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American Mfg., Warrior & Gulf. Courts must not determine the merits of a claim to be done by arbitrator (per parties’ agreement) courts may not go beyond “arbitrability” by deciding on merits

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American mfg warrior gulf l.jpg
American Mfg., Warrior & Gulf

  • Courts must not determine the merits of a claim

    • to be done by arbitrator (per parties’ agreement)

    • courts may not go beyond “arbitrability” by deciding on merits

    • one question for court: is this a dispute over a matter that the parties have agreed to arbitrate? (is the case arbitrable?; see AT&T Technologies v. Comm. Workers, U.S. Supreme Court, 1986)

      • What did the parties agree to arbitrate?

    • resolve doubts in favor of arbitrability

      • Is it absolutely clear that this is a matter that the parties have agreed will not be subject to the grievance procedure and arbitrated? If not, must arbitrate.

    • In general, matters of arbitrability left to the arbitrator by voluntary action of parties


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Sample Language (from actual agreements)

  • “. . . a grievance is defined as any question, dispute, or disagreement involving an interpretation or application of this Collective Agreement.”

  • “(The arbitrator) shall have no authority to rule upon job descriptions, work assignments, work standards, or personnel requirements”


What is the difference l.jpg

“The contracting out of maintenance work . . . is strictly a function of management not limited in any way by the labor agreement” . . . (District Court opinion, OHH at 610).

“The collective agreement had withdrawn from the grievance procedure ‘matters which are strictly a function of management’ and contracting out fell within that exception” (Court of Appeals opinion, OHH at 610).

What is the difference?


Arbitration is always voluntary l.jpg

Arbitration is always voluntary. strictly a function of management not limited in any way by the labor agreement” . . . (District Court opinion, OHH at 610).

There is no law that requires the parties to arbitrate.


Compare commercial and labor arbitration l.jpg

Commercial Arbitration strictly a function of management not limited in any way by the labor agreement” . . . (District Court opinion, OHH at 610).

a substitute for litigation

associated with a breakdown of a relationship

Labor Arbitration

a substitute for a strike or a lockout

part of a CB process

implies the relationship is working

Part of a “continuing relationship”

Compare Commercial and Labor Arbitration


Concept of a collective agreement l.jpg
Concept of a Collective Agreement strictly a function of management not limited in any way by the labor agreement” . . . (District Court opinion, OHH at 610).

  • Creates a governance system

    • “system of industrial self-government”

    • “ a generalized code to cover a myriad of cases which the draftsmen cannot anticipate”

  • More than a system of rights and obligations


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