Other models for labor-management dispute resolution: the Wisconsin experiment.
An Umpire arbitration is the most informal process. The parties' collective bargaining agreement suggests that the cases deemed most appropriate for this procedure are "campus, local institution, or work site issues; short-term disciplinary actions [three (3) day or less suspensions without pay]; overtime distribution; and other individual situations mutually as agreed."
The contract provides a time frame within which the parties agree on which cases will be heard in this forum and the time by which the arbitrator will be provided with a pre-hearing statement of each case's facts and issues. The contract states that the arbitrator will normally hear at least eight cases at each session, with each party limited to a five minute presentation plus an opportunity for a one minute rebuttal and/or closing. No witnesses are called, no objections are taken, and there are no briefs or transcripts. The Grievant and a steward, plus a department representative and supervisor, are present at the hearing and can answer questions from the arbitrator. At the end of the day the arbitrator is to render a final and binding decision on each case. That decision is memorialized on a standard form which indicates simply whether the grievance has been upheld, denied, or modified.
In reality, the parties and the arbitrators often do not strictly adhere to this contractually described process. Time lines are more flexible, the number of cases heard in a day can vary widely, and the presentations are more flexible than the contract suggests.
Expedited arbitrations, although also non-precedential, are a bit more formal. The parties' Agreement suggests that cases most appropriate for this procedure are "campus, local institution or work site issues, short-term disciplinary actions [five (5) days or less suspensions without pay], denials of benefits under s. 230.36, Wis. Stats., and other individual situations as mutually agreed."
The contract states that the arbitrator--who receives no advance information--will normally hear at least four cases at each session, and each case is limited to a preliminary introduction, a short reiteration of facts, and a brief oral argument. There are no briefs or transcripts and no more than two witnesses, including the Grievant, may testify per side. Following the hearing the arbitrator has five days within which to render a final and binding bench or written decision for each case. The decision denies, upholds, or modifies the Employer's action, and each decision must be clearly identified as non-precedential.
As with the umpire arbitrations, the parties and the arbitrators often do not strictly adhere to this contractually described expedited arbitration process. Time lines are more flexible, the number of cases heard in a day can vary widely, and the presentations are more flexible than the contract suggests.
After twenty-two years' experience using these special arbitration processes it is appropriate to examine whether the parties' vision has been fulfilled. To that end, advocates who now have had substantial experience using these procedures were polled to determine whether they believe these processes have been successful and whether they support their continued use.
To test the advocates' perceptions, arbitrators prepared a ninety-question survey to which an advocate could respond on a one-to-five scoring system (from strongly disagree to strongly agree). In addition, advocates could elaborate upon their answers and offer additional related observations. All respondents were informed that their survey responses would remain entirely anonymous.
Given both organizations' support of the survey, all eleven union advocates and all nine management advocates to whom it was distributed responded. At the time these twenty respondents had between one to thirty-six years of labor relations experience, with an average of 14.6 years. Responses were not broken down by labor or management, although narrative comments sometimes revealed the perspective from which a respondent was speaking. It would be interesting to know where, if at all, labor and management advocates diverged. Nevertheless survey authors concluded that the advantages of anonymity--both by person and by organization--outweighed more identifying information. Moreover, the survey results--coupled with the advocates' narrative comments--suggest that there is no pronounced "union" or "management" perspective concerning these procedures. Indeed, what emerged was a remarkable consensus. Answers to broad questions indicate overall high user satisfaction with both the umpire arbitration and expedited arbitration processes.
The advocates' quantified responses are included in Attachment B. Narrative comments that reflected a general consensus, or that offered an interesting insight into a particular proposition, are included in the following discussion of the survey results.
The most novel model the parties adopted was the umpire procedure. This procedure, described above and in Attachment A, is notable for the following features: select cases are channeled to the umpire path and a few days before the scheduled hearings the parties provide the Umpire Arbitrator with a statement of the stipulated facts and the documents that underlie the grievance. Hearings typically last thirty minutes, at which time the advocates present their evidence and arguments in abbreviated fashion. Although the procedure does not provide for testimony from the grievant or a management witness, in practice the hearing is flexible enough to permit doing so when appropriate. As discussed below, the advocates are very satisfied with the current process, although some note there is room for improvement.
Survey results revealed a very high satisfaction with the umpire arbitration process. Virtually all respondents agreed with the proposition that the umpire procedure has been a valuable tool for resolving impasse. In addition, the advocates believed that the parties they have represented have also been very satisfied with the process. Narrative comments were largely supportive, with the following comments representing broad sentiment:
I have been a strong advocate of the process from its inception. I do not believe the union could have maintained a timely resolution to many grievance issues without it.... Bottom line, I would never give up the Umpire/Expedited Process.
One respondent, apparently a union advocate, explained why grievants often like the umpire process:
I believe they work great for issues that aren't major in depth. It allows the grievant a chance to be heard by an objective person. I have noted that Umpires give the person a chance to explain themselves or ask questions of them. They like knowing they are part of the process. Umpires give reasoning, it helps grievant understand contract language from another person.
