Collective Bargaining Agreements without Arbitration Clauses: Does the Finality Doctrine Bar Section 301 Suits?

Abstract

A recent survey of collective bargaining agreements demonstrated that the parties to those agreements provided for a grievance procedure that included an arbitration proceeding in 96% of the cases surveyed. In this overwhelming number of cases, the employee may sue an employer for breach of contract under section 301 of the National Labor Relations Act (the Act), or follow a grievance procedure. In the latter instance, the employee is bound by the arbitration and its reward. The application of the finality doctrine to these cases is clear, fair, and established. This is not true with respect to the remaining four per cent of those agreements in which the procedure does not provide for binding arbitration. The law governing when an employee may sue under section 301 in those situations in which the collective bargaining agreement has not provided for a culminating arbitration is not clear, at times unfair, and certainly not established. In fact, various courts differ significantly over the issue of whether the finality doctrine does or should apply when the grievance procedure does not employ binding arbitration as a form of dispute resolution. If, as several federal courts have held, the employee is bound by the finality doctrine to the grievance procedure as set out in the agreement, then he is barred from litigating the merits of his grievance before a court under section 301 of the Act. If, on the other hand, as the state courts have held, the employee is not bound by the finality doctrine, then it follows that he is not so barred. The Supreme Court has not addressed this issue. This article will review briefly the law applicable to the majority of cases in which the agreements did provide for grievance procedures that employed some form of arbitration. Perhaps more importantly, it will then analyze in greater depth various court decisions that have attempted to resolve the more complex issue: that is, to what extent should the finality doctrine be applied, if at all, to grievance procedures which do not include binding arbitration