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Labor Arbitration and Theology
By Arthur R. Porter, Jr.

"Arbitration is a better system of decision making than strikes. However, references to vague concepts of public interest, fairness, and justice are not likely to prove the point. All organized solutions to human conflict will involve discrepancies, unfairness, and greed, in other words, sin. Recognition of the irony of the human situation would prevent some of the disillusionment that has paralleled the development of new institutions to solve human problems."

CONFLICT is an integral part of a world of individuals and groups with different values while tension, struggle, and disagreement are the inevitable consequences of a changing world. It is not possible to conceive of a modern society of harmony and order without parallel lines of conflict and disorder. Distance in space and time formerly separated many institutions from each other which are now intimately related. Organizations are affected by events taking place thousands of miles away. The location of an industrial plant in Belgium by a Detroit manufacturing firm may cause a conflict over wage policies with the union representing the employees of that firm in Michigan. A policy of the United States government to encourage the development of the Venezuelan oil industry may increase the unemployment of West Virginia coal miners. It is likely that as societies become more complex the relations among the units will develop greater areas of tension. Regions, nation-states, business units, social classes, and professional groups are all increasingly coming into conflicts over goals and means of achieving goals.

This article discusses labor dispute arbitration as a means of resolving industrial conflict and the relationship of Christian theology to arbitration. Labor dispute arbitration is viewed as a technique

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of resolving a social problem, but in the process of resolving problems new difficulties are created.

Strife between companies and unions is only one of the many possible areas of social disagreement. Tensions and struggle, however, are of concern to Christian theology no matter where they occur. The Christian church must be involved in these quarrels and the attempts to resolve conflicts.

I

Disputes between corporations and labor unions obviously can result in the self-destruction of the participants and serious harm to large segments of society. Given the size and complexity of modern problems it is not possible to foresee a complex, industrial world without tensions and serious quarrels. It is necessary, however, to turn conflicts into constructive rather than destructive channels. A continuing harmonious relationship between management and labor is not likely or even desirable, but it is possible to evolve social institutions which will prevent disputes from creating serious injury to the participants or to society.

Arbitration of labor disputes is one of the techniques which has been developed in recent years to control the controversies between management and labor. The conflict is accepted and recognized but it takes the form of attempting to win an arbitration award rather than a strike or lock-out. Several basic theological questions need to be raised and answered in relation to labor arbitration.

1. Is it progress to settle disputes through arbitration?

2. Does society move to a better world when disputes are arbitrated rather than fought out on the picket line?

3. What are the specific relationships between Christian theology and the social institutions of labor arbitration?

II

Arbitration has grown in recent years so that at present some 90 per cent of the collective bargaining contracts in the United States include provision for the settlement by an arbitrator of complaints arising out of an interpretation of the contract. If an employee is discharged for poor workmanship, he probably is able to challenge the dismissal through procedures established in the

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contract. An arbitrator will decide whether or not the discharge was for just cause. Similarly, if an employee feels that he has not been paid the proper amount for holiday work, he may be able to carry a grievance through to arbitration.

It is not likely that conflicts over discharge, proper pay, and similar contentions over the interpretation of rights granted to the company or union by contract will disappear throughout an industrial system. Unusual circumstances of personnel, location, or profitable operation may limit or remove the cause of disputes between management and labor. In the more normal case, however, it is likely that conflicts will occur which may need a labor arbitrator to render a decision.

Historically the United States has not used the processes of arbitration as an important means of settling the terms of new contracts between companies and unions. Mediation and conciliation have been tried but both of these depend on sweet reason rather than on decisions by outsiders. However, within the past few years there has been growing agitation for the use of outsiders, for the most part governmental officials, to resolve new contract issues between companies and unions. This movement has resulted in the pressures for settlement of the 1959 steel dispute by the then Vice President of the United States, the "recommended" terms of settlement of the 1962 East Coast dock strike by a committee headed by a United States Senator, and the attempts to resolve the 1963 railroad automation controversies. It is likely that some sort of intervention in the settlement of important contract disputes will occur in the future. The basic question is: What is the desirable kind of third party intervention? It is the hope of many that the outsider will be brought in by the parties on a voluntary basis rather than through an imposed settlement by a governmental official or board.

