Iowa City Community School District v. Iowa City Education Ass'n

*146 REYNOLDSON, Chief Justice

(dissenting).

The “floodgates” spectre may subconsciously dictate the decision of an overworked court. Nonetheless, I respectfully dissent from the holding in each of the three divisions in the majority opinion.

I. The majority’s conclusion this issue was arbitrable ignores Iowa statutory law and ultimately is grounded, as is its affirmance of the arbitrator’s ruling, on an indiscriminate reliance on federal decisions that are of little applicability in view of the restrictive and unique provisions of Iowa’s Public Employment Relations Act.

Private sector employers are profit oriented and ordinarily are responsible only to their stockholders. Their employee relationships evolve in the context of balance of power in the private labor marketplace. Federal labor laws, including the Labor-Management Relations Act of 1947, were adopted to equalize the power of competing labor — management forces, with the role of the federal government as that of a counterweight to the overeoncentration of power on one side. 29 U.S.C.A. §§ 1 to 157, Explanation at V (West 1973).

Public employers are not profit oriented but grapple with the duty to deliver vital public services. They are responsible to the voters and to the people, who under our constitution, retain all political power. See Iowa Const, art. I, § 2:

All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.

The federal decisions, of course, do not address this fundamental distinction, but this court recognized it when it approvingly quoted the following passage from Unified School District No. 1 v. Wisconsin Employment Relations Commission, 81 Wis.2d 89, 98-99 , 259 N.W.2d 724, 730 (1977):

There are important economic and policy reasons why the legislature would distinguish between collective bargaining in the public sector and the private sector:

“ ‘. In the private sector, union demands are usually checked by the forces of competition and other market pressures. Negotiators are typically limited by such restraints as the entry of nonunion competitors, the impact of foreign goods, the substitution of capital for higher-priced labor, the shift of operations to lower-cost areas, the contracting out of high-cost operations to other enterprises, the shutdown of unprofitable plants and operations, the redesign of products to meet higher costs, and finally the managerial option to go out of business entirely. Similar limitations are either nonexistent or very much weaker in the public sector. While budgets and corresponding tax levies operate in a general way to check increases in compensation, the connection is remote and scarcely applicable to particular units of groups of strategically located public employees . ... ’ Cox and Bok, Labor Law (7th ed.), pages 970, 971.” quoted in Hortonville Ed. Asso. v. Joint Sch. Dist. No. 1, 66 Wis.2d 469, 485 , 225 N.W.2d 658, 666 (1975), rev’d on other grounds, 426 U.S. 482 , 96 S.Ct. 2308 , 49 L.Ed.2d 1 (1976).

Moreover, governmental employers perform a substantially different role than do private employers, and there are different reasons for according them certain prerogatives. In the private sector, collective bargaining is limited by the need to protect the “core of entrepreneurial control,” particularly power over the deployment of capital. If resources are to be employed efficiently in a market economy, capital must be mobile and responsive to market forces. ...

... In the public sector, the principal limit on the scope of collective bargaining is concern for the integrity of political processes.

Charles City Community School District v. Public Employment Relations Board, 275 N.W.2d 766, 770-71 (Iowa 1979).

*147 The distinction the majority ignores has had the attention of commentators who find the “judicial hands-off” doctrine of the federal decisions inadequate to meet public sector requirements:

In the public sector, however, labor relations problems and their solutions do not easily fit into the private sector mold. This is partly because each state is master of its own public sector labor relations policy and national uniformity is impossible. In addition, questions of public policy in the public sector are much broader than the private.

Toole, Judicial Activism in Public Sector Grievance Arbitration: A Study of Recent Developments, 33 ArbJ., Sept. 1978 at 6.

In the Public Employment Relations Act, Iowa’s citizens exercised their constitutionally retained political power through their legislature and made sure they retained that power, together with the right to alter it “at all times.” Iowa Const, art. I, § 2. In Iowa Code section 20.7 (“Public employer rights”), they plainly confined certain duties to the hands of those public employers they could hold responsible, directly or indirectly, at the polls. Thus section 20.7 relevantly provides:

Public employers shall have ... the exclusive ... duty ... to:

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3. Suspend or discharge public employees for proper cause.

