committee, subject to approval of the result by the Board of Governors, with the authority to proceed to develop the proposed act on behalf of the Academy. The alternative will be simply to direct the Committee, if this is desired, to continue its work and present a draft act for consideration by the membership at the next annual meeting. The Committee makes no recommendation on this matter, but refers the matters to the Board of Governors and to the membership for instructions. An additional question which has been raised is whether, irrespective of the development and promulgation of a federal labor disputes arbitration act by the Academy, the Academy should, on appropriate occasions, seek to be represented as amicus curiae in important instances of litigation in which are involved issues of transcending importance to the labor dispute arbitration process. Such litigation is likely to be increasingly important, especially in the federal courts. The Committee makes no recommendation on this matter, but refers it to the Board of Governors and to the membership for consideration. Respectfully submitted HARRY ABRAHAMS ELMER E. HILPERT GABRIEL ALEXANDER ROBERT L. HOWARD ARCHIBALD COX ROBERT E. MATHEWS LOUIS CRANE MEYER S. RYDER FRANK ELKOURI CLARENCE M. UPDEGRAFF I. ROBERT FEINBERG CARL A. WARNS, JR. NATHAN FEINSINGER BERTRAM F. WILLCOX SYLVESTER GARRETT W. WILLARD WIRTZ CHARLES O. GREGORY RUSSELL A. SMITH, Chairman

10 APPENDIX D RESEARCH AND EDUCATION COMMITTEE REPORT AND RECOMMENDATIONS January 1, 1959 In embarking upon its work, the Research and Education Committee discovered that the duties and responsibilities of the Committee have been self-imposed. Therefore, reference was made to assignments carried out by previous committees and items gleaned from random records of the Committee to provide a list of activities to serve as an initial guide to our program. Comments elicited from the members of the Committee, plus counsel given by the Board of Governors at its meeting in Detroit in April, led to the prosecution of two activities. First, a questionnaire survey of the work of arbitration performed by members of the Academy in the year 1957 and, second, a supplement to the Bibliography of Dispute Settlement by Third Parties. Three other matters were given consideration and it was expected that something would be done with respect to two of these, the first two in the following list: (1) A periodic paper-back publication (not more often than once a year and perhaps biennially) of the most interesting and important arbitration cases of the members of the Academy. (2) A survey of arbitration course offerings at American Universities. (3) A search for ways to implement the training of new arbitrators. The Board of Governors had instructed the Research and Education Committee in 1957 to make a new survey of the arbitration work of members of the Academy, such as the one conducted by the Committee and reported in 1953.* When the question was raised with the Committee in 1958, the consensus was that a new survey should be among the Committee's first activities. The Board of Governors concurred and it was suggested that certain items of information be included in the questionnaire that was to be modeled on the earlier survey. Also, it was suggested that the survey be extended by soliciting the cooperation of various agencies who designate * Editor's Note: This earlier survey has been published in THE PROFESSION OF LABOR ARBITRATION (Washington: BNA Incorporated, 1957), Appendix E, pp

11 180 ARBITRATION AND THE LAW arbitrators to serve on arbitration cases the American Arbitration Association and the various federal and state governmental agencies. It was our desire to send copies of the questionnaire to all persons on the lists of these agencies in 1957, who were not members of the Academy. It was hoped that this would give us a rather complete coverage of all arbitration being done in the United States. The responses of the various agencies were mixed. Some agencies were quite willing to give us the names of arbitrators on their lists in 1957 who were not members of the Academy, or at least to send our questionnaire to the individuals who in turn, would respond anonymously. One agency was reluctant to cooperate and another gave a near refusal. But it was hoped that after the members of the Academy had responded to the questionnaire we could turn again to these agencies and succeed in our request for cooperation. However, as will be seen below, the response from Academy members was disappointing and, under the circumstances, it did not seem proper to try to extend the coverage. The survey, therefore, covered only the members of the Academy. GENERAL REPORT ON THE RESULTS OF THE QUESTIONNAIRE A total of 247 questionnaires was mailed. Inasmuch as only 89 were completed, the returns were disappointing. Responses were received from eight others who explained that they were retired, ill, not active or away on vacation. Hence, there were 97 responses, for a percentage of 39, but only the returns on the 89 questionnaires were tabulated. If the questionnaires that were returned are representative the number would be sufficient to make a reliable sample, but we have no way of knowing the degree of representativeness of the returns submitted. The results, therefore, must be received with this in mind. It should be noted that not all individuals responded to each item in the questionnaire or to all parts of some items. This must be kept in mind also as the tables are read. 1 A few human interest items seem to be clear enough to justify acceptance. First is the horrible fact, probably surprising to no one, that the members of the Academy are middle aged! In ten years more of the arbitrators will be grey and thin-haired than today. Second, if college degrees are a reliable measure, arbitrators are fairly well educated. At least we can say they are highly schooled. Third, most Academy members have been performing arbitration services from five to 20 years, almost half from 10 to 15 years; the crest of the wave thrown up by the National War Labor Board. Fourth, most of the members have been available continuously, although a large number have been unavailable at certain intervals of six months or more. Fifth, government employment and teaching have been the occupations which were the most common spring board to arbitration work and the "War Labor Board Fraternity" still remains as a conspicuous factor. Still other facts may be noted. By far the largest proportion of our arbitration work is in grievance cases and most of these involve single issues 1 The statistical compilations will be found in the tables in Appendix E.

