Is Labor Arbitration Lawless?

Labor arbitration is often viewed as a more peaceful, productive, and private alternative to workplace strikes and violence. On the other hand, statutory laws are intended to protect all workers, and contract law default rules and rules of interpretation often serve a protective role that could be harmful if ignored in this private dispute resolution setting. To provide more insight into how arbitrators decide labor disputes, we utilize our newly crafted data set of hundreds of labor arbitration awards spanning a decade. Unlike prior data sets, our data are more inclusive: they include both published and unpublished awards as well as cases decided by non-AAA arbitrators and industrial boards, enabling a fuller-and thus potentially more credible-study of differing types of labor arbitration. We find-counter to previous research-that the vast majority of awards do not cite to external authority such as statutes, administrative authorities, or case law, or to secondary sources. Yet, our awards provide little evidence that arbitrators explicitly declined to address a statutory issue raised by one of the parties. These findings indicate there is perhaps much more room for labor arbitrators to refer to external authority in their decision- making. Our results also indicate that reference to governing law depends on factors like attorney representation and service provider guidance. If so, our study has potential implications for the structure and desirability of arbitration for labor disputes as well as for other types of arbitration, including employment, consumer, and securities arbitrations. The inherent tension between peaceful, quick, private dispute resolution and the risks of potential lawlessness might be greater for the resolution of statutory claims, and if so, our study has implications for the desirability and structure of the arbitration of such claims. For example, examination of external authority and written reasoning could be required for the binding resolution of statutory claims in labor arbitration. Moreover, our more inclusive study indicates that there remains an inherent tension between peaceful, quick dispute resolution and the risks of potential lawlessness. More broad studies are warranted