(Emphasis added.) The word “exclusive” is derived from “ex” (out) and “claudere” (to shut), and precludes the concept of coexistence. In its ordinary sense it means possessed to the exclusion of others; debarred from participation or enjoyment; not including, admitting, or pertaining to any other. City of Nevada v. Bastow, 328 S.W.2d 45, 47 (Mo.App.1959); 33 C.J.S. Exclusive at 112 (1942). In its race to adopt federal ease law to control Iowa public sector labor relations, the majority fails to appreciate the significance of section 20.7, and the fact that it has no counterpart in the federal statutes. City of Fort Dodge v. Iowa Public Employment Relations Board, 275 N.W.2d 393, 395 (Iowa 1979).

To insure that its intention in section 20.7 would not be ignored, the legislature added subsection 20.17(6):

No collective bargaining agreement or arbitrators’ decision shall be valid or enforceable if its implementation ... would substantially impair or limit the performance of any statutory duty by the public employer.

(Emphasis added.)

It seems plain enough that the public employer could not retain the section 20.7 “exclusive” duty to suspend or discharge public employees if it were permitted to dicker this duty away for the term of a collective bargaining agreement — perhaps for years — and then to surrender that decision to an arbitrator over whom the public has no power.

The public employer’s exclusive duty to discipline by suspension or discharge clearly would encompass lesser discipline such as withholding a pay increase. The reserved contractual right of the school district “to withhold salary increases for unsatisfactory performance” is nothing more than a recognition of this concept, and in light of section 20.7, it is an unnecessary reservation of the board’s disciplinary duty. That section is, of course, an integral part of this bargaining agreement by statute, section 20.28, and by our case law. See, e.g., State ex rel. Turner v. Koscot Interplanetary, Inc., 191 N.W.2d 624, 630 (Iowa 1971); Cornick v. Southwest Iowa Broadcasting Co., 252 Iowa 653, 656 , 107 N.W.2d 920, 921 (1961) (“[Ejxisting statutes and the settled law of the land are a part of every contract, and must be read into it as though it were specifically referred to therein.”).

To hold that the board had the power to leave the disciplinary duty imposed exclusively upon it to the unbridled discretion of an arbitrator would violate the obvious legislative intent in Iowa Code section 20.7 and subsection 20.17(6). To hold that a public employer may delegate the subsection 20.7(3) “just cause” (in this case, “un *148 satisfactory performance”) determination to the final decision of an arbitrator who is totally unresponsible to the public is a similar emasculation of the exclusivity concept undergirding section 20.7. “Just as a contractual provision to directly violate the law is void, a contractual provision conferring upon a third party the power to interpret the contract in such a manner that a violation will occur is also void.” Wisconsin Employment Relations Commission v. Teamsters Local No. 563, 75 Wis.2d 602, 612-13 , 250 N.W.2d 696, 701 (1977). It is unfortunate that the majority brushes aside consideration of Iowa’s Constitution and statutes, and the protection of the public’s right to control and secure delivery of indispensable and crucial government services. It is even more unfortunate that it addresses these issues with the principles and standards that would apply in an ordinary labor dispute involving, for example, Metz Baking Company or Armour Pack.

This case does not require us to decide what recourse an employee would have if dissatisfied with a public employer’s “just cause” determination. Most city employees have recourse to the civil service commission, Iowa Code section 400.27, followed by de novo hearing in the trial court and de novo appellate review. See Sieg v. Civil Service Commission, 342 N.W.2d 824, 827-28 (Iowa 1983). It is anomalous, if not without equal protection implications, to hold other public employers and employees are without recourse to the courts.

I would hold, under Iowa Code subsection 20.17(6), that neither this collective bargaining agreement as construed by district court nor the arbitrator’s decision is valid and enforceable because each would “substantially impair or limit” this board in “the performance of [its] statutory duty” under subsection 20.7(3).

II. Assuming without conceding the applicability of the federal case law adopted in Sergeant Bluff-Luton Education Association v. Sergeant Bluff-Luton Community School District, 282 N.W.2d 144 (Iowa 1979), and transferred there to the Iowa public sector despite its base in different labor relations statutes, the arbitrator’s award nonetheless did not “draw its essence” from the agreement.

Even under the federal case law

an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.