Similarly, another advocate spoke of the umpire proceedings as a:
... tool to educate our particular constituency groups to an issue they think may not be fair, but is clearly not a contract violation. As well as educating a supervisor on an inappropriate action.
Despite such broad approval of for the efficiency and educational advantages the umpire procedure provides, a few advocates did express concerns. Two advocates feared that an Umpire Arbitrator might "split the baby," especially in discipline cases. This is not surprising as this has been a longstanding and oft repeated criticism of arbitration in general. Perhaps the greater surprise is that this concern was expressed so infrequently throughout this survey.
Second, it is also interesting that only one advocate agreed with the suggestion that the umpire process makes it too easy to avoid the tough decisions and to defer responsibility to the Umpire Arbitrator. That advocate commented "Umpire process may actually encourage frivolous and redundant grievances which ultimately make it to umpire arbitration."
Scope of Coverage
The parties' Agreement identifies the cases deemed most appropriate for this procedure: "campus, local institution, or work site issues; short-term disciplinary actions [three (3) day or less suspensions without pay]; overtime distribution; and other individual situations mutually as agreed." Respondents indicated that they would not want to reduce the types of cases routed to the umpire process. Indeed, many supported expanding the scope of coverage. Different advocates commented:
The types of cases currently being heard are appropriate for this forum because they are of limited impact with facts generally not in dispute. There are some cases that there really isn't a dispute on facts and the case is very unique and as such would have no precedent setting value. These cases could be umpired. I think the process serves both the employer and the Union well since many cases are institution specific and individual specific. The process currently requires both parties to agree on what goes before an umpire.
Commenting upon the suitability of certain types for cases for the umpire procedure, another advocate observed:
The Umpire process works exceptionally well with issues related to individuals or local groups of employees with the same issue. For example, missed overtime due to different interpretation of a local agreement. They would not work well with major, high cost contract interpretations or terminations. The non-precedential nature of Umpires makes it extremely valuable to both parties since we get a "hint" of how we should interpret the contract or local agreement without being forced to live with a result we can't live with.
Despite the negotiated parameters of the umpire process, the reality has been that the advocates and the Umpires are often comfortable interjecting a great deal of flexibility not expressly provided for in the policy.
The process in operation allows both parties to decide which cases will be Umpired or Expedited. Flexibility is built in. Major precedential cases and termination cases will go to full arbitration. Everything else is up to the parties to decide the level of arbitration.
The umpire process obliges the advocates to provide the Umpire Arbitrator with a statement of stipulated facts and all relevant documents prior to the hearing date. The parties agree that doing so makes sense to ensure a more efficient hearing, and that this task is neither time-consuming nor superfluous. A slight majority of the respondents further agreed that preparing these submissions actually encouraged more settlements, although advocates sometimes disagreed as to the content of those submissions, with one stating: "This is an area that could use some work. I believe a standard issue form should be submitted from each party."
Nevertheless, most of the advocates supported the process of preparing and presenting the pre-hearing submissions:
The pre-hearing submission process is exceptionally useful. When I prep for an umpire, I often get the "rest of the story" from the agency's labor relations staff and management staff. It gives me a chance to give the employer (or union) another perspective on the employer's decision outside the agency's own staff. If you have a good working relationship with the union rep, you will also uncover during the pre-hearing submission process other issues which drive the grievance. This encourages frank pre-hearing discussions which lead to resolution of up to a third of grievance appeals which would not have occurred without the pre-hearing submission process. I have had no difficulties with the parties I work with in developing the pre-hearing submissions. The process of developing and discussing the facts and documents have led to settlements and dropped cases. It saves time at hearing and helps to clarify the issues for hearing.
Once again the parties shared a high level of satisfaction concerning the conduct of the hearing itself. They strongly approved of the current procedures, agreed that thirty minutes per hearing is reasonable, and were comfortable with the current limits on the number of witnesses and the amount of documentary evidence. The advocates continued to support the flexibility that the process affords and are comfortable adjusting it where doing so seems to make sense.
I think the general limit on evidence is fine. The process gives the union rep a chance to testify and the management labor relations rep a chance to testify. However, it is generally understood that the grievant also gets a chance to say a few words and sometimes a manager gets a chance to say a few words.
Recognizing this reality, one advocate has suggested:
Regarding witnesses, the umpire process does not provide for witnesses but it has become the practice for the grievant and steward to speak. If this has become an acceptable practice, then maybe the language should be changed to reflect that. If that happens, then those speaking should be sworn.
Sharing that sentiment, another has noted:
I agree with most of the current procedures but the parties don't always agree on what is the current procedure. The hearings are not run as specified in the master contract. I think they run better than what is in the contract and the contract should reflect the changes that have occurred over time. 30 minutes is more than enough time for umpire hearings, I used to schedule 1 every 20 minutes.