12 APPENDIX D 181 and one person designated as arbitrator, although a fair number of tripartite boards function. Ad hoc designations run ahead of the others, but when cases under umpireships and contract designations are lumped together they approach closely the total of the ad hoc cases. Most of these cases require only one day of hearing. A large part of our membership, one-fourth, does little or no arbitration work. Of course, some members are available only for a limited amount of work. (Perhaps this statistic should be kept in mind by any future Committee which might desire to investigate the problem of training of new arbitrators. Perhaps some attention should be given to the need to increase the activity of present members as well as to train new arbitrators.) Some members appear to have very heavy loads. Contract arbitration cases are few and other types of arbitration, or third party decisions such as union representation, intra- and inter-union issues, and fact-finding, are even less numerous. Seventy-three active umpireships or chairmanships were reported, involving 32 of our members, and 60 designations in contracts were reported, involving approximately 25 of our members. Some of the same persons were reported in each type of activity. The parties appear to do most of the selecting of arbitrators, for designating agencies appear to be utilized in only one-third of the cases. The distribution of arbitration among reporting Academy members is nationwide and conforms to the general patterns of industrialization in the country, but most Academy members would appear to be "stay-athomes" inasmuch as their work is more or less limited to one geographical area. Some members, on the other hand, appear to have a suitcase packed most of the time; perhaps they are those whose arbitration motto is "Have packed suitcase, will travel." THE SUPPLEMENT TO THE BIBLIOGRAPHY OF DISPUTE SETTLEMENT BY THIRD PARTIES Your Committee chairman had sponsored the work which led to the publication of the Bibliography of Dispute Settlement by Third Parties to which the Academy had given some financial support and thereby received copies for each of the members. At the time of publication it had been conceived that periodic supplements would be issued. In it seemed timely to produce a supplement and the committee gave encouragement to it and supported the chairman's request that the Academy support it with a grant of $600 in order to make it possible to hire a graduate assistant during the summer months. The Board of Governors made a grant in this amount to the New York State School of Industrial and Labor Relations which was used to support what was called the National Academy of Arbitrators Assistantship. Consequently an assistant was employed during the summer who worked under the direction of your chairman and Curtis W. Stucki, Assistant Librarian. Stucki has continued to work on the project during the ensuing months to the extent that time has permitted. As of

