69 Am. U. L. Rev. 1827 (2020).

* Ariana R. Levinson is a Distinguished Teaching Professor at the University of Louisville Brandeis School of Law.  Erin O’Hara O’Connor is Dean and McKenzie Professor at Florida State University College of Law.  Paige Marta Skiba, PhD, is a Professor of Law at Vanderbilt Law School.  We thank Carlie Malone and Sam Miller for performing the statistical analyses for this article and each student research assistant who worked on this project either coding awards or researching the arbitration literature. We also thank the Law Schools at which we work for funding this research and providing IT support, Steve Ware for providing feedback on an initial draft, and the participants who provided feedback at the Université Paris Nanterre, Law and Economics Workshop, and the faculty workshops at University of Louisville Brandeis School of Law and the University of Cincinnati College of Law.

Should arbitrators consider authority—such as statutes or case law—external to the collective bargaining agreement when deciding labor grievances? Do they rely on such external authority? If so, do they do so in particular circumstances or in certain types of cases? To provide more insight on this often-debated issue, we have amassed a new data set of hundreds of labor arbitration awards spanning a decade. In contrast to previous research, we find that the overwhelming majority of awards do not cite to any external authority (statutes, administrative authorities, case law, or secondary sources). Yet, only a small fraction of awards explicitly decline to address a statutory issue or do not address external authority cited by one of the parties and mentioned in the award. Other significant findings: one or both parties being represented by an attorney in the arbitration hearing correlates with citation to external authority. Instances where arbitrators are drawn from the American Arbitration Association or the Federal Mediation and Conciliation Service rosters result in a greater likelihood of citation to authority than when arbitrators are selected without aid of a service provider. Awards addressing claims asserting a breach of a just-cause provision are more likely than other types of contractual claims to cite to external authority. Our new data set differs from prior data sets in that it includes published and unpublished awards and cases decided by industrial boards, enabling broader study of differing types of labor arbitration.