Rendering the Decision
The creators of the umpire process anticipated that the Umpire Arbitrator would render a decision on each case at the conclusion of the hearing day. In reality, arbitrators often issue and explain their decisions immediately after the presentation of a case, and the advocates like that. Many advocates expressed their appreciation for arbitrators who explain the award directly to the affected parties immediately after the presentation of the evidence, permitting them to hear the reasons for the decision "straight from the horse's mouth." Representative comments included:
It is extremely important for the grievant and all the parties to hear the reason for the decision from the Umpire. When the ruling is made after the hearing, all present learn and trust the answer, better than if the answer is relayed by us. Talking directly with the affected person is very helpful if not too lengthy. The grievant and steward need to hear the ruling and the Umpire's thought process for arriving at it. If you wait and render decisions at the end the grievant never hears it for themselves. It is important for the Umpire to discuss with the parties reason behind the decision. Decisions should be rendered after each case so that both the grievant & the supervisor can hear the rationale behind it and hopefully learn from it. By issuing a decision in a "heart to heart" fashion, I believe the grievant or supervisor feels more personally involved.
Disappointed persons are more likely to accept an adverse outcome when it is explained with respect and professionalism. Virtually no advocates would prefer that the Umpire Arbitrator withhold a decision in order to give the parties more time to work things out.
Rare case where the Umpire can ask for additional information and the sides can agree to get a decision at a later date. By the time we are at umpire hearing, the ability to "work things out" has been exhausted. By the time these cases go to hearing, possibility of settlement should have been fully discussed and no more time should be taken on what should be quick cases.
Interestingly, while the vast majority of respondents prefer a detailed explanation of a decision, a few did not. Perhaps a more general explanation leaves fewer opportunities for misinterpretation and lingering problems.
I used to think that decisions should be made immediately. This was because I was told some Umpires would balance decisions if given a chance meaning let the union win their best cases and management win their best cases so it is balanced. My experience has been that Umpires are fair. If all my cases are bad, I lose them all. If they are all good, I win them all. I also find that giving the Umpire a chance to think about their decision results in better feelings on the part of the grievant and the agency. An immediate decision sometimes is taken as a knee-jerk reaction rather than a thoughtful decision. I don't believe that is true but perceptions are important.
A handful of other advocates also shared the above concern that an Umpire might "split the baby:"
Waiting until all cases are presented allows Umpires to "cut the baby" rather than making the tough decisions.
Role of the Umpire Arbitrator
Because the umpire arbitration process is designed to be abbreviated and efficient, the survey explored whether it would be desirable for the Umpire Arbitrator to conduct the hearing in an even more informal fashion. Although several advocates were neutral on this question, the majority indicated that they support and appreciate informality.
A related question concerns the extent to which the parties would like the Umpire Arbitrator to switch hats and attempt to mediate the dispute and, if so, who should initiate this change in roles. Should the Umpire Arbitrator attempt to mediate on his or her initiative, or should mediation be conditioned upon invitation from both parties?
The parties expressed a wide range of views on these questions, with a slight majority discouraging mediation efforts--regardless of who has initiated them--during the umpire procedure. One respondent noted:
The Umpire has the ability to mediate in making their ruling, such as spitting the decision or ruling a compromised relief.
Several commented that the parties had already had the opportunity to explore settlement and they would be uncomfortable with a process that took a new and unexpected direction. There was especially strong resistance to the Umpire Arbitrator undertaking this effort on his or her initiative.
Umpire Arbitrators always wonder whether their decisions surprise the advocates, and this survey inquired whether umpire outcomes have generally been consistent with advocate expectations. It has been reassuring to learn that no one took issue with the decisions rendered and only a few indicated that they were at times confused by the explanation of a decision.
Interestingly, a substantial number of respondents (45 percent) indicated they believe that the outcome of some of their umpire arbitrations might have been different if the dispute had been pursued through another dispute resolution process. Advocates who expressed this perception appeared to believe that had they had the opportunity present more evidence and more witnesses, they could have more effectively made their case. One advocate explained:
Sometimes I think we would win more cases if I had a chance to call witnesses. But, the umpire process was agreed to by both parties (without witnesses) with the hope that it is unnecessary. Sometimes the employer should have picked the Expedited process. I suspect the union also feels the same way. I would not change the process and I am still convinced that the umpire process is a good deal for both the union and management. It is only reasonable that the decision could be different with more evidence such as in a full hearing. I think the outcome may have been different if more data available or if words had been articulated better. Neither of which the Umpire controls.
However, another advocate is less generous toward the Umpire Arbitrators:
I have lost umpire cases on what I consider sympathy/ benefit of a doubt that I think I would have won if they were precedential. I have also won cases that I thought were a "gift" and probably losers. This occurred most often when the decisions were rendered as a group at the end of the day.
A hallmark of the umpire process is that the decisions are not precedential. Interestingly, when asked if they would like to see some umpire decisions made precedential, respondents split almost equally on the question. Those preferring to maintain the current process, whereby awards in one case are typically inadmissible in subsequent cases, umpire or otherwise, suggest that adopting a contrary practice would be so dramatic a change that organizational leaders should address this in bargaining. Having said that, one advocate noted, "I like to test the water and learn part of the process," while another noted that:
The short format of the presentation, the fact that grievant is not sworn, plus the comments I've made earlier means I would not want these decisions to be precedential. The parties have a forum for precedential decisions.
