Grievance Arbitration

1
Grievance Arbitration

• a.k.a. Rights Arbitration

2
Definition and Historical Development

• Grievance or rights arbitration A neutral third
  party is used to apply or interpret the terms of
  an existing agreement
• Authority comes mainly from the parties own
  agreement. They agreed to this process
  voluntarily as a way of avoiding strikes, etc.
  during the course of their agreement
• This institution was developing on its own, but
  WW IIs no-strike environment added a big boost.
  War Labor Board often pushed for its use to avoid
  strikes that might disrupt the war effort

3
Legal Status of Grievance Arbitration Clarified
via Supreme Court Decisions

• Lincoln Mills (1957) Taft-Hartleys Sec. 301
  provides suits for enforcement of labor
  agreements, including injunctions
• Steel Workers Trilogy (1960). Three cases
  involving USWA established policy of judicial
  deferral to arbitration. Principles
• Courts not to review merits of grievance on
  appeal
• Arbitration is the favored mechanism when in
  doubt, courts order its use
• Courts will enforce arbitration awards w/o review
  of merits
• More recent refinements and elaboration on legal
  status (1970s)
• Boys Market Courts may use injunctive powers
  to stop strikes that violate no-strike clauses,
  despite Norris-LaGuardia (Federal Anti-Injunction
  Act of 1932)
• Buffalo Forge Injunctive powers can be used to
  halt strikes only where its clear the union
  agreed to arbitrate the dispute
• Misco Notable in halting trend toward erosion
  of judicial deferral policy

4
Some Implications of Legal Rulings

• Federal authority backs a private decision-making
  process wherein courts give great deference to
  arbitration
• Arbitration and no-strike clauses read together
  to determine what the parties agreed to arbitrate
  and what they agreed to leave outside the
  no-strike clause. In effect, courts affirmed and
  strengthened the quid pro quo notion relating GPs
  and arbitration with no-strike clauses
• Labor injunctions return, but in a limited form.
  In accomodating N-L, courts noted v. different
  circumstances
• Norris-LaGuardia situation Court power used to
  squash union formation
• Arbitration cases Court power makes parties
  honor their agreements
• NLRB deferral policy similarly broad, if ULP
  issues heard and resolved consistent with NLRA

5
Arbitration Proceedings and Decisions

• Who? Anybody the parties choose
• Usually chosen ad hoc from AAA or FMCS rosters
• Some parties have permanent arbitrators
  (umpires)
• Key characteristics of arbitration awards
  (decisions)
• Final. Theres usually no appeal on merits
• Binding. Parties must abide by award unless they
  agree to an alternative solution
• Voluntary. The parties agreed to this procedure.
  It wasnt imposed by government
• Form of decisions Usually written, reviewing
  issues, facts, contentions, evidence, contract
  provisions, etc. to provide a thorough rationale
  for the award (conclusion and remedy) that
  convinces both sides the arbitrator is wise and
  fair

6
Arbitration Proceedings and Decisions(continued)

• Arbitration hearings
• Similar to court, many parallels
• Usually less formal (e.g., witnesses may not be
  sworn)
• Arbitrator has discretion on many matters, but
  consistency arises from similar backgrounds
  (mostly law, economics, business), and
  professional guidelines (e.g., AAA, FMCS)
• Major contrasts with courts
• Arbitration recognizes on-going relationships,
  sensitive to parties need to live with the
  decision
• Arbitration recognizes common law of the shop
• Usually quicker, but not always quick
• Draws authority from the parties (bound by the
  four corners of the agreement)

7
Arbitrator Decision Criteria

• First and foremost, the terms of the agreement.
  Some arbitrators favor parole evidence rule --
  no evidence contradicting the written agreement
  may be introduced
• Past practice. Can even override written
  contract
• Intent of the parties (e.g., constructive
  discharge)
• Precedents. Not as strictly bound as courts are,
  but following them does enhance predictability,
  and arbitrators will usually give precedents some
  consideration
• De minimus. Trivial matters can be dismissed,
  but note that cases on important principles cant
  be ignored, even if the dollar amount is trivial
• Burden of proof Grievant and union except in
  discipline