United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 , 80 S.Ct. 1358, 1361 , 4 L.Ed.2d 1424, 1428 (1960) (emphasis added).

The reviewing court’s role has been characterized as follows:

[T]o determine whether the arbitrator has resolved the grievance by considering the proper sources — “the contract and those circumstances out of which comes the ‘common law of the shop’ ”— but not to determine whether the arbitrator has resolved the grievance correctly.

Jacinto v. Egan, 120 R.I. 907 , 391 A.2d 1173, 1176 (1978) (quoting R. Gorman, Basic Text on Labor Law 585 (1976)); Safeway Stores v. Bakery Workers International Union Local 111, 390 F.2d 79, 82 (5th Cir.1968).

There is nothing in Iowa Code chapter 20 that suggests the special deference the majority accords an arbitrator’s decision. Iowa Code subsection 20.17(6) implies the legislature intended a closer scrutiny, as does our general arbitration act, which provides that in certain circumstances an arbitration award may be vacated by the court where “[sjubstantial evidence on the record as a whole does not support the award.” Iowa Code § 679A.12(l)(f) (1983).

The reason usually cited for this special deference to arbitrators is their special competence. They are able, it is said, to understand industrial relations problems as judges are not. They are *149 familiar with “the common law of the shop.” I suggest that these explanations are, in many cases, about as accurate as the statement that arbitration is an informal and expeditious procedure. There is a measure of truth in them, but not much. Arbitration can be, and sometimes is, informal and expeditious. At other times it is as formal and time-consuming as litigation. Similarly, some arbitrators do have some special insight into the ways of doing things in an industrial plant; but in many other cases they don’t. Clearly an ad hoc arbitrator, who comes in to decide a grievance in a particular shop which he has never seen before and may never see again, has no special knowledge of the “common law” of that shop.

Feller, Arbitration: The Days of Its Glory are Numbered, 2 Indus.Rel.L.J. 97, 98 (1977).

Turning to the factual background of this controversy, Bristol was a social studies teacher in an Iowa City junior high school. Dr. Ferguson was the principal and was found by the arbitrator to be “an especially well-qualified teacher in the very subject-matter involved.” Ferguson evaluated Bristol’s teaching over an extensive period using the exhaustive criteria of an evaluation form employed to evaluate all teachers. Bristol’s teaching performance was not satisfactory in over 76 percent of the areas rated. The exhibits in the record show excessive “teacher talk” and lack of student participation were brought to Bristol’s attention in 1973, 1974, 1975, 1977, 1979 and 1980. The need to eliminate extraneous personal beliefs or unrelated “tangents” in class was discussed in 1977,1978, 1979 and 1980. In 1974, 1975, 1977, 1979 and 1980, Bristol was directed to plan and execute classroom objectives, directions, instructions and assignments. Ferguson brought student and parent complaints to Bristol’s attention in 1976, 1977, 1978 and 1979. In 1979 and 1980 Bristol was repeatedly cautioned about his many classroom absences in violation of school rules. Of twelve documented classroom absences in December 1979, and seven in January 1980, four were for the purpose of getting “coffee water.”

The arbitrator’s decision states:

Dr. Ferguson, the principal, notably made a conscientious and extensive effort to monitor and evaluate the.Griev-ant’s performance. Not only was he cloaked with the managerial responsibility of the principal, but he also is an especially well-qualified teacher in the very subject-matter involved. Therefore, there is lacking any basis for reversal or modification of the District’s actions with respect to the Grievant on the grounds that it was arbitrary and unjustified.

(Emphasis added.) Nonetheless, the arbitrator did reverse the district’s action on the ground of Bristol’s long tenure. Repeated emphasis was placed on this teacher’s long service in the district, the fact his progression was “halted tantalizingly close to the 14th and last rung of the ladder,” and the severe criticism that was coming “on the very threshold of his advancement to the top rung of the scale.” The portion of the arbitrator’s ruling quoted by the majority as holding Bristol’s teaching was satisfactory discloses the arbitrator’s basic rationale: Failure to apply “long-term standards” would render “the principles of teacher tenure ... illusory.”