Finally, one advocate simply noted:
Do not want to have to get into lengthy discussions regarding whether cases should be precedential; just raises possibility for more arguments.
Those who preferred to preserve the umpire hearing's efficiency, but also to retain the right to accord precedential value to at least some decisions, explained:
Too many times we on both sides are wasting time and do repeat cases at the same facilities about the same issues every couple years. This is because the decisions are not precedential.
Yet another advocate believes that the employer's failure to abide by a prior umpire ruling, even if non-precedential, suggests an unfair labor practice.
I can cite many examples where the Employer has refused to recognize the previous rulings requiring a ULP or another umpire or full of the same or very similar issue.
However, a supporter of the current system notes:
If the possibility existed that umpire arb decisions could be precedential, then the amount of work it would take to prepare for umpire arbs and the number of witnesses and exhibits and testimony would increase exponentially. This would destroy the intent of the umpire arb process.
Finally, the question of the Umpire Arbitrators' contributions to the process provoked many observations. Although the advocates were not concerned about Umpire Arbitrators unwittingly stepping on land mines or otherwise creating unforeseen problems, they nevertheless indicated that they would feel comfortable alerting the arbitrator to that fact if a case held that potential.
The advocates, although responding anonymously, also agreed that they trust the Umpire Arbitrators to understand the positions they are advancing and would feel comfortable asking the arbitrator to elaborate upon his or her reasoning if they did not fully understand the basis for a decision or a remedy.
Notwithstanding these expressions of support for the Umpire Arbitrators, the advocates did have suggestions.
As advocates, we sometimes assume the Umpire understands exactly what we bring to the arbitration table. Only to find out the Umpire explains later through the decision that something was missing that would have made a difference in the decision. As the parties finish presentations, the Umpire should review briefly the alleged position of the parties and the evidence submitted. Then the Umpire should ask if the position review accurately reflects the party's position. That way, if clarification is needed, it can be added at the request of the Umpire. I have been very pleased with the conduct of Umpires, especially those that routinely do hearings for the state. They understand our contracts, personalities, etc., and adapt as needed when one side or the other needs to be more animated due to pressure from those they represent.
The advocates strongly agreed that a good Umpire Arbitrator possesses qualities different from or in addition to qualities they'd expect in any experienced arbitrator. An Umpire Arbitrator must have keen listening skills and the ability to analyze a case quickly and to explain a decision clearly. One advocate explained the difference:
I do see a difference between the experienced Umpires and those with less experience. Mostly, it is adapting to the informal nature of the process and recognizing that sometimes you need to allow more junk into the process to satisfy both sides. By that I mean that some things that get into an umpire arbitration might be not allowed in a full arbitration. A good Umpire takes in all the good and junk and sorts it out. I don't object to some junk getting into the process if it helps the parties get a chance to tell their stories. I would object in a full hearing.
Another advocate recognized the more informal nature of the umpire process by noting that Umpire Arbitrators
Need to be able to conduct the hearing in an informal manner, relating on almost a personal level with the grievant and supervisor, both during the hearing and when rendering a decision. In addition, need to be able to quickly analyze any additional information, come to a reasoned decision, and be able to render that decision, including rationale, while looking both parties in the eye.
Other advocates commented upon the importance of a longstanding relationship between the parties and the Umpire. One noted:
Because the Umpires do so many cases they know not only the contract but also both parties and their operations. It is very helpful.
Another has commented:
What makes the difference for the Umpire is their understanding of the employer's business and their knowledge of the various practices, policies and procedures. I also think if the Umpire knows the advocates it enhances the process.
Affirming the importance of the parties' relationship to the success of the process, another advocate emphasized:
I would highly recommend it to any jurisdiction, but only if there is a reasonable working relationship between the union and employer. Frankly, where we don't have a good relation, the union (or management) demands that all grievances be resolved in a full arbitration. They simply don't trust the process. This does not mean you can't put it into their contracts, but it won't get used without some trust.
In 1997 the parties recognized that although some of their disputes might best be resolved through the abbreviated and expeditious umpire process, other more complex cases might satisfactorily be channeled to a more extensive process than an Umpire proceeding, but something short of a full arbitration. Hence, they developed and agreed to utilize the expedited arbitration. Expedited arbitrations, which have been discussed earlier in this article, replicate the umpire procedure in that the hearing is abbreviated, a decision is rendered quickly, and the award is not precedential. However, an expedited hearing does differ in a few important respects: advocates can take a broader range of cases to expedited arbitration, the procedure expressly provides for limited testimony, and the arbitrator typically issues an abbreviated, yet written, decision to the parties no later than five business days after the hearing.
The advocates have used the expedited process less frequently than the umpire process. However, they have expressed as high a satisfaction level with it as they have with the umpire hearings. Only ten percent of the respondents indicated they did not think the expedited process was a valuable tool for resolving impasse. Only one thought it made it too easy for the parties to avoid the tough decisions and to pass the buck to the arbitrator.
Comments concerning the expedited process replicated those earlier expressed concerning umpire proceedings. Most advocates would concur with the observation:
My impression of the expedited arbitration is the same as for the umpired arbitrations. The system appears to work so leave it be.
