1. 1 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

2. 2 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”

3. 3 What is the difference? “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 “The collective agreement had withdrawn from the grievance procedure ‘matters which are strictly a function of management’ and contracting out fell within that exception” (Court of Appeals opinion,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).

4. 4 Arbitration is always voluntary. There is no law that requires the parties to arbitrate.

5. 5 Compare Commercial and Labor Arbitration Commercial Arbitration –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”

6. 6 Concept of a Collective Agreement 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