There is presumption by the public that the settlement of grievances and even contract issue disputes by use of arbitration is a good thing. Strikes over the grievances of individual workers or over matters such as wage increases are costly. Strikes are often equated with the law of the jungle, while arbitration is termed the rule of law. The repercussions of strikes are such as to call attention to the conflict situations and create the demand that something be done to solve the problems.

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Absence of strikes, however, does not necessarily mean labor peace. A series of nasty, argumentative disputes resulting in arbitration may be as costly to the company, union, and society as a "healthy" strike. Absence of divorce in a marital situation does not prove the existence of a happy marriage. Harmonious relationships are not necessarily aided by using the law of arbitration.

Human conflict whether it be in the form of lock-out, strikes, or arbitration involves the motivation of individuals. The Christian would use the term sin to describe a basis for the conflict. This sin is not removed by church edicts glorifying cooperation and peaceful settlement of industrial disputes. Fewer industrial conflicts resulting in strikes may be a desirable goal, but society should recognize that other problems may be created through the removal of the strike as a useful weapon.

Reinhold Niebuhr has pointed out the importance of irony in American history.¹ This irony is the result of the use of power in human action. Collective bargaining, strikes, labor arbitration, and the peaceful settlement of disputes all involve expressions of power. It is almost impossible to conceive of a situation in which the parties to a collective bargain are equal in all respects. The company or union may have more intelligent representation of its interests, the company or union may be better able to stand a strike over a long period, the company or union may have important elements of the community supporting its position, or the product may be essential for national defense. These and many other factors enter into a series of human relationships involving the institution of a company and the institution of a union. Niebuhr contends that:

. . . Power cannot be wielded without guilt, since it is never transcendent over interest, even when it tries to subject itself to universal standards and places itself under the control of a nascent worldwide community . . . . ²

Self-interest involves guilt; self-interest is the moving force in changes arising out of collective bargaining or in the demand for arbitration; power and interest are united in holy wedlock, through collective bargaining and arbitration; sin is present in the relationship and in the final decision.

¹ The Irony of American History, New York, 1952
² Ibid., p. 37.

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The Civil War was described by Lincoln in 1865 as containing elements of man's sin. The dilemma in the struggle for supremacy in that conflict was expressed in Lincoln's second inaugural:

. . . Both (sides) read the same Bible, and pray to the same God; and each invokes his aid against the other . . . . The prayers of both could not be answered-that of neither has been answered fully . . . . The Almighty has his own purposes . . . . he gives to both North and South this terrible war . . . .

Both parties in a labor dispute may be right and both parties wrong. Sin may be minimized but it can never be taken away from a decision resolving a conflict since there is no way to render a judgment without the expression of the power to carry it out.

The force of self-criticism is one method of rising above the struggle to see a broader perspective. However, neither companies or unions have developed consistent means to support self-criticism. Both institutions by their very nature tend to be uncritical and thus unable to view themselves with a sense of detachment.

Church groups frequently seem to imply that progress will result rather automatically from the adoption of common sense notions. For example, the National Council of Churches a few years ago adopted a set of "Basic Principles Relating to Collective Bargaining" which expressed the need for honesty, truth, and responsibility in words such as the following:

A. There should be a compelling sense of responsibility for the public interest and for what is mutually fair and just.
B. There should be a willingness to bargain collectively and in good faith and to refrain from violence . . . .
F. Precautions should be taken by each side to refrain (from) pressures, the intentions or consequences of which would be a violation of the terms of the contract.³

These and similar statements by church groups and non-church bodies do not recognize that power is needed to carry out a decision in any conflict situation. This power is inevitably corrupted by the self-interest of the persons involved in the decision-making process.

Arbitration is a better system of decision making than strikes. However, references to vague concepts of public interest, fairness,

³ Adopted by the General Board, National Council of Churches of Christ in United States of America, Feb. 27, 1958.

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and justice are not likely to prove the point. All organized solutions to human conflict will involve discrepancies, unfairness, and greed, in other words, sin. Recognition of the irony of the human situation would prevent some of the disillusionment that has paralleled the development of new institutions to solve human problems.

