Writing is Reading is Writing: Two Applications of the Parol Evidence Rule to Collective Bargaining Agreements

Thursday, January 1st, 2009 at 12:00 am by Gerald Moody
Gerald Moody, Writing is Reading is Writing: Two Applications of the Parol Evidence Rule to Collective Bargaining Agreements, 2009 Colum. Bus. L. Rev. 326

Collective bargaining agreements are contracts that resist application of traditional contract law. This creates an analytical problem. On the one hand, collective bargaining agreements seem like ordinary contracts. The collective bargaining agreement is a written document that creates enforceable rights and duties between management and the union. Yet collective bargaining agreements have special qualities that make certain contract principles inapplicable. First, there are many heterogeneous parties on both sides of the agreement. Second, unlike ordinary contracts, collective bargaining agreements are often intentionally silent on significant matters. In order to be of a readable length, collective agreements must be written in generalized language that is capable of capturing the myriad relationships between management and labor. Third, bargaining over both the present and future agreements continues after the parties have signed. These differences, inter alia, have generated debate in the federal circuit courts and among commentators about whether to apply traditional rules of contract interpretation to collective bargaining agreements or to create a specialized set of rules. One important question is whether, and to what extent, collective bargaining agreement analysis should extend beyond the four corners of the document in order to determine the mutual intent of the parties. It is critical that judges and arbitrators, each with a unique kind of authority over collective bargaining agreements, use the interpretative method best suited to their distinct interpretive projects. This Note argues that judges deciding procedural arbitrability questions should use a strong parol evidence rule, while arbitrators resolving substantive disputes about collective bargaining agreements should use a weak parol evidence rule. If judges do not use a strong parol evidence rule, they threaten to undermine the benefits of arbitration. If arbitrators do not use a weak parol evidence rule, they risk the same result. The Supreme Court should therefore resolve the split in the federal circuit courts over the appropriate parol evidence standard in order to ensure the success of national labor policy. Part II of this Note describes the current constitutional and statutory regime of collective bargaining agreements and the relationship between arbitral and judicial enforcement. Part III discusses two competing approaches to the parol evidence rule used by arbitrators and judges who interpret and enforce collective bargaining agreements. Part IV concludes by suggesting why judges and arbitrators should use the approach to the parol evidence rule best suited to their distinct interpretive roles.

Author Information

Columbia University Law School, J.D. Candidate 2009.