Employer's Dilemma - The Implications of Occupational Safety and Health in the Arbitral Process - Conflicting Contractual and Statutory Commands

• NCJ Number: 93493
• Journal: Syracuse Law Review Volume: 34 Issue: 4 Dated: (Fall 1983) Pages: 1067,1105
• Author(s): R M Duran
• Date Published: 1983
• Length: 39 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

An aggrieved employee may bring an action under the Occupational Safety and Health Act (OSH Act) even if the grievance previously had been submitted to final arbitration. There is no comparable recourse for the employer once a safety and health dispute is bound over to the arbitration process.

Abstract

Given the deference the Federal judiciary accords an arbitrator's decision, an employer currently may obtain judicial review of an award only on a showing of fraud, prejudice, lack of jurisdiction, or violation of the law. An employer must also comply with the health and safety regulations promulgated by the Occupational Safety and Health Administration (OSHA) or be subjected to the enforcement procedures of the Act. Arbitrators' awards are virtually nonreviewable; when one conflicts or exceeds an OSHA regulation, the employer is without a viable alternative for relief from the excessive or conflicting contractual and statutory commands. While the arbitrator cannot render a decision that is expressly contrary to the OSH Act, neither does the arbitrator have to perform a cost-benefit or feasibility analysis. To reduce the inequity created by the interplay of the arbitral process and the OSH Act, which gives the employee contractual and statutory forums in which to pursue grievances, the Federal judiciary must also review awards when the request is initiated by the employer. When the employer claims that an arbitrator's award conflicts with or exceeds OSHA standards, the court must not defer to the award; rather, the employer should be allowed to demonstrate that implementation of the award would be technologically or economically infeasible or that compliance would otherwise be impossible. The court should then review the award. Another possible safeguard would be to amend the collective bargaining agreement to restrict the arbitrator and the reviewing court to the expressed OSHA regulation. Over 210 notes accompany the text. (Author summary modified)