Much of the difficulty which has resulted in the growth of the "new conservatism" in recent years has been the consequence of a naive view of human progress that has been held by many persons. The trade union movement, government agencies, the United Nations, social liberalism, and the like have proved to have feet of clay. The Christian church might prevent much of this reaction if it emphasized continually that no institution is above judgment. All stand in need of redemption.

Labor dispute arbitration creates problems which arise from the nature of man. Man integrates his own self-interest with the good of the whole so that responsibility for the public interest is interpreted in such a way as to benefit the corporation or the union. justice is overlaid with the struggle for survival. Good faith is the basis of "my" decision not that of "my" opponent. Points of view are expressed in terms that are "good," but essentially the basis of action is that of self-interest.

The arbitration process itself may be used as a technique of achieving results which are denied through other channels. For example, if one party has relatively little bargaining strength, the decision may be made to take a large number of issues to arbitration on the grounds that some may be won which otherwise would be lost in the process of bargaining. Or, issues may be sent to arbitration which are essentially pawns to be given up in the hopes of acquiring much larger gains.

Many conflicts in human relations seem simple at first glance. One party is clearly right and the other wrong. But on further analysis the clarity disappears. It is often impossible to determine the provocation applied by the "innocent" to the "guilty." Moreover, each person is part of a structure of society which has frequently encouraged the development of behavior which is later determined to have overstepped the bounds of propriety. Self-interest is stimulated by systems of collective bargaining, and companies and unions are supposed to see that their rights are not vio-

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lated by the behavior of the opposite party. Arbitration may encourage a company or union to support claims which are clearly without merit because self-interest is used to protect and extend rights. Nothing ventured nothing gained. An arbitrator, however, cannot avoid a decision even though he may recognize that the process of arbitration has encouraged the filing of claims which are beyond the bounds of a reasonable interpretation of a contract. Decision making is inevitably involved in sin even though the decision may be a "simple" one.

A more complex problem grows out of the very nature of society. Often there is no good answer to a question; frequently the contrasts are between two solutions both of which are bad to some degree. The choice involves the alternative which is the least repugnant. A voter may not care for either of two candidates for a particular office but that is no necessary excuse for not voting. An arbitration award may involve or perpetuate a social inequity but in many instances there is no alternative. The choice is frequently between two shades of gray and not between black versus white.

III

The following cases illustrate the deeper problems of sin in conflict situations which have resulted in arbitration awards. Details have been rearranged in order to protect the parties involved.

A grievance was filed by the union against W company alleging that the refusal to rehire an employee after an illness violated the provisions of the contract. Testimony at the hearing proved that the employee in question was not able to do the necessary heavy work out of doors in cold, rainy weather. A job was available in the plant but the employee did not have the seniority necessary to claim this work as a right growing out of the contract. Other employees refused to be displaced and moved to outside jobs. The arbitrator ruled that the company was not required to rehire the employee.

The company, the union, the discharged employee, and the other plant workers were all caught in a situation which meant the layoff of a man who was not able to do outside work. The company could not help him; the arbitrator was bound by the contract; and the self-interest of the other employees was such that they were not able to give up their jobs for the disabled worker. No one

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was at fault but all were part of a system which dumped a middle-aged, partially disabled worker onto the economic scrap heap.

The X company discharged a man after a warning and two disciplinary layoffs for unexcused absences. The employee had been absent frequently for excused reasons such as illness. In addition he did not show up for work on several occasions and did not notify the company ahead of time. The arbitrator upheld the discharge under the contract as a reasonable interpretation of dismissal for just cause.

An industrial plant cannot operate on the basis of men showing up for work as they wish. Schedules of operation must be maintained and the flow of materials depends on a regular work force. The company, the arbitrator, the union, the man himself are all involved in a procedure which considers a person as a machine. Collective bargaining, the contract interpretation by the arbitrator, and the entire organization of dispute settlement upheld the discharge. It was not possible for any other procedure to be followed, but the process of arbitration contributed to a system which pays little attention to the needs of an individual.

The Y company agreed with the union in a contract to prohibit foremen from doing production work. A grievance was filed alleging that the foreman did a small job amounting to perhaps one-half hour on a day on which the employee concerned was not scheduled to work. The worker claimed pay for the job he did not do. The arbitrator ruled that the company violated the agreement even though the error was insignificant.