13 182 ARBITRATION AND THE LAW this date the entries in the bibliography are going through a final editing and a mimeographed supplement in the style of the original publication should be ready for distribution early in A PROPOSED PUBLICATION OF IMPORTANT ARBITRATION CASES The report of the "Special Committee to Consider the Aims and Policies of the Academy," which accompanied the March, 1958 "Newsletter" and the President's letter to the Academy members, contained an item under Roman III which is of interest to the members of the Research and Education Committee. The suggestion that each Academy member write "a report a year on the most interesting arbitration case which he has handled during the year" and that "a compilation of such reports be prepared and distributed each year," led to a survey of opinion within the Research and Education Committee concerning a variation of the idea, namely, the desirability of a periodic publication of selected cases covering important and novel issues in arbitration for use as an educational tool which might be a service of the Academy to the teaching profession. Members of the Committee on Research and Education gave strong support to the idea, although some reservations were made. It was the chairman's intention to give to a sub-committee an assignment to consider the matter in more detail but this was not done. However, to give the members of the Academy a sense of the reactions to such a proposal the following quotations are supplied: "I am enthusiastic about the idea of an occasional publication of arbitration cases decided by members of the Academy. It would be a very useful publication. The Reports now available are in Law Libraries, or other specialized libraries and are really not convenient for students or teachers, to say nothing of others who are not specialists. I urge the fullest exploration of this idea and endorse it strongly." William Haber "I am intrigued with the idea of publishing a book of cases. My feeling is that this should be attempted on a five year basis. As I see it we might ask each member to send us not more than five precedentmaking cases from their experience during the past five years. In order to be of value in teaching I would think the cases would have to be supplemented with considerable information and analysis. This means that in addition to asking the members to supply additional information the committee must be prepared in money and time to do a sizeable editorial job. I think the idea has merit but I would like to see it thoroughly discussed before it is undertaken." Thomas Kennedy "I also like your idea with respect to publication of selected cases covering important or novel issues. I have just begun to think about this subject area a little bit because of some things I hope to do next year and my offhand impression is one of a surprising lack of materials covering important issues in arbitration. The law school journals, for instance, are full of helpful notes about new and controversial decisions

14 APPENDIX D 183 coming down from the courts. It seems to me there is now a sufficient volume of arbitration so that similar notes are justified on important issues in arbitration. If we do anything on this score, I would strongly favor working out a cooperative relationship with one of the services such as BNA." R. W. Fleming "The idea of reporting some important and novel cases for educational purposes is a good one. Would this be by permission of the Company and Union involved or so written up as to not reveal the names of the parties?" W. N. Loucks "... it occurs to me that the thought expressed regarding the possible publication in paper-back form of selected cases seems a most worthwhile and useful project. I know from my own experience when I set up the Labor-Arbitration Course at Hofstra, that the problem of effective training or study material was a serious one, and tie proposed type of publication could have been particularly helpful, particularly if appropriate editing would provide some sort of "shepardizing" aid to tie in a particular case with related precedents." Harry H. Rains "You are a better judge than I am of the value of your proposal for the selection of cases for teaching purposes. It sounds reasonable enough. I should, however, be a little dubious about the possibility of having BNA publish such a work at low cost. Another thing you might consider is that many interesting cases never get published. In fact, three or four really choice ones I have had in the last few years were not published either because one of the parties objected or because the issues were too hot. They might be available after a decent interval and almost certainly would be available if the parties' names were hidden." Irving Bernstein "I have some reservations about the latter since I assume that this is the kind of project which The Bureau of National Affairs Inc. could do just as well, if not better, although perhaps you have something close to this in mind when you mention cooperating with their organization." Frank C. Pierson "I have some question about the desirability of publishing selected cases covering important and novel issues in arbitration, which is one of the suggestions made. In addition to the established arbitration reporting services, several case books covering arbitration issues have been published. Harry Shulman was a co-author of one of these. It is quite probable that other books of this character will be issued in the future." Lloyd H. Bailer "My personal reaction to the proposed project involving some sort of 'Case Book' is that this effort should be directed toward informing the Arbitrators of significant cases rather than toward assisting the academics in securing class materials. It seems to me that it is so difficult to satisfy the individual needs for this latter type of material that it would be next to impossible to do a book which would be helpful in this

15 184 ARBITRATION AND THE LAW direction. In addition I have the impression that there is considerable case material available already." Robert Stutz A PROPOSED SURVEY OF ARBITRATION COURSES OFFERED AT UNIVERSITIES It may be stated that there was little enthusiasm within the Research and Educational Committee for a survey of courses in arbitration being taught at universities. However, one member of the Committee made a qualified offer to make such a survey and it was considered a tentative assignment but was not made final. Hence, no survey was made. VERNON H. JENSEN, Chairman LLOYD H. BAILER WILLIAM N. LOUCKS IRVING BERNSTEIN JEAN T. MCKELVEY G. ALLAN DASH, JR. FRANK C. PIERSON REV. MARK J. FITZGERALD HARRY H. RAINS ROBBEN W. FLEMING HERBERT L. SHERMAN WILLIAM HABER JOSEPH SHISTER FREDERICK H. HARBISON ROBERT L. STUTZ JAMES J. HEALY THOMAS P. WHELAN THOMAS KENNEDY EDWIN E. WITTE