The arbitrator spent much of his decision discussing a Vermont arbitration, Board of School Commissioners of Rutland (VT) (AAA Case No. 1130-1391-78), the only authority he cites for his decision. He pointed out the grievant in that case “did not adequately prepare his study programs and did not plan his presentations both of which are deficiencies cited repeatedly against the Grievant in the instant case.” Nonetheless, the Vermont arbitrator was quoted as observing that “non-renewal or termination of a teacher after seven years’ service is a matter of utmost severity.” The Vermont decision was further approvingly quoted as applying “[a] fundamental notion of fairness in labor relations ... that a long term employee may not be terminated without at least a fair and bal *150 anced review of his record over the term of his employment." (Emphasis supplied by Iowa arbitrator.)

It is of more than passing interest that the arbitrator’s concern for Bristol's tenure caused him to underscore only this phrase in the entire course of his decision. Of course the “fundamental notion of fairness in labor relations,” applied in Vermont and adopted by this arbitrator — in essence requiring an “averaging out” of the employee’s record over the entire term of his or her employment — is in conflict with the Iowa law of district-teacher employment relations found in our interpretive decisions.

Although this court has raised the principle of fairness in arbitration cases, it has done so only insofar as it relates to “vaguely defined concepts of the particular industry." Sergeant Bluff-Luton Education Association, 282 N.W.2d at 150 (emphasis added); see Enterprise Wheel & Car Corp., 363 U.S. at 596 , 80 S.Ct. at 1360 , 4 L.Ed.2d at 1427-28 . The voluminous record consisting of exhibits and the filings in this case contains no evidence tending to show that longevity is a salient consideration in educational employment or in the past practices of these parties, or raising any claim to that effect. Our prior decisions hold to the contrary.

In Briggs v. Board of Directors, 282 N.W.2d 740, 743 (Iowa 1979), affirming the discharge of an administrator employed fourteen years and discharged for incompetence over a five-year period, we wrote:

It is sufficient here to hold that in the context of teacher fault a “just cause” is one which directly or indirectly significantly and adversely affects what must be the ultimate goal of every school system: high quality education for the district’s students. ... It must include the concept that a school district is not married to mediocrity but may dismiss personnel who are neither performing high quality work nor improving in performance.

This philosophy permeates Iowa’s appellate decisions. See Board of Directors v. Mroz, 295 N.W.2d 447, 449 (Iowa 1980) (quoting Briggs); Board of Education v. Youel, 282 N.W.2d 677 (Iowa 1979) (teacher employed 25 years discharged for improper handling of program); Cook v. Plainfield Community School District, 301 N.W.2d 771, 773 (Iowa Ct.App.1980) (quoting a portion of the above passage from Briggs in rejecting the concept that the prime goal of teacher termination statutes is job security); Fay v. Board of Directors, 298 N.W.2d 345, 348 (Iowa Ct.App.1980) (several years of favorable reports mentioned but assigned no weight in teacher termination case).

Perhaps in private sector labor relations the “fundamental notion of fairness” referred to by the arbitrator might arguably permit balancing an employee’s past satisfactory record against his or her present unsatisfactory performance. For example, the damage created by an employee unsatisfactorily making widgets might be minimized by records of unit production and careful, objective quality control inspections. In the profession of teaching, however, there is a basic overriding unfairness in balancing past satisfactory teaching against present malpractice affecting a new crop of young minds each and every year.

Even under the private sector federal case law the majority opinion adopted in Shenandoah Education Association v. Shenandoah Community School District, 337 N.W.2d 477, 481 (Iowa 1983), when an arbitration decision arrives before the court for enforcement, the court may be required to examine whether it “drew its essence” from the collective bargaining agreement, or merely dispensed the arbitrator’s “own brand of industrial justice.” Although the amorphous “essence” concept permits wide arbitrator discretion, it is not without ultimate parameters. The “considerations of fairness” that may be invoked by the arbitrator are linked to “concepts of the particular industry.” Sergeant-Bluff 282 N.W.2d at 150. The common law underlying the agreement also must be “the common law of a particular industry,” United *151 Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 579 , 80 S.Ct. 1347, 1351-52 , 4 L.Ed.2d 1409, 1415 (1960). In this case the “particular industry” is public school education. The common law of this “industry” in Iowa includes the concept so often articulated in interpreting teacher termination statutes: The focus must be on present performance, not on past tenure.