The process of dispute settlement has encouraged the use of self-interest by individual workers and the union. Filing complaints within the terms of the contract is termed policing the agreement. The process of arbitration encourages legalism and standing on rights regardless of the overall relationships between the company and the union.

The Z company was required to make changes in its operational techniques due to advances in technology. The company had recognized two unions as bargaining for different groups of workers. Each union represented employees on distinct job classifications. The technological change resulted in a combination of jobs and a struggle occurred between the two unions to represent the workers in the new jobs. The demands of Job scheduling were such that only one union could represent the workers. The arbi-

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trator awarded the work to union A on the basis of the tasks performed by the union members before and after the change.

The system of exclusive representation forced the arbitrator into a decision based on a logical, neat approach although the award by the arbitrator did not result necessarily in a better ultimate conclusion to the problem.

A ticklish arbitration problem has arisen over the treatment of the seniority lists when two firms merge or consolidate. There are several possible approaches:

1. The lists of the firm purchased are tacked on to the lists of the buyer; this approach means that the oldest employee of the second firm becomes a young worker in terms of the new seniority schedule.
2. The firms may merge the lists in accordance with the relative size of the work force in each firm.
3. A seniority list may be based on strict seniority with all workers of the two firms placed in a common pool.
4. There may be variations on the three previous plans.

Each of the plans creates theoretical and practical difficulties. Self-interest raises its head in each instance. The employees to be benefited from a particular plan are able to rationalize quickly a plan for their benefit which would help all concerned. For example:

A strong well organized corporation with a history of financial and technical strength purchased the assets of a struggling company in the same line of business. The union in the first company took the position that the second group of workers should be placed at the bottom of the seniority list of the newly enlarged firm since the small firm would likely have failed. The arbitrator ruled that the lists should be merged on the basis of seniority, which meant that some of the younger workers in the more prosperous company were laid off.

Again, there was no way of avoiding the damage to individuals and groups in this type of situation. The self-interest of the companies, the two local unions, and maybe even the arbitrator made it impossible to render a disinterested decision.

Power plays a role in the ultimate decision whether the approach is by way of strike, peaceful bargaining, or arbitration. As Niebuhr says:

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. . . No virtuous act is quite as virtuous from the standpoint of our friend or foe as it is from our standpoint.⁴

The use of private arbitration creates difficulties which are of concern to companies, unions, arbitrators, and the general public. Any attempt to establish by law a system of compulsory arbitration to prevent strikes over new contract terms would create additional problems. This article ignores the practical and theoretical problems arising from the role of government and law in a mixed enterprise economy and concentrates on the implications from the use of power by the parties in labor disputes.

Experience has shown that if arbitration is required by law, then companies and unions begin to use the arbitration process to seek gains they would not be able to achieve through collective bargaining. One scholar has stated:

The number of demands with which the parties enter negotiations has probably not increased but compulsory arbitration has made it much more difficult to eliminate the chaff and reduce the dispute to the two or three major issues. Each party now holds on to demands which would quickly be eliminated if free collective bargaining prevailed. After all, the arbitration board, composed of men who are unfamiliar with the industry's and union's problems, may grant these extra demands. Moreover, if the arbitration board rules against one of the parties on a number of minor issues, it may be more inclined to favor it on the major issues in order to appear to be fair.⁵

Even if arbitration boards of experts are used, the parties may lean on the boards for decisions since they may feel they have little to lose. The use of outsiders to decide problems is especially true of the party which has the least power in the bargaining relationship. A virtuous act does not remain virtuous very long when one side or the other sees the opportunity to gain from the process. It is probably often true that the self-interest is unconscious but it is nevertheless present.

All kinds of currents and cross currents are involved in the arbitration process. The progress of a grievance through to arbitration involves power relationships within the union. A member of a

⁴ Op. cit., p. 63.
⁵ Kennedy, Thomas, "The Handling of Emergency Disputes," Proceedings, Industrial Relations Research Association (1949), p. 22. Also, note: Porter, Arthur R., Jr., "Compulsory Arbitration in Indiana," Labor Law Journal, Nov., 1954.

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minority social or political group or clique may have trouble having his grievance processed by the officer hierarchy; or union officers may eagerly seek his grievance in order to get his political support at the time of the next union election. Political problems may arise within the local union, the regional or national office.⁶ The power struggle may encourage the proper settlement of a union member's grievance or it may discourage it. Within the corporation similar power eddies occur. A given department or foreman may be "in" on the promotion ladder and problems from that department are given prompt attention by top management. On the other hand a department or even an entire plant may be relegated to "Siberia" with little concern for its difficulties. The tensions and jockeying for position may be especially evident in the process of the selection of an arbitrator. Each side wishes to find an arbitrator who is unbiased but who will tend to decide the issue in question in their own favor!

The arbitrator may be influenced by power. The implied power of a giant corporation or union may cause the award to be different than if the same issue were presented by powerless groups. Experienced arbitrators are quite aware of the existence of power. It may be occasionally that companies or unions with power are penalized in the decision-making process because arbitrators overcompensate for the power of one side or the other! At times it seems impossible to win; the harder the struggle, the deeper the sinkhole.

IV

The foregoing analysis is not to be taken in any way as an objection to the development of arbitration as a means of solving conflicts between corporations and unions. It is rather to suggest that in the process of creating a technique to solve problems which have flared up in strikes, lock-outs, and industrial sabotage, society has created another institution with other problems which have to be solved. Once these are solved, others will be created, and so on in a never-ending stream.

All progress is temporary at most. An analogy from the field of medicine may be helpful in sharpening the point. The term

⁶ For a good example of the type of political conflict which might have implications for bargaining or arbitration procedures see, Stella Deakins, Appellant v. Local 205, United Auto Workers, 63-1 ARB (Commerce Clearing House), paragraph 8135.

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progress is used frequently in medicine, but when the idea is examined carefully it is clear that what happens is the substitution of one set of problems for another. It is progress to prevent the disease of poliomyelitis, but such progress creates more candidates for heart trouble; cure of heart ailments allows more possible victims for cancer, and so on. The process is never ending. It is not correct to say that medicine has made any progress unless there is an assumption of purpose, which is discussed below. However, even though death is inevitable, a doctor does not think that the art of medicine is a failure although the best that can be done is to postpone death.

Problems are meant for solution even though other perplexities are created in the process. Someone has said that it is a sin to use the techniques of a two year old to solve a problem when a person is twenty-two years old. The solutions of a twenty-two year old will not necessarily be any better than those of a two year old. However, the use of the two-year-old techniques by a twenty-two year old man or woman is an admission of failure.

There is a purpose in the process of resolving conflicts between corporations and unions. This purpose, however, is only seen by faith. Otherwise the maxim of Genesis that man must work forever by the sweat of his brow with no hope of redemption is true. It is a never-ending process of problems-solutions and problems-solutions. There is no hint of progress in the operation of the rational world, only ceaseless change and movement. The Christian may regard the world as showing little rational evidence of progress but still as a world with purpose. The giving of oneself in love to the solution of conflicts that are of concern to mankind provides the purpose. But this view can only come from a faith that God is a God of history who cares for the affairs of men.

Ultimate purpose comes from this concept of God's existence and concern. Otherwise the problems for solution are interesting, stimulating, and even fun to solve but there is no meaning to the whole process. Three-dimensional chess is interesting and stimulating for some people but there is no particular purpose other than the solving of the many intricate patterns. Arbitration and other social problems are similar to an elaborate game unless there is some sense of purpose which, to the Christian, takes its highest form in the sense of commitment to God and service to the Christ.

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Meaning to the struggle can come only if there is a sense of release from the power of sin. All mankind is involved in the exercise of power expressed in the action of groups. The corporation, the union, the government agency, the arbitrator, and the public through its organizations are all gathered into groups for combinations of motives which must include the self-interest of those participating. The tensions that arise out of situations full of human irony can be controlled through an acceptance of forgiveness. The good that we do is never as good as we think it is. The realization of this is a frustrating experience. Even when an individual attempts to compensate for his lack of good, he may do wrong because at that time, perhaps, he should not compensate.

Meaning can come if there is a sense of forgiveness from God. Each person is thus able to start afresh each problem realizing his past sin and the possibility of new sin, but the situation does not bother him. The arbitrator or the government official is able to work on the new problem or on one as old as mankind itself, with zest and enthusiasm.