Arbitration Awards in an Environment of Compulsory Unionization: Is the High Degree of Deference Warranted?

I. INTRODUCTION Advocates of compulsory unionization have long maintained that conditioning continued employment upon union membership is not discriminatory so long as anyone may join the union; a closed shop is justified so long as there is an open union.1 The idea, stripped down to its essentials, is that unions must play fair, whatever obligation there is at the outset for unions to practice non- discriminatory admission practices,2 that obligation grows when unions hold the keys to the workshop.3 Since unions often hold the keys to the courtroom as well,4 they must play fairly when pressing employee grievances. For example, it is well-settled that a union that fails to press black union members' allegations of discrimination runs afoul of both Title VII and § 198 1;5 once the union is exclusively entrusted with filing claims for its members, it must exercise that power fairly.6 Under compulsory unionism, however, the union holds the courthouse keys for both the willingly and unwillingly unionized.7 The judiciary, while occasionally distinguishing between the levels of deference given to union-controlled and individualcontrolled grievance procedures,8 has never used similar rationale to distinguish between the subsets of union-controlled grievance procedures - namely, closed9 and open shops. The distinction drawn in Alexander v. Gardner-Denver Co.10 between individual- and union- entered arbitration agreements provides a workable rationale that could be extended to warrant different treatment of closed- and open-shop arbitration awards. A union's previous arbitration of an employee's racial discrimination claim did not stop the employee from subsequently litigating on his own behalf, because, inter alia, "[i]n arbitration, as in the collectivebargaining process, the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit," and "harmony of interest between the union and the individual employee cannot always be presumed, especially where a claim of racial discrimination is made."11 The same rationale should be applied in the context of arbitration awards - in particular, that in at least some cases of individual arbitration awards agreed upon through unionized arbitration, "the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit," and, further, that "harmony of interest between the union and the individual employee cannot always be presumed."12 Thus, because of the increased likelihood of divergent interests between the individual worker and the union in a closed-shop setting, arbitration awards rendered in a closed shop ought to be viewed with a higher level of scrutiny than they currently receive.13 Specifically, courts ought to view closed-shop labor arbitration awards with a "manifest disregard of the law" standard of review that involves actually verifying that an arbitrator has correctly applied the law. In making that argument, this Comment traces the evolutionary split in case law governing union- based arbitration agreements and union- based arbitration awards. Under current law, a union may only agree to mandatory arbitration on behalf of its members when the waiver of the right to litigate in the collective bargaining agreement ("CBA") is clear and unmistakable. In notable contrast, once a labor arbitrator has rendered an award, a judge views the completed award with substantial deference that involves an extreme unwillingness to overturn labor arbitrators' decisions. By claiming that closed- shop labor arbitration decisions ought to be viewed under a strict "manifest disregard of the law" standard of review, this Comment argues that at least a subset of arbitration decisions should follow the path of arbitration agreements.14 Part II of this Comment explores the divergence between the judiciary's unwillingness to enforce labor arbitration agreements and its willingness to enforce completed labor arbitration awards. …