16 APPENDIX E STATISTICAL TABLES BASED ON THE SURVEY OF ARBITRATION WORK OF MEMBERS OF THE ACADEMY IN 1957 TABLE 1. AGE DISTRIBUTION IN OF MEMBERS OF THE NATIONAL ACADEMY OF ARBITRATORS Age Bracket Number Percentage Not given Over 70 None Reported TABLE 2. ACADEMIC DEGREE STATUS IN 1957 OF MEMBERS OF THE NATIONAL ACADEMY OF ARBITRATORS (only highest degree tabulated) Degree Bachelor's Master's * LLB or JD Ph.D. Other None Reported Number Percentage ' Includes MBA and ME as well as MS degrees

17 186 ARBITRATION AND THE LAW TABLE 3. MAJOR PROFESSION OF THE MEMBERS OF THE NATIONAL ACADEMY OF ARBITRATORS OTHER THAN ARBITRATION Profession Number Percentage Law Academic Consultant Other Unreported TABLE 4. TIME SPENT IN MAJOR PROFESSION OTHER THAN ARBITRATION (Only 60 reported) Percentage of Time Number of Persons TABLE 5. NUMBER OF YEARS MEMBERS OF NATIONAL ACADEMY OF ARBI- TRATORS IN 1957 HAVE BEEN ENGAGED IN THE WORK OF ARBITRATION Years Number of Persons Over 25 1 Unreported 3 89 Continuous availability was reported by 5 3 persons The number reporting breaks in availability of six months or more: Once Twice Three times Four times Five or more times Did not report this detail Total 36

18 APPENDIX E 187 TABLE 6. EMPLOYMENT AT THE TIME OF ENTRY INTO ARBITRATION WORK AND THE ORIGINAL DESIGNATING AGENCY Of 86 w'ho responded to the question on employment at the time of entry into arbitration work, the results are as follows: Federal Government 43 N.W.L.B. (36) F.M.C.S. (2) N.M.B. (2) Not specified (3) State Government 7 Teaching 29 Practice of Law 4 Consultants 2 Arbitration Apprenticeship 1 86 Of 84 who revealed the agency which designated the person in the first arbitration case, the results are as follows: Federal Government (agencies not requested) 41 State Government (agencies not requested) 9 American Arbitration Association 13 The Parties 21 TABLE 7. STATISTICS ON GRIEVANCE CASES COMPLETED IN (Differences in totals are due to the fact that some individuals did not report on some items.) Cases reported settled in 1957: Single Issue Cases 2,352 Multiple Issue Cases 400 Total 2,752 Single Arbitrator 2,168 Tri-partite Board 418 Total 2,586 Umpire Designations 898 Contract Designations 320 Ad hoc 1,502 Total 2,720 Transcripts Reported 477 Parties Represented by Counsel Number of Cases Union Counsel 421 Management Counsel 1,046 Total 1,467

19 188 ARBITRATION AND THE LAW Cases by Days of Hearings One day 2,186 Two days 256 Three days 74 Four days 3 5 Five days 8 Six or more days 16 Total 2,575 TABLE 8. DISTRIBUTION OF CASES BY THE NUMBER COMPLETED BY EACH ARBITRATOR Number of Cases Number of Arbitrators Percentage of Arbitrators None Over TABLE 9. CONTRACT ARBITRATION CASES REPORTED SETTLED IN 1957 Total* 63 Single Arbitration 39 Tri-Partite 14 Other specified 4 Unspecified 6 TABLE 10. OTHER TYPES OF ARBITRATION OR THIRD PARTY DECISIONS IN 1957 Representation Issues Intra-Union Disputes 9 0 Inter-Union Disputes Fact-Finding 2 5 F.L.S.A. Board 2 * One person indicated 58 cases but this item in the return was not included in the tabulation because of the strong belief that it was based on an error in filling out the questionnaire. 18

20 APPENDIX E 189 TABLE 11. PERSONS REPORTING UMPIRESHIPS OR IMPARTIAL CHAIRMAN- SHIPS IN 1957 Number of Umpireships or Chairmanships Persons Reporting Number of Umpireships or Chairmanships* Number of Umpireships or Chairmanships Total 32 Total 73 TABLE i:!. PERSONS REPORTING CONTRACT DESIGNATIONS Number Single Person Designations 8 (8) 5 (10) 4 (12) 1 (4) 0 1 (6) Designations Where Two or More Persons Are Designated 8 (8) 2 (4) 1 (3) 0 1 (5) 0 19 (40) 12 (20) TABLE 13. SELECTING OR DESIGNATING AGENCIES INVOLVED IN THE GRIEVANCE CASES ARBITRATED IN 1957 Parties AAA FMCS NRAB State Courts 1, Percentage Total 2, * Two individuals reported 1 inactive umpireship each.

