The power of unions at The Boston Globe has taken another hit.

Last month, the newspaper's owners cornered its largest union, the Boston Newspaper Guild, into agreeing to $10 million in concessions to save the paper. Now, management has won another key victory in court, this time with the machinists union.

The Globe convinced a federal judge to vacate an arbitrator's decision in an ongoing contract dispute with the International Association of Machinists — a tough feat, according to several employment attorneys. Arbitration decisions, they said, are rarely overturned.

At issue in the Globe case was whether the arbitrator — who had been called upon to help set the terms of a new contract because the two sides were at an impasse — could mandate that the new contract have an interest arbitration clause. Such a clause would basically allow an arbitrator to set the terms of the next contract should a future impasse be reached.

The Globe objected to using an arbitrator to determine future contract terms, arguing that arbitration is not mandatory under federal labor law. The arbitrator countered that the Globe had objected too late and inserted an interest arbitration clause in the new contract.

U.S. District Judge Douglas Woodlock of Massachusetts disagreed with that decision.

On Aug. 5, the judge vacated the arbitrator's decision, stating: "Given that federal labor law prohibits any party from insisting on interest arbitration to the point of impasse, it would be incongruous to allow an interest arbitration provision to be imposed against either party's will through an arbitrator's decision." The judge cited several court decisions that warned against letting arbitrators use an interest arbitration clause "as a means of self-perpetuation."

James Redeker, a partner at Philadelphia's Duane Morris who has represented employers in union matters for nearly 40 years, called the decision "very significant because it refuses the invitation of the union and arbitrator to confuse well-established law." He said that "second-generation" interest arbitration clauses "invite mischief."

According to Redeker, it's generally established that either party can withdraw non-mandatory provisions from the bargaining table at will. He said arbitrators may not keep a non-mandatory item in a renewed agreement over the objection of one party, regardless of when the party objected.

Redeker said these rules are particularly important when the perpetuation of interest arbitration is involved. "Any other result would permit arbitral self-dealing of the worst kind," he said. "Neither party should be caught in that never-ending loop, and it would be contrary to public policy to permit it." . . .

According to court documents, The Boston Globe and its machinists union had an interest arbitration clause in their contract, which meant that if they couldn't agree on terms for a new contract when the old one expired, the union wouldn't strike, the Globe wouldn't lock out the employees, and an arbitrator would be brought in. About halfway through the current arbitration, the Globe decided it didn't want interest arbitration to be in the new contract.

According to court documents, the arbitrator re-imposed the clause because the Globe objected too late: It should have objected in collective bargaining before the arbitration began or at least at the outset of the arbitration. The Globe disagreed, as did the judge. . . .

Reprinted with permission from The National Law Journal, © ALM Media Properties LLC. All rights reserved.