Some Thoughts of Gerry McKay

Gerald McKay, one of the leading labor arbitrators in the country, died of a heart attack while diving in Bali on January 27. He was deeply respected by both Labor and Management for his ability to reinforce collective bargaining relationships even though every decision had to disappoint one side or the other. Weinberg, Roger & Rosenfeld attorney Sandra Rae Benson put in words some of the thoughts shared by all of us at the firm. The San Francisco Chronicle posted an obituary which can be found using the following link: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/02/08/BA121HJCLE.DTL

SOME THOUGHTS OF GERRY McKAY
Sandra Rae Benson

For more than 30 years I had the privilege of appearing before Gerry McKay in arbitration and mediation proceedings as an advocate for Unions and workers, and the honor of calling him a friend. He shall be missed and I can truly say we may never see the likes of him again.

When I think of words to describe Gerry, there are too many superlatives to list. But the most prominent are compassionate, humorous, professional, inquisitive, respected and, most prominent, unstintingly fair.

Gerry’s compassion evidenced itself most often when an arbitration involved an individual worker. Those of us who practice in the arbitration field on an almost daily basis – attorneys and arbiters alike – can often become jaded of the process. But Gerry always understood that for the individual worker involved in an arbitration, that proceeding could be the most important event occurring in his or her life. Gerry understood that the proceeding allowed the employee to voice the indignities he or she had suffered at the workplace, allowed the employee to vindicate his or her rights and the outcome of the proceeding could mean the difference between the employee being able to support the his or her family, keep a roof over their heads and food on the table, or poverty. For Gerry, the individual worker was not an afterthought or someone to simply be tolerated during the proceedings. He always treated the worker with dignity and respect and engaged the employee in conversations so that even if he ruled against the employee, the employee felt that he or she “knew” the arbitrator and the ruling was not rendered by just a name on a piece of paper.

While I cannot think of anyone who understood the arbitration process better than Gerry McKay, he was always inquisitive about the process and whether it could be improved upon. He traveled the world, going to Cuba, Europe and Asia, to study how labor disputes were resolved in other cultures. For Gerry, these were not simply curiosity trips but rather he hoped he could incorporate the benefits of these systems into his own practice and avoid the pitfalls of the practice of those systems he felt were inferior.

Similarly, often when there was an important workplace safety question to be resolved, he was not content to rule based solely upon the “cold” testimony of witnesses. Two particular occasions come to mind both dealing with manning questions and safety concerns. In one case dealing with the newspaper industry, when management and labor were bitterly opposed as to the number of employees needed to safely man the pressroom on the midnight shift, Gerry spent two nights in the pressroom observing the workings of the midnight shift to make his own decision as to the number of employees needed for safe operation of the presses. In a second case, when a dispute over the number of employees needed to safely man a dredging barge threatened to shut down an entire jobsite covered by a project labor agreement, Gerry gathered all the participants to an emergency arbitration, took us down to the pier and had us don hard hats so that he could personally observe the workings of the dredging barge to make his determination. These were safety concerns, and Gerry would leave no stone unturned to make sure that safety came first.

Gerry truly knew how to control an arbitration hearing, although he did so with a velvet glove rather than an iron fist. He never suffered the vanity of the “majesty of the judge.” When the proceedings would become heated, which can often be the case during labor arbitrations, Gerry would most often “lower the temperature” with humor, often at his own expense. 

Finally, it has often been said that the collective bargaining relationship is akin to a marriage with the parties being bound together through good times and bad. Gerry understood this fact and whether he was serving as an arbitrator or a mediator, Gerry knew that for a good collective bargaining relationship to last, neither party – management or labor -- could feel that it had been kicked in the teeth or given more than it had received in the bargain. Gerry was a master at crafting resolutions to labor disputes so that both sides felt the resolution was fair. As a result, Gerry was considered the most talented and respected labor mediator in numerous industries throughout the country, being called upon to resolve intractable labor disputes threatening entire industries. He was the “permanent arbitrator” on more than a hundred project labor agreements because of the respect he had garnered for fairness. There is no counting the number of strikes he was able to avoid by his mastery of being able to prevent heated rhetoric from becoming an impasse and thus irreparably destroying the collective bargaining relationship.

He will be missed

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