21 190 ARBITRATION AND THE LAW TABLE 14. GEOGRAPHIC AREAS IN WHICH ARBITRATORS INDICATED THEY PERFORMED THEIR WORK IN 1957 (86 responses) Area New England Middle Atlantic East Central West Central Southeastern Southern Southwestern Western Occasional*' Primary' 1 ' Work Work Total" Who Checked Areas Percent of Total Total TABLE 15. EXTENT TO WHICH ARBITRATORS WORKED IN ONE AREA OR MORE IN 1957 (86 responses) Number of Areas Checked Primary Work Occasional Work * Some arbitrators indicated more than one area.

22 APPENDIX F THE LINCOLN MILLS DECISION No OCTOBER TERM, Textile Workers Union of America,"^ On Writ of Certiorari to the United Petitioner, I States Court of Appeals for the V. Fifth Circuit. Lincoln Mills of Alabama. ' [June 3, 1957.] MR. JUSTICE DOUGLAS delivered the opinion of the Court. Petitioner-union entered into a collective bargaining agreement in 1953 with respondent-employer, the agreement to run one year and from year to year thereafter, unless terminated on specified notices. The agreement provided that there would be no strikes or work stoppages and that grievances would be handled pursuant to a specified procedure. The last step in the grievance procedure a step that could be taken by either party was arbitration. This controversy involves several grievances that concern work loads and work assignments. The grievances were processed through the various steps in the grievance procedure and were finally denied by the employer. The union requested arbitration, and the employer refused. Thereupon the union brought this suit in the District Court to compel arbitration. The District Court concluded that it had jurisdiction and ordered the employer to comply with the grievance arbitration provisions of the collective bargaining agreement. The Court of Appeals reversed by a divided vote. 230 F. 2d 81. It held that, although the District Court had jurisdiction to entertain the suit, the court had no authority founded either in federal or state law to grant the relief. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem and the contrariety of views in the courts. 352 U. S The starting point of our inquiry is $ 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U. S. C. 185, which provides: "(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having 191

23 192 ARBITRATION AND THE LAW jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." "(b) Any labor organization which represents employees in an industry affecting commerce as defined in this chapter and any employer whose activities affect commerce as defined in this chapter shall be bound by the acts of its agents. Any such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents in the courts of the United States. Any money judgment against a labor organization in a district court of the United States shall be enforceable only against the organization as an entity and against its assets, and shall not be enforceable against any individual member or his assets." There has been considerable litigation involving ^ 301 and courts have construed it differently. There is one view that (a) merely gives federal district courts jurisdiction in industries affecting commerce, without regard to diversity of citizenship or the amount in controversy. 1 Under that view ^ 301 (a) would not be the source of substantive law; it would neither supply federal law to resolve these controversies nor turn the federal judges to state law for answers to the questions. Other courts the overwhelming number of them hold that 301 (a) is more than jurisdictional 2 that it authorizes federal courts to fashion a body of federal law for die enforcement of these collective bargaining agreements and includes within that federal law specific performance of promises to arbitrate grievances under collective bargaining agreements. Perhaps the leading decision representing that point of view is the one rendered by Judge Wyzanski in Textile Workers Union v. American Thread Co., 113 F. Supp That is our construction of 301 (a), which means that the agreement to arbitrate Editor's Note: See the dissent of Mr. Justice Frankfurter in this case, 353 U.S. 460 (1957). 1 International Ladies Garment Workers Union v. Jay-Ann Co., 228 F. 2d 632 (C. A. 5th Cir.), semble; United Steelworkers v. Galland-Henning Mfg. Co., 241 F. 2d 323, 325 (C. A. 7th Cir.); Mercury Oil Refining Co. v. Oil Workers Union, 187 F. 2d 980, 983 (C. A. 10th Cir.). 2 The following decisions are to the effect that 301 (a) creates substantive rights: Shirley Herman Co. v. International Hod Carriers Union, 182 F.2d 806, 809 (C. A. 2d Cir.); Roik Drilling Union v. Mason & Hanger Co., 217 F. 2d 687, (C. A. 2d Cir.); Signal-Stat. Corp. v. Local 415, 235 F. 2d 298, 300 (C. A. 2d Cir.); Assn. of Westinghou.se Employees v. Westinghouse Electric Corp., 210 F. 2d 623, 625 (C. A. 3d Cir.), affirmed on other grounds, 348 U. S. 437; Textile Workers Union v. Arista Mills, 193 F. 2d 529, 533 (C. A. 4th Cir.); Hamilton Foundry V. International Molders & Foundry Union, 193 F. 2d 209, 215 (C. A. 6th Cir.); American Federation of Labor v. Western Union, 179 F. 2d 535 (C. A. 6th Cir.); Milk & Ice Cream Drivers v. Gillespie Milk Prod. Corp., 203 F. 2d 650, 651 (C. A. 6th Cir.); United Electrical R. & M. Workers v. Oliver Corp., 205 F. 2d 376, (C. A. 8th Cir.); Schatte v. International Alliance, 182 F. 2d 158, 164 (C. A. 9th Cir.).

