Employee Rights and Employment Policy Journal

Incorporating Human Rights Principles into U.S. Labor Arbitration: A Proposal for Fundamental Change

By
James A. Gross

Abstract

The unique approach of this article consists in the use of international human rights principles as sandards to judge arbitral determinations of the sources of worker and employer rights. It addresses another neglected subject by identifying the values underlying those determinations and assessing the influences of those values on arbitral decision-making, including the influence of values underlying various external laws, the U.S. Constitution, and human rights standards. In addition, this article identifies and discusses the consequences of applying human rights standards to safety and health cases, rather than current "balancing tests" used by U.S. labor arbitrators. The discussion and analysis set forth in this article will also provide a doctrinal basis for change as well as gauges for determining where change is needed.

The article begins with a discussion of arbitral perceptions of the sources of worker and employer rights, contrasting the philosophical foundations of traditional and non-traditional arbitral views. The values underlying those conceptions of workplace rights are then discussed as are the concepts of human rights and worker rights as human rights. The discussion then shifts to the consequences of using human rights standards to decide health and safety cases. The concluding section of the article addresses the need for change, particularly the need to incorporate human rights principles into U.S. labor arbitration, observations about how change can be accomplished, and recommendations for future research.