Scope of Coverage
Just as some advocates disagreed concerning the types of cases that should be taken to umpire arbitrations they also disagreed whether the expedited process should be utilized for more, or for fewer, categories of cases. Some noted that the parties already have much discretion in deciding whether to take a case to an expedited or an umpire proceedings, and most advocates were either neutral or preferred that the articulated scope of coverage remain unchanged on the theory that "if it ain't broke, don't fix it." Of those who favored amending the scope of coverage, a slight majority would reduce the range of cases routed to this process.
While a pronounced majority of advocates favor the pre-hearing submissions in an umpire proceeding, they are more evenly split on their use in an expedited procedure where this is not the practice. Those who support pre-hearing submissions in the latter forum reaffirmed the reasons they favor doing so in an umpire procedure:
Could be helpful in moving these cases along if fact sheets and joint exhibits were also provided in advance of the hearing. Same as umpires the parties couldn't agree on facts. A one or two page brief by the parties submitted the day of the hearing might be an acceptable idea. If for no other reason than it makes us get our ducks in order earlier and see where we truly disagree or agree.
Advocates would not alter the broad framework of expedited arbitrations; they expressed overwhelming support for the current procedures, the current limits on numbers of witnesses and amount of documentary evidence, and the current five-day time requirement for rendering the decision. In addition, the parties were largely satisfied with the abbreviated written awards issued in those cases, although some disagree and would prefer more detailed explanations. Most advocates who commented on the hearing focused on the requirement that arbitrators issue their awards within five days; they indicated that they would be comfortable with a longer time frame if the arbitrators felt they needed it. Comments included:
While I like a quick turnaround on expedited, I have seen some very well written decisions which have taken the Arbitrators more than 5 days. I would rather have the decision "late" than incomplete. As busy as the Arbitrators are, I think that 5 days seems short for a written decision, even though they're generally quite brief. 5 days is unreasonable. 15 days would be reasonable.
As with umpire decisions, advocates were virtually equally divided on the question whether some expedited awards should be given precedential value. Only a couple of advocates remained neutral on the question. In any event, if some awards were to be precedential most agree that should be understood before, and not at, the hearing. One advocate who objects to making any expedited awards precedential has explained:
The best part of an expedited arbitration is that it allows both sides to provide much more detailed information at a hearing without being stuck with a precedential decision. If I am going to call witnesses and I know it will be a precedential decision, I will opt for a full arbitration. I believe most of my fellow labor relations specialists will go full if the union asks for a precedential expedited. I think the union will do the same.
This view is affirmed by another advocate who offers another perspective:
Honestly, the expedited arbitration is often used to test the waters where either side really needs to know what would happen if it went to a precedential full arbitration.
Role of the Arbitrator
It is perhaps not surprising that although the advocates are comfortable with a certain degree of informality in an umpire procedure, a greater number would prefer more formality in the expedited hearing. However, even here a substantial number still see value in having the Expedited Arbitrator foster a less formal atmosphere.
As was true regarding the umpire procedure, the possibility of an Expedited Arbitrator switching hats and attempting to mediate a dispute produced disagreement. Most advocates would prefer that the Arbitrator not mediate a dispute in an expedited arbitration, and certainly not on his or her own initiative. Most advocates believe that if mediation takes place, it must arise upon the invitation from both parties.
One advocate who believes mediation could be valuable has noted:
Sometimes an Umpire sees (or is told) that the decision will be especially harmful for one or both parties. A mediated settlement allows both to save face and have a decision both can live with. The worst that could happen is one or both parties state that they prefer at this point to get a decision from an Arbitrator. I have seen the mediation process (at the hearing) work for non-grievable topics. It works often enough to be worth asking if the parties are interested.
Another has noted:
I have had an Arbitrator let us know privately during the hearing that he had problems with issues on both sides and encouraged us to talk/settle. I think that is appropriate. I think the Arbitrator should wait for an invitation before beginning a mediation process.
As was true with the umpire arbitration procedure, advocates indicated that decisions rendered by arbitrators at the conclusion of expedited proceedings were generally what they expected. In particular, probably because a written explanation accompanies the award in an expedited proceeding, the advocates indicated that they are not confused by those decisions. Moreover, fewer advocates speculated that the outcome of some expedited arbitrations might have been different had they pursued the dispute through another process. Advocates in an expedited proceeding are able to present a fuller case than in an umpire arbitration, which undoubtedly explains the perception that the expedited process works well and advocates are typically satisfied with the reasoning provided in the written award.
Advocates who have participated in an expedited arbitration do not think that their arbitrators have unwittingly stepped on land mines or otherwise created problems. They also would feel comfortable alerting the arbitrator to that fact if such danger loomed. When asked if they would like to see Expedited Arbitrators do anything differently, very few thought there was room for improvement.
Although the advocates largely agreed that good Umpire Arbitrators possess qualities different from, or in addition to, qualities expected in any other good arbitrator, this did not prove true with the Expedited Arbitrator. This is undoubtedly explained by the greater similarity between an expedited arbitration and a full arbitration than is true with the umpire procedure.