In this case the arbitrator’s decision turned on a “notion of fairness in labor relations” that not only was foreign to public education in Iowa, but stood the applicable common law of this state on its head. In so doing the arbitrator departed from “the areas marked out for his consideration,” Enterprise Wheel & Car Corp., 363 U.S. at 598, 80 S.Ct. at 1361, 4 L.Ed.2d at 1429, and impermissibly substituted his “own brand of industrial justice.” Id. at 597, 80 S.Ct. at 1361, 4 L.Ed.2d at 1428; Sergeant-Bluff, 282 N.W.2d at 149.

I suggest that the review of an arbitrator’s decision in cases involving a vital, basic, and monopolistic public function— the education of children — requires something more than the total abdication of the judicial function. The implication in the majority’s opinion that this arbitrator’s ruling is ad hoc and will, after all, affect only these parties and only the children of Iowa City has no basis in fact and practice. Arbitration rulings result in a wide-ranging substratum of decisional law that may, as in this case, reverse our own case law, based though it is on the legislature’s statutory intent. Yet, under the majority’s view, these rulings are immune from judicial correction.

This arbitrator’s heavy reliance on a Vermont arbitration proceeding is an example. That an Iowa arbitrator should have access to such a ruling is not surprising: Publishing arbitration awards has become a big business. 1 What is surprising is that no attempt was made to demonstrate that a Vermont decision should have applicability in Iowa. Vermont’s public policy on education and the weight, or lack of weight, given teacher tenure there may differ substantially from Iowa practice.

In the private sector, arbitrators long have employed the practice of citing awards arising not only outside the relevant locality, but also outside the relevant industry. See Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L. Rev. 999, 1020 (1955) (“I am not referring to the use in one enterprise, say United States Steel, of awards made by another arbitrator in another enterprise, say General Motors. Because the publishing business has made arbitration awards generally available, they are being used in this way both by the parties and by arbitrators.”). 2

This extensive practice of cross-industry borrowing ought to make a reviewing court question the extent to which any arbitrator truly relies on “the industrial common law — the practices of the industry and the shop.” Warrior & Gulf Navigation Co., 363 U.S. at 581-82, 80 S.Ct. at 1352, 4 L.Ed.2d at 1417. The more serious problem, however, is that the damage is not confined to a single case.

The majority concedes that “[Mistakes of either, fact or law are among the contingencies the parties assume when they submit a dispute to arbitration.” The mistake of law is multiplied, however, under the majority’s view that arbitrators may proceed unchecked to incorporate each other’s mistakes into an ever-growing body of their own private law. These “mistakes of law” soon will become controlling for the public employer and employees in Iowa.

While I do not concede the private industry scope of review should be applied in arbitration cases arising under Iowa’s Public Employment Relations Act, I believe *152 that even the application of the majority’s standard should produce a different result. This conclusion finds support in cases from other jurisdictions in which arbitrators have been found to be dispensing their “own brand of industrial justice.”

In Sears, Roebuck and Co. v. Teamsters Local Union No. 243, 683 F.2d 154 (6th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1274 , 75 L.Ed.2d 495 (1983), an award was vacated because of the arbitrator’s extra-contractual imposition of a “balancing test” in interpreting a provision allowing the employer to subcontract only if the subcontracted work could be “performed more efficiently and economically outside of the bargaining unit.” Id. at 155. In Caribou Board of Education v. Caribou Teachers Association, 404 A.2d 212 (Me.1979), the arbitrator was interpreting a contract provision requiring the district to provide art and music specialists in the elementary schools. The district unilaterally terminated the kindergarten classroom visits of the music teacher, and the court vacated an arbitrator’s award requiring the district to negotiate before making such personnel changes. The court held that the negotiation requirement had “no basis in” the agreement there being interpreted, id. at 215 . In County of Allegheny v. Allegheny County Prison Employees Independent Union, 476 Pa. 27 , 381 A.2d 849 (1977), the arbitrator reinstated past lunch privileges of the protesting employees, despite contractual silence on the question at issue. The court found the reinstatement was barred by the integration clause of the collective bargaining agreement and concluded that the arbitrator was drawing his award, not from the contract, but from “his conviction of what was fair and reasonable,” id. at 38 , 381 A.2d at 855 .