24 APPENDIX F 193 grievance disputes, contained in this collective bargaining agreement, should be specifically enforced. From the face of the Act it is apparent that 301 (a) and 301 (b) supplement one another. Section 301 (b) makes it possible for a labor organization, representing employees in an industry affecting commerce, to sue and be sued as an entity in the federal courts. Section 301 (b) in other words provides the procedural remedy lacking at common law. Section 301 (a) certainly does something more than that. Plainly, it supplies the basis upon which the federal district courts may take jurisdiction and apply the procedural rule of 301 (b). The question is whether 301 (a) is more than jurisdictional. The legislative history of 301 is somewhat cloudy and confusing. But here are a few shafts of light that illuminate our problem. The bills, as they passed the House and the Senate, contained provisions which would have made the failure to abide by an agreement to arbitrate an unfair labor practice. S. Rep. No. 105, 80th Cong., 1st Sess., pp , 23; H. R. Rep. No. 245, 80th Cong., 1st Sess., p This feature of the law was dropped in Conference. As the Conferences Report stated, "Once parties have made a collective bargaining contract, the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board." H. Conf. Rep. No. 510, 80th Cong., 1st Sess., p. 42. Both the Senate and the House took pains to provide for "the usual processes of the law" by provisions which were the substantial equivalent of 301 (a) in its present form. Both the Senate Report and the House Report indicate a primary concern that unions as well as employees should be bound to collective bargaining contracts. But there was also a broader concern a concern with a procedure for making such agreements enforceable in the courts by either party. At one point the Senate Report, supra, p. 15, states, 3 The Senate bill contained provisions which would have made it an unfair labor practice for either an employer or a union "to violate the terms of a collective-bargaining agreement or the terms of an agreement to submit a labor dispute to arbitration." The Senate Report indicated that these provisions would permit the Board to grant relief in the same instances where suit might be maintained under 301. "While title III of the committee bill treats this subject by giving both parties rights to sue in the United States district court, the committee believes that such action should also be available before an administrative body." The House bill defined the term "bargain collectively" so as to require that, "If an agreement is in effect between the parties providing a procedure for adjusting or settling such disputes, following such procedure." Commenting on this definition in 2 of the House bill, the House Report stated: "When parties have agreed upon a procedure for settling their differences, and the agreement is in effect, they will be required to follow the procedure or be held guilty of an unfair labor practice. Most agreements provide procedures for settling grievances, generally including some form of arbitration as the last step. Consequently this clause will operate in most cases, except those involving the negotiation of new contracts."

