Grievance Arbitration: Issues on the Merits in Discipline, Discharge, and Contract Interpretation.
Grievance procedures with arbitration are now routinely included in almost all private sector labor-management agreements and in most public sector agreements. Workers and unions see these procedures as basic contract guarantees of due process and "justice on the job" through neutral third-party "just cause" judgments on discipline and discharge cases. Management views these procedures essentially as a safety valve appeals system to prevent a buidup of grievances among workers, which could erupt into work stoppages or slowdowns.
Decisions in grievance arbitration cases can build up akind of case law which connects with the labor-management contract, past practice, and public law in a web of rules which govern day-in, day-out labor-management relations in unionized operations.
When you find a book on grievance arbitration by Arnold Zack, a leading arbitration expert, with a forewood by John Dunlop, the Nation's leading industrial relations guru, and a prologue by the president of the American Arbitration Association, Robert Coulson, you should learn a lot about grievance arbitration.
Zack has been an active arbitrator and mediator for the past 30 years. He has made many arbitration decisions and awards. He is on the faculty of the Harvard Trade Union Program and has written eight books on labor relations. As author and educator, he has shaped the development of grievance arbitration in public sector as well as private sector employment.
In his handbook, Zack explains how to understand and win cases in labor arbitration. It is for practitioners, workaday union and management officials, and arbitrators, not for scholars or non- participant observers.
How will arbitrators respond to the various issues presented to them? What evidence is relevant and persuasive? What is the best way to present particular issues? What kind of questions are in the arbitrator's mind? Each chapter contains several single-issue grievance cases which Zack uses to illustrate possible answers to these questions.
Zack addresses management rights in chapter 1, union activities in chapter 2, and discipline and discharge in chapter 3. Additional chapters cover wages and classifications, leaves and other benefits, hours and schedules, holidays and vacations, layoffs, seniority, and promotions.
Finally, in the last chapter of his book, Zack says, "Arbitration is the last step os a complicated and sometimes ardous and exhausting grievance procedure, usually consisting of three or four steps. Arbitration is the failure of the grievance process, not its goal." The three or four steps get four pages of discussion. Ten pages are given to the kinds of grievances that are subject to arbitration, selection of the arbitrator, the role of the arbitrator, specifity of the grievance, rules of evidence, hearing procedures, and making of the arbitrator's decision. This basic material might logically have come at the beginning of the book rather than at the end.
Don't expect to find grievance arbitration set in the broader context of collective bargaining and industrial relations. There is no reporting of statistics on grievances and grievance arbitration, no statistical analysis of the causes or results of grievance arbitration, no discussion of the costs and delays and excessive legalism of much grievance arbitration, no discussion of the potential for "expedited" low-cost arbitration, "grievance mediation," and alternative dispute resolution procedures. There is very little discussion of interaction and possible conflicts of workers' remedies under grievance arbitration and under Federal laws on labor relations, equal employment opportunity, safety and health, and pension protection.
Zack does include in his chapter on union activities a discussion of the union's duty of fair representation. But there is more to say on the relation of worker's rights under labor-management contracts and under Federal and State laws.
What about costs and delays? These affect worker's and unions' perception that the system works fairly. The average per diem fee for arbitrators in 1988 was $400, but the use of lawyers and transcripts and post-hearing lawyers' briefs can raise total arbitration costs for one case to levels which empty the treasuries of small unions.
And what about the caused and results of grievances? There are studies explaining grievance rates and the percentage of grievances going to arbitration. These studies include observations on increased grievance filing and increased use of arbitration as a result of technological change and high-conflict, low-trust labor-management relations. And there is evidence that some workers who have filed grievances and won them suffer retaliation on the job.
Workers and unions and managers all have an interest in the best possible functioning of grievance systems. To the extent a grievance system works well--with due process and both the perception and the reality of "justice on the job"--it will create a better labor-management relations environment, and it will reduce the demands made on the system. Zack's handbook will help unios and managers and arbitrators make the system work better. But there's room for more work on this subject.
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|Publication:||Monthly Labor Review|
|Article Type:||Book Review|
|Date:||Oct 1, 1990|
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