Finally, in Simpson v. North Collins Central School District, 56 A.D.2d 166, 171-72 , 392 N.Y.S.2d 107, 110 (1977), aff'd, 43 N.Y.2d 976 , 375 N.E.2d 776 , 404 N.Y.S.2d 596 (1978), the arbitrator was interpreting a contract provision allowing the district to discharge its teachers for just cause. The court vacated the arbitrator’s award, holding “that the arbitrator’s imposition of ex post facto procedural standards for the evaluation of the grievants was tantamount to the making of a new contract for the parties, and was therefore in excess of his powers.” In the case before us, this arbitrator’s imposition of an averaged ex post facto multi-year evaluation system for Iowa City’s teachers was similarly in excess of his powers, and it should not be allowed to stand.

I would affirm the decision of the court of appeals on this issue, reverse the district court, and void the arbitrator’s ruling.

III. In addition, I am convinced the arbitrator’s decision in this case should be voided as violating public policy. In construing and applying Iowa Code chapter 20, we have a right to consider the historical and settled public policy of this state “to foster, encourage, and promote the education of its youth.” State v. Bartels, 191 Iowa 1060, 1067-68 , 181 N.W. 508 , 512 (1921), rev’d on other grounds, 262 U.S. 404 , 43 S.Ct. 628 , 67 L.Ed. 1047 (1923).

We address this issue against the backdrop of demand for better secondary education which recently has riveted the attention of educators, politicians and citizens on both the state and national level. At a time when every competent teacher, administrator, parent and concerned citizen is seeking ways to award and retain good teachers and to eliminate poor teachers, it is anomalous indeed for this court to put its stamp of approval on an arbitrator’s decision that not only emasculates our statutes, but also takes a mighty step backwards in its educational implications.

A public policy is manifested in Iowa Code subsection 20.17(6) (“No collective bargaining agreement or arbitrators’ decision shall be valid or enforceable if its implementation ... would substantially impair or limit the performance of any statutory duty by the public employer.”), examined in division I. This statute plainly directs court action where the exclusive duty imposed on the public employer in subsection 20.7(3) is negated. Pertinent here is the following from Board of Education *153 Great Neck Union Free School District v. Areman, 41 N.Y.2d 527, 531, 534 , 362 N.E.2d 943, 946, 948 , 394 N.Y.S.2d 143, 146, 148 (1977):

Different from private matters where freedom to contract is virtually unlimited, public school matters are, from time to time, subject to restrictive policies which reflect governmental interests and public concerns. Boards of education are but representatives of the public interest and the public interest must, certainly at times, bind these representatives and limit or restrict their power to, in turn, bind the public, which they represent.

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In conclusion we repeat that a board of education cannot bargain away its right to inspect teacher personnel files and that a provision in a collective bargaining agreement which might reflect such a bargain is unenforceable as against public policy.

(Citations omitted.)

Another public policy is found in our Iowa Code chapter 279 statutes involving teacher tenure, fleshed out and interpreted by our decisions cited in division II. In those decisions we construed these statutes to define the nuances of “just cause” for termination, and held prior satisfactory performance will not offset present performance that significantly and adversely affects high quality education for a district’s students. Surely the same public policy considerations must apply in the context of a simple disciplinary measure invoked to attract a teacher’s attention to similar deficiencies after repeated admonishments have been ignored. The significant public policy violation here, however, occurred when the arbitrator applied this policy in reverse, excusing present poor performance by the irrelevant fact that the teacher had been long on the scene.

I would void the arbitrator’s ruling as violating the public policy incorporated in Iowa Code subsections 20.7(3) and 20.17(6), and the teacher tenure statutes of Iowa Code chapter 279 as interpreted by our decisions. This necessitates a reversal of the district court decision and an affirmance of the opinion of the court of appeals.

UHLENHOPP, McGIVERIN and SCHULTZ, JJ., join this dissent.

. The Bureau of National Affairs already has published seventy-nine bound volumes of Labor Arbitration Reports, and Commerce Clearing House produces at least two volumes of Labor Arbitration Awards annually.

. For an example of this practice, see AMF Western Tool, Inc., 49 Lab.Arb. (BNA) 718, 723-24 (1967) (Solomon, Arb.). There, the arbitrator cites awards involving five different employers and makes no attempt to define the business or business practices of any.