dissenting:
I dissent from the majority opinion because the circuit court was correct in holding that the Coal Mine Health & Safety Board of Appeals had no jurisdiction in the present case because Mr. Davis’ claim had been fully and fairly litigated through the arbitration mechanism provided by the bargained-for wage agreement, the terms of which were fully in accord with the Mine Safety Act.
Respondent employer’s collective bargaining agreement with petitioner Davis’ union authorized the arbitration of any grievance that arose from the interpretation or application of the agreement’s terms. One section of the wage agreement specifically provides a mechanism for removal of safety committeemen. See Art. Ill, § d of the National Bituminous Coal Wage Agreement of 1981. Mr. Davis’ grievance was submitted to arbitration and the arbitrator determined that Mr. Davis’ safety demand was arbitrary and capricious, as it was contrary to the findings of the mine inspectors and unsupported by objective evidence. There was no evidence offered that the employer had retaliated against Mr. Davis because of his participation in safety enforcement. The majority opinion offers no evidence that there was anything wrong with the arbitration process or any reason for the arbitrator’s decision to be vacated except for a vague appeal to “public policy.”
In Paperworkers v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987), the U.S. Supreme Court strongly reaffirmed the principle that courts may not overturn labor arbitration awards on public policy grounds unless the public policy invoked is “well defined and dominant” under existing law. The Supreme Court in Paperworkers made clear that courts play only a limited role when asked to review the decision of an arbitrator:
The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. *46Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator’s judgment, when it was his judgment and all that it connotes that was bargained for.
The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. [Emphasis added]
Paperworkers, supra, at 36-37, 108 S.Ct. at 370, citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403; see also, AT & T Technologies, Inc. v. Communication Workers, 475 U.S. 643, 649-650, 106 S.Ct. 1415, 1418-1419, 89 L.Ed.2d 648 (1986).
The reasons for insulating arbitral decisions from judicial review are grounded in the federal statutes regulating labor-management relations. These statutes reflect a decided preference for private settlement of labor disputes without the intervention of government. The Labor Management Relations Act of 1947, 61 Stat. 153, 29 U.S.C. § 173(d) provides that “final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement.” The courts have jurisdiction to enforce collective bargaining contracts; but where the contract provides grievance and arbitration procedures those procedures must be exhausted and courts must order resort to the private settlement mechanisms without dealing with the merits of the dispute. As the Paperworks case asserts:
Where it is contemplated that the arbitrator will determine remedies for contract violations that he finds, courts have no authority to disagree with his honest judgment in that respect. If the courts were free to intervene on these grounds, the speedy resolution of grievances by private mechanisms would be greatly undermined. [Emphasis added]
484 U.S. at 38, 108 S.Ct. at 371.
The W.Va. Supreme Court of Appeals in Board of Education v. W. Harley Miller, 160 W.Va. 473, 236 S.E.2d 439 (1977) began enforcing arbitration awards among commercial parties as an alternative to litigation. See also, Clinton Water Association v. Farmers Construction Co., 163 W.Va. 85, 254 S.E.2d 692 (1979); Barber v. Union Carbide, 172 W.Va. 199, 304 S.E.2d 353 (1983); State ex rel. Ranger Fuel Corporation v. Lilly, 165 W.Va. 98, 267 S.E.2d 435 (1980); Baker Mine Service, Inc. v. Nutter, 171 W.Va. 770, 301 S.E.2d 860 (1983); Local Division No. 812 of Clarksburg, W.Va., of the Amalgamated Transit Union v. Central W.Va. Transit Authority, 179 W.Va. 31, 365 S.E.2d 76 (1987). In Harley Miller, we decided that the circuit court erred in not enforcing the arbitrators’ award as “all arbitration provisions in all contracts which indicate that the parties intended to arbitrate their differences rather than litigate them are presumptively binding and specifically enforceable.” 160 W.Va. at 487-488, 236 S.E.2d at 447-448.
Furthermore, in our most recent opinion concerning arbitration, we addressed whether a discharge from employment was covered under the union’s collective bargaining agreement. In Local Division No. 812, supra, we held:
In determining whether or not the parties to a collective bargaining agreement have agreed to submit a particular issue to arbitration, it must be recognized that there is a presumption favoring arbitration, and this presumption may be rebutted only where it can be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.
179 W.Va. at 35, 365 S.E.2d at 80.
Indeed, the majority’s position that the appellant’s rights under W.Va.Code, 22A-1A-20 [1985] are separate from his rights under the collective bargaining agreement contains a germ of formalistic logic. However, in analogous situations courts have almost uniformly held that principles of *47collateral estoppel should be applied. See, for example, Zelle v. Chicago & N. W. R. Co., 242 Minn. 439, 65 N.W.2d 583 (1954); Silva v. Mercier, 33 Cal.2d 704, 204 P.2d 609 (1949); Monte v. Southern Delaware County Authority, 335 F.2d 855 (3d Cir.Pa.1964); Ficek v. Southern Pacific Co., 338 F.2d 655 (9th Cir.Or.1964), cert. denied 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280 (1965); Jones v. Kvistad, 19 Cal.App.3d 836, 97 Cal.Rptr. 100 (1st Dist.1971); General Constr. Co. v. Hering Realty Co., 201 F.Supp. 487 (E.D.S.C.1962) app. dismd. 312 F.2d 538 (4th Cir.S.C.1963); Torano v. Motor Vehicle Accident Indemnification Corp., 19 App.Div.2d 356, 243 N.Y.S.2d 434 (1963), aff'd, 15 N.Y.2d 882, 258 N.Y.S.2d 418, 206 N.E.2d 353 (1965); Sweeney v. Morganroth, 451 F.Supp. 367 (S.D.N.Y.1978); Maidman v. O’Brien, 473 F.Supp. 25 (S.D.N.Y.1979); Orchard Park Teachers Asso. v. Board of Education, 71 A.D.2d 1, 421 N.Y.S.2d 494 (1979); General Tel. Co. v. Communications Workers of America, 648 F.2d 452 (6th Cir. Ohio 1981); Kingsley v. Redevco Corp., 61 N.Y.2d 714, 472 N.Y.S.2d 610, 460 N.E.2d 1095 (1984); Ray Wilson Co. v. Anaheim Memorial Hospital Assn., 166 Cal.App.3d 1081, 213 Cal.Rptr. 62 (2d Dist.1985); Broward County Paraprofessional Asso. v. McComb, 394 So.2d 471 (Fla.App. 4th Dist.1981); Tucker v. General Tel. Co., 50 N.C.App. 112, 272 S.E.2d 911 (1980).
In Syllabus Point 3 of Mellon-Stuart Co. v. Hall, 178 W.Va. 291, 359 S.E.2d 124 (1987), Justice Miller wrote for a unanimous court:
An assessment of three factors is ordinarily made in determining whether res judicata and collateral estoppel may be applied to a hearing body: (1) whether the body acts in a judicial capacity; (2) whether the parties were afforded a full and fair opportunity to litigate the matters in dispute; and (3) whether applying the doctrine is consistent with the express or implied policy in the legislation which created the body.
359 S.E.2d at 126. Clearly, if these three criteria are applied to the present case, the majority should have accorded res judicata effect to the arbitrator’s decision. First, the arbitrator by contract, acted in a judicial capacity. Second, both parties agreed to arbitrate and had a full and fair opportunity to present their factual and legal positions to the arbitrator. Nowhere in the record does the appellant assert that the arbitrator was corrupt; the appellant merely disliked the end result and wanted to do the whole thing again before the Safety Board. Third, holding that the arbitration ruling is binding would be consistent with the express policy of this Court favoring cheap, efficient, and expeditious arbitration over expensive, cumbersome and time consuming litigation. See Board of Education v. W. Harley Miller, supra, and its progeny. Finally, the arbitration proceeding in this case is a duplicate of what occurred before the Board. The parties were identical; the issue to be decided was identical; the evidence was identical; and, the legal standard was identical.
There was no reason to give the appellant another bite at the same apple simply because this court wants mines to be safe. Safety is nowhere an issue in this case. The arbitrator has determined that the appellant abused his prerogatives as a safety committeeman and that his actions proceeded from improper motives: that was the issue to be decided and there is no reason to believe that the Board decided it better than the arbitrator. At some point litigation should cease: litigation, per se, is expensive, vexatious, and generally undesirable. Whenever the system can provide less rather than more litigation without sacrificing fairness, that should be its goal.
I am authorized to say that Justice BROTHERTON joins in this dissent.