Given that the parties created the umpire and expedited processes to provide an alternative to conventional arbitration, it has been interesting to explore whether these innovations have been driven by disenchantment with full arbitration or simply reflect the desirability of a broader range of options. When asked directly, the advocates agreed that they are generally satisfied with traditional arbitration. Nevertheless, having other options appears to have reduced the number of full arbitrations to what advocates perceived to be a more reasonable level. Only twenty-five percent of the advocates submitted that there are still too many full arbitration hearings.
Advocates disagreed whether traditional arbitration should be saved for the "big" cases, and whether the full process is generally too time-consuming. Almost half agreed that traditional arbitration is generally too expensive.
No one appeared prepared to dispense with traditional arbitration entirely. As one advocate noted:
I strongly believe there is and always will be a need for the traditional arbitration process. I think the Unions have exhibited fairly good judgment in limiting the type and number of language issues that are taken to full arb. It may not be that traditional arbitration is "too" time consuming, rather it just seems that way when compared to prep for umpire or expedited cases. Traditional arbitration is expensive, but I can't say too expensive. The parties are paying for a final, definitive answer on how to address a problem.
Few of the advocates accepted the invitation to comment upon how traditional arbitration might be improved, and the few suggestions replicate long-standing concerns within the larger labor-relations community. Most suggestions focused on concern that everyone be "More timely in scheduling and decisions" because "The time between scheduling, hearing and decision is far too long a time period and the grievant is the one who bears the time lag and often has a sense of justice delayed as justice denied."
One advocate submitted that "An Umpire 'pre-review' could be done for half or a quarter of the cost and possibly save time and money," while another urged, "No reply briefs."
In response to a survey inquiry whether cases might be submitted to an arbitrator solely on the written record, the advocates split almost evenly on the desirability of adopting that time-saving technique. Similarly, they were equally hesitant about submitting a case to an Arbitrator solely on the written record coupled with a telephone conference call or video conferencing.
One advocate suggested using a "binding settlement" and described it as follows:
Yes, "binding settlement." The concept is; Sequestered testimony. The Arbitrator hears one side at a time. Neither side has access to the testimony. The Arbitrator drafts a settlement agreement and the parties' sign it as the resolution to the grievance. This is best for cases where no matter what the outcome, animosity would continue between the employer and employees. I have used this process and it was exceptionally successful. Submission by briefs is appealing to me. However, I would never agree to it unless I was confident in the Arbitrator understanding the issues. We have several Arbitrators with the state with such experience that I would trust with a written record only. Perhaps there should be dedicated dates each month specifically for holding arbitrations. This would let everyone set their schedule in advance and allow for arbitrations to get on the schedule as soon as possible. There are plenty of grievances state wide so there would never be a shortage. This would also encourage the two sides to get together on a regular basis in order to explore settlement resolution in a more timely fashion than now takes place.
Twenty-two years ago leaders from the Wisconsin Department of Labor Relations and leaders from the Wisconsin State Employees
Union, AFSCME Council 24, agreed that they needed a more efficient way to deal with their backlog of grievances, many of which involved routine issues and did not require a precedential decision. To that end they mutually crafted two special arbitration procedures: the umpire arbitration process and the expedited arbitration process. In the intervening years the parties have resolved a large portion of their grievances using these special procedures, and today relatively few grievances are taken to conventional arbitration.
Given this extended and extensive track record, the parties were interested in now more closely examining their experience to determine how the advocates who have been in the trenches and use these special processes evaluate them and how they might be improved. To that end arbitrators prepared a ninety-question anonymous survey to which an advocate could respond with a quantifiable score and could also offer additional related thoughts.
All of the advocates--who among themselves had one to thirty-six years of labor relations experience--responded to this survey. Results revealed that both union and management advocates are highly satisfied with the umpire arbitration and expedited arbitration processes. Advocates suggested very few changes and none would support eliminating these special procedures as options.
In short, it is fair to say that the parties have realized their goal of resolving select grievances more efficiently while at the same time preserving fairness and effectiveness. These special arbitration procedures have worked well, and in today's even more challenging economy other parties with substantial grievance backlogs could learn much from the Wisconsin experience.
The current Agreement between AFSCME Council 24, Wisconsin State Employees Union and the State of Wisconsin provides:
SECTION 4: Special Arbitration Procedures
4/4/1 In the interest of achieving more efficient handling of routine grievances, including grievances concerning minor discipline, the parties agree to the following special arbitration procedures. These procedures are intended to replace the procedures in Subsection 4/3/1-7 for the resolution of non-precedential grievances as set forth below. If either of the parties believes that a particular case is precedential in nature and therefore not properly handled through these special procedures, that case will be processed through the full arbitration procedure in subsection 4/3/1-7. Cases decided by these methods of dispute resolution shall not be used as precedent in any other proceeding.
A. Expedited Arbitration Procedure
1. The cases presented to the arbitrator will consist of campus, local institution or work site issues, short-term disciplinary actions [five (5) days or less suspensions without pay], denials of benefits under s. 230.36, Wis. Stats., and other individual situations as mutually agreed.
2. The arbitrator will normally hear at least four (4) cases at each session unless mutually agreed otherwise. The cases will be grouped by institution and/or geographic area and heard in that area.
3. Case presentation will be limited to a preliminary introduction, a short reiteration of facts, and a brief oral argument. No briefs or transcripts shall be made. If witnesses are used to present facts, there will be no more than two (2) per side. If called to testify, the grievant is considered as one of the two witnesses.
4. The arbitrator will give a bench or other decision within five (5) calendar days. The arbitrator may deny, uphold, or modify the action of the Employer. All decisions will be final and binding.
5. Where written decisions are issued, such decisions shall identify the process as non-precedential in the heading or title of the decision(s) for identification purposes.
6. The cost of the arbitrator and the expenses of the hearing will be shared equally by the parties.
7. Representatives of OSER and AFSCME, Council 24, WSEU shall meet and mutually agree on an arbitrator.
B. Umpire Arbitration Procedure
1. Whenever possible, each arbitrator will conduct hearings a minimum of two (2) days per month. AFSCME, Council 24, WSEU and the s\State Bureau of Labor Relations will meet with the arbitrator at least once every six months and select dates for hearings during the next six (6) month period.
2. The cases presented to the arbitrator will consist of campus, local institution, or work site issues; short-term disciplinary actions [three
(3) day or less suspensions without pay]; overtime distribution; and other individual situations mutually as agreed.
3. Cases will be given an initial joint screening by representatives of the Bureau of Labor Relations, OSER and AFSCME, Council 24,
WSEU. Either party will provide the other with an initial list of the cases which it wishes to be heard on a scheduled hearing date at least forty-five (45) calendar days prior to a hearing date. This list may be revised upon mutual agreement of the parties at any time up to fifteen (15) calendar days prior to the hearing date.
4. Statements of facts and the issue will be presented by the parties, in writing, to the arbitrator at least seven (7) calendar days prior to the hearing date unless the arbitrator agrees to fewer days for that particular hearing date. If contract language is to be interpreted, the appropriate language provisions of the contract will also be provided to the arbitrator prior to the hearing.
5. The arbitrator will normally hear at least eight (8) cases at each session unless mutually agreed otherwise. Whenever possible, the cases will be grouped by campus, institution and/or other geographic area and heard in that area. The hearing site may be moved to facilitate the expeditious handling of the day's cases.
6. The case in chief will be limited to five (5) minutes by each side with an opportunity for a one minute rebuttal and/or closing. No witnesses will be called. No objections will be allowed. No briefs or transcripts shall be made. The Grievant and his/her steward, plus a department representative and the supervisor, will be present at the hearing and available to answer questions from the arbitrator.
7. The arbitrator will render a final and binding decision on each case at the end of the day on the form provided. The arbitrator may deny, uphold or modify the action of the Employer.
8. The cost of the arbitrator and the expenses of the hearing will be shared equally by the parties.
[Historical Note: This language was moved from Article IV, section 12 which was deleted.]
The survey was comprised of the following questions. Advocates answered these questions anonymously, and the results are tallied below. In addition, many advocates also provided detailed, and much appreciated, supplementary comments. Those comments are discussed in this article but are not included below. Each response identifies the number and percentage of persons who agreed or disagreed with a statement.
Union 11 respondents 55% Employer 9 respondents 45% Total Respondents 20 Years of labor relations experience Average 14.6 years UMPIRE ARBITRATIONS The umpire arbitration process has been a valuable tool for resolving genuine impasse between labor and management. Strongly Disagree 1 5% Disagree 1 5% Neutral 0 0% Agree 10 50% Strongly Agree 8 40% The umpire process makes it too easy to avoid the tough decisions and defer responsibility to the arbitrator. Strongly Disagree 3 15% Disagree 13 65% Neutral 3 15% Agree 1 5% Strongly Agree 0 0% Generally, I believe the parties I represent have been satisfied with the umpire process. Strongly Disagree 0 0% Disagree 0 0% Neutral 3 15% Agree 13 65% Strongly Agree 4 20% The types of cases referred to the umpire process should be ... Strongly Disagree, Disagree, Neutral, Agree, Strongly Agree Expanded 15% (3) 20% (4) 30% (6) 25% (5) 10% (2) Reduced 30% (6) 25% (5) 35% (7) 5% (1) 5% (1) Remain unchanged 15% (3) 10% (2) 45% (9) 20% (4) 10% (2) Requiring pre-hearing submissions makes sense. Strongly Disagree 4 20% Disagree 2 10% Neutral 1 5% Agree 6 30% Strongly Agree 7 35% Preparing pre-hearing submissions earlier encourages more settlement. Strongly Disagree 1 5% Disagree 5 25% Neutral 3 15% Agree 6 30% Strongly Agree 5 25% The written pre-hearing submissions are frequently time consuming and not necessary. Strongly Disagree 4 20% Disagree 9 45% Neutral 4 20% Agree 2 10% Strongly Agree 1 5% Advocates frequently disagree concerning the content of these submissions. Strongly Disagree 1 5% Disagree 9 45% Neutral 2 10% Agree 5 25% Strongly Agree 3 15% I am largely satisfied with the current procedures for conducting the umpire arbitrations. Strongly Disagree 0 0% Disagree 1 5% Neutral 1 5% Agree 15 75% Strongly Agree 3 15% Allotting, on average, 30 minutes for each hearing is reasonable. Strongly Disagree 0 0% Disagree 3 15% Neutral 1 5% Agree 15 75% Strongly Agree 1 5% The current limits on the number of witnesses and the documentary evidence are reasonable. Strongly Disagree 1 5% Disagree 1 5% Neutral 5 25% Agree 10 50% Strongly Agree 3 15% Generally, I prefer that the arbitrator render the decision Strongly Disagree, Disagree, Neutral, Agree, Strongly Agree Immediately 0% (0) 10% (2) 25% (5) 25% (5) 40% (8) 20 After all of the cases have been presented 30% (6) 15% (3) 35% (7) 15% (3) 5% (1) 20 Typically I prefer a more analytical explanation of the decision. Strongly Disagree 1 5% Disagree 3 15% Neutral 3 15% Agree 10 50% Strongly Agree 3 15% Typically I prefer that the arbitrator chat with the affected persons in a more informal "heart to heart" fashion. Strongly Disagree 2 10% Disagree 2 10% Neutral 5 25% Agree 10 50% Strongly Agree 1 5% At times it would be helpful if the arbitrator withheld the decision and gave the parties more time to work things out. Strongly Disagree 8 40% Disagree 8 40% Neutral 2 10% Agree 1 5% Strongly Agree 1 5% Generally, I prefer that the arbitrator in an umpire hearing maintain a sense of Strongly Disagree, Disagree, Neutral, Agree, Strongly Agree Formality 5% (1) 45% (9) 30% (6) 20% (4) 0% (0) 20 Informality 0% (0) 15% (3) 20% (4) 55% (11) 10% (2) 20 Sometimes I wish the umpire arbitrator would switch hats and attempt to mediate a dispute. Strongly Disagree 3 15% Disagree 6 30% Neutral 6 30% Agree 5 25% Strongly Agree 0 0% The arbitrator should attempt to mediate on his/her own initiative, when it seems appropriate. Strongly Disagree 2 10% Disagree 5 25% Neutral 6 30% Agree 6 30% Strongly Agree 1 5% The arbitrator should always await an invitation from both parties before exploring mediation opportunities. Strongly Disagree 2 10% Disagree 4 20% Neutral 5 25% Agree 6 30% Strongly Agree 3 15% Overall the arbitrators' umpire decisions are generally what I expected. Strongly Disagree 0 0% Disagree 0 0% Neutral 5 25% Agree 15 75% Strongly Agree 0 0% I am confused by the umpire decisions more often than I should be. Strongly Disagree 6 30% Disagree 8 40% Neutral 4 20% Agree 2 10% Strongly Agree 0 0% I think the outcomes of some of my umpire arbitrations might have been different if the dispute had been pursued through another form of arbitration. Strongly Disagree 1 5% Disagree 7 35% Neutral 2 10% Agree 9 45% Strongly Agree 1 5% I would like to see some umpire decisions determined precedential. Strongly Disagree 6 30% Disagree 3 15% Neutral 1 5% Agree 6 30% Strongly Agree 4 20% I would like an option whereby the parties could agree at the hearing to treat the case as precedential. Strongly Disagree 5 25% Disagree 1 5% Neutral 5 25% Agree 2 10% Strongly Agree 7 35% Too often an umpire arbitrator unwittingly steps on a land mine or otherwise creates problems (between the parties, or between advocate and "client"). Strongly Disagree 3 15% Disagree 11 55% Neutral 4 20% Agree 2 10% Strongly Agree 0 0% If I see this coming, I do/would feel comfortable alerting arbitrator to that fact. Strongly Disagree 0 0% Disagree 2 10% Neutral 5 25% Agree 10 50% Strongly Agree 3 15% Generally, I trust the arbitrator to understand my position so that I don't have to belabor my evidence and arguments. Strongly Disagree 3 15% Disagree 0 0% Neutral 1 5% Agree 15 75% Strongly Agree 1 5% I would be comfortable asking the arbitrator to elaborate upon his/her reasoning if I did not fully understand the basis for a decision, or if I had questions concerning remedy. Strongly Disagree 1 5% Disagree 2 10% Neutral 1 5% Agree 10 50% Strongly Agree 6 30% There are things I would like to see umpire arbitrators do differently (please elaborate below). Strongly Disagree 1 5% Disagree 3 15% Neutral 12 60% Agree 4 20% Strongly Agree 0 0% In my view, good umpire arbitrators possess qualities different from, or in addition to, qualities I would expect in any experienced arbitrator. Strongly Disagree 1 5% Disagree 3 15% Neutral 5 25% Agree 10 50% Strongly Agree 1 5% EXPEDITED ARBITRATION The expedited arbitration process is a valuable tool for resolving genuine impasse. Strongly Disagree 1 5% Disagree 1 5% Neutral 1 5% Agree 12 60% Strongly Agree 5