Philip Baldwin

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This article details the oft-debated issue of how labor arbitrators should reconcile collective bargaining agreements (“CBAs”) with public sources of law, i.e., “external law,” particularly when the plain meaning of a CBA would lead to an arbitration award in contravention of public law. The article traces the origin of the debate back to 1967, when renowned labor arbitrators Robert Howlett and Bernard Meltzer took opposing views on the matter in front of the National Academy of Arbitrators. Although Meltzer’s traditional view, that arbitrators should respect the CBA and ignore the law when the two diverge, may have been the more dominant and reasoned one in 1967, recent developments in the field of labor and employment law—namely a tremendous proliferation of employment law statutes, a shift in Supreme Court jurisprudence, and an increasingly skilled pool of arbitrators—have rendered Meltzer’s stance untenable. This article lays out four guideposts for labor arbitrators who are confronted with this challenging issue, ultimately articulating an approach that allows for measured consideration of external law to an extent that was wholly unorthodox in 1967.