25 194 ARBITRATION AND THE LAW "We feel that the aggrieved party should also have a right of action in the Federal courts. Such policy is completely in accord with the purpose of the Wagner Act which the Supreme Court declared was 'to compel employers to bargain collectively with their employees to the end that an employment contract, binding on both parties, should be made....' " Congress was also interested in promoting collective bargaining that ended with agreements not to strike. 4 The Senate Report, supra, p. 16 states: "If unions can break agreements with relative impunity, then such agreements do not tend to stabilize industrial relations. The execution of an agreement does not by itself promote industrial peace. The chief advantage which an employer can reasonably expect from a collective labor agreement is assurance of uninterrupted operation during the term of the agreement. Without some effective method of assuring freedom from economic warfare for the term of the agreement, there is little reason why an employer would desire to sign such a contract. "Consequently, to encourage the making of agreements and to promote industrial peace through faithful performance by the parties, collective agreements affecting interstate commerce should be enforceable in the Federal courts. Our amendment would provide for suits by unions as legal entities and against unions as legal entities in the Federal courts in disputes affecting commerce." Thus collective bargaining contracts were made "equally binding and enforceable on both parties." Id., p. 15. As stated in the House Report, supra, p. 6, the new provision "makes labor organizations equally responsible with employers for contract violation and provides for suit by either against the other in the United States district courts." To repeat, the Senate Report, supra, p. 17, summed up the philosophy of 301 as follows: 'Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step. It will promote a higher degree of 'S. Rep. No. 105, 80th Cong., 1st Sess., pp states: "Statutory recognition of the collective agreement as a valid, binding, and enforceable contract is a logical and necessary step. It will promote a higher degree of responsibility upon the parties to such agreements, and will thereby promote industrial peace. "It has been argued that the result of making collective agreements enforceable against unions would be that they would not longer consent to the inclusion of a non-strike clause in a contract. "This argument is not supported by the record in the few States which have enacted their own laws in an effort to secure some measure of union responsibility for breaches of contract. Four States Minnesota, Colorado, Wisconsin, and California have thus far enacted such laws and, so far as can be learned, no-strike clauses have been continued about as before. "In any event, it is certainly a point to be bargained over and any union with the status of 'representative' under the NLRA which has bargained in good faith with an employer should have no reluctance in including a no-strike clause if it intends to live up to the terms of the contract. The improvement that would result in the stability of industrial relations is, of course, obvious."

26 APPENDIX F 195 responsibility upon, the parties to such agreements, and will thereby promote industrial peace." Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike. Viewed in this light, the legislation does more than confer jurisdiction in the Federal courts over labor organizations. It expresses a Federal policy that Federal courts should enforce these agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way. To be sure there is a great medley of ideas reflected in the hearings, reports, and debates on this Act. Yet, to repeat, the entire tenor of the history indicates that the agreement to arbitrate grievance disputes was considered as quid pro quo of a no-strike agreement. And when in the House the debate narrowed to the question whether 301 was more than jurisdictional, it became abundantly clear that the purpose of the section was to provide the necessary legal remedies. Section 302 of the House bill, 5 the substantial equivalent of the present 301, was being described by Mr. Hartley, the sponsor of the bill in the House: "Mr. BARDEN: Mr. Chairman, I take this time for the purpose of asking the Chairman a question, and in asking the question I want it understood that it is intended to make a part of the record that may hereafter be referred to as history of the legislation. "It is my understanding that section 302, the section dealing with equal responsibility under collective bargaining contracts in strike actions and proceedings in district courts contemplates not only the ordinary lawsuits for damages but also such other remedial proceedings, both legal and equitable, as might be appropriate in the circumstances; in other words, proceedings could, for example, be brought by the employers, the labor organizations, or interested individual employees under the Declaratory Judgments Act in order to secure declarations from the Court of legal rights under the contract. "Mr. HARTLEY: The interpretation the gentleman has just given of that section is absolutely correct." 93 Cong. Rec " It seems, therefore, clear to us that Congress adopted a policy which placed sanctions behind agreements to arbitrate grievance disputes, 6 by 5 Section 3O2(a) as it passed the House read as follows: "Any action for or proceeding involving a violation of an agreement between an employer and a labor organization or other representative of employees may be brought by either party in any district court of the United States having jurisdiction of the parties, without regard to the amount in controversy, if such agreement affects commerce, or the court otherwise has jurisdiction of the cause." 6 Employees^ v. Westinghouse Corp., 348 U. S. 437, is quite a different case. There the union sued to recover unpaid wages on behalf of some 4,000 employees. The basic question concerned the standing of the union to sue and recover on those individual employment contracts. The question here concerns the right of the union to enforce the agreement to arbitrate which it has made with the employer.