JEKYLL AND HYDE: THE SPLIT PERSONALITIES OF A PUBLIC SECTOR ARBITRATOR

CLARENCE R. DEITSCH

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DOI: 10.2190/PA7H-8ER8-E92B-AQK3

Abstract

This article explores the tension between decisional arbitrational principles and the arbitrator's basic sense of fairness, specifically, the possible conflict between the jurisdiction construction principle, requiring the arbitrator to look to the contract and not to exceed nor to contradict its language when rendering an award, and Arbitrator Daugherty's Test 7 for just cause, requiring that the appropriateness of discipline be determined in light of mitigating or extenuating circumstances--that is, be judged against the backdrop of the seriousness of the infraction and the quality of the employee's service record. It details how some arbitrators have resolved such conflicts and provides some guidance to practitioners confronted by the very sensitive issue of fairness versus strict constructionism.

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