ARBITRAL FINALITY: THE CURRENT INTERPRETATION OF THE PUBLIC POLICY EXCEPTION

Abstract

Since the decisions in the Trilogy cases were handed down by the Supreme Court on June 23, 1960, the dominant policy of the courts has been to defer to the decision of the arbitrator and uphold the arbitration award. However, there have always been reasons for judicial review of arbitration rewards; and, in some cases, reasons to vacate or overturn an award. This article focuses on the interpretation and status of a rationale often used by the courts when overturning or vacating an arbitration award: the public policy exception. We present the current interpretation of the public policy exception in the unionized segment of the private sector and the historical evolution of the exception, and we focus on strategies for both parties (employers and unions) to either use or defend against the public policy exception. The purposes of the arbitration provision in collective bargaining agreements (CBAs) negotiated by the employer and the union which represents the employees are to preserve labor peace and to provide industrial justice. Typically, the employer’s acceptance of the arbitration clause is considered a quid pro quo for the union’s acceptance of a no-strike clause, that is, the union gives up its right to strike during the period of the contract and the employer agrees to take disputes to arbitration and to abide by the decision made by the jointly selected arbitrator [1, 2]. To preserve these objectives, the dominant policy of the courts has been to