8
Arbitration in ActionEmployee Discipline Cases

• Disciplinary actions may be the single largest
  focus of grievances (35). Arbitrator decisions
  shape norms on discipline systems broadly, union
  and nonunion
• Definition Actions taken by ERs against EEs
  for alleged rule violations
• Added significance Ultimate form, discharge, is
  somewhat akin to economic capital punishment,
  for EE
• Large share of cases implies major costs for ER
  and union (7000 or more per case taken through
  arbitration?)
• Also major indirect costs for ER in ineffective
  discipline
• Historical trend in discipline More emphasis on
  human rights, less on property. Also, at-will
  doctrine eroding

9
Principles and Elements of Discipline

• Just cause -- two key elements
• Clear and convincing evidence of violation?
• Penalty appropriate for the offense?
• Legitimate purposes of discipline
• Mainly to correct EE behavior
• But also to maintain respect, convey the rules,
  promote efficiency, and identify unacceptable
  behavior
• Progression of penalties supports corrective aim
• Nature of the rules -- what should it be?
• Clear and reasonable, with consequences of
  violations indicated
• Are they known to the EE?
• Price lists help convey nature and penalties

10
Price List With Progressive Discipline
11
Evidence and Degree of Proof

• Evidence requirements usually less strict than
  courts
• Hearsay, entrapment may be allowed
• Tougher standards for cases with serious charges
  (e.g., theft)
• Conflicting testimony
• As in court, truth has to be assessed under
  uncertainty
• One general rule Who stands to gain the most by
  lying? Other things equal, odds say that person
  is (usually favors management)
• Parole evidence rule noted earlier (some
  arbitrators). The contract is the final word.
  Contradictory evidence not allowed. Change the
  contract next negotiation
• Standard of proof Usually the weight of the
  evidence (or preponderance of the evidence).
  Not beyond a doubt

12
Is the Penalty Appropriate?

• Reasonableness (e.g., discharge for chewing gum?)
• Past practice. Is there consistency?
• Mitigating circumstances. Most common reason for
  reducing or setting aside a penalty
• Management contributed to a problem (e.g., poor
  training)
• Good work record and/or disciplinary history
• Improbable circumstances unlikely to reoccur
• Union official role deserves extra slack in
  some cases
• Due process issues
• Written notice and opportunity to be heard
• No double jeopardy (being tried twice) or
  escalating penalties, but initial action may be
  conditional (pending further investigation)
• Right to union representation if discipline is
  likely

13
Significance and Prevalence of Grievance
Procedures and Grievance Arbitration

• Significance
• Upward communication in a top-down environment
• Grievances are often spurs to organizing and
  important for union day-to-day roles
• Costly to management (and union), but also
  important in encouraging consistency, fairness,
  and forethought
• An alternative to strikes and other costly
  conflict
• A system of industrial jurisprudence
• A key voice institution. Is exit more
  efficient?
• How prevalent are GPs with arbitration?
• About 99 of CB contracts include GP, and 97 of
  these include arbitration (75 in public sector
  due to Civil Service alternative)
• Nonunion sector Growing use, but arbitration is
  still rare

14
Appraisals of GP/Arbitration Systems

• Generally regarded as working well in terms of
  protecting individual EE rights and providing a
  strike alternative
• Problems and criticisms
• Creeping legalism, formalism, and slower
  resolution. Various experiments on-going to
  recapture its earlier advantages
• Limited availability as unions decline
• Horse trading and other phenomena can weaken
  value in protecting individual rights
• Management Limits discretion and interferes
  with efficiency
• Unions
• Weakens member support by reducing member
  involvement (via strikes, etc.) -- not a
  mainstream view?
• Processes sometimes abused by ERs to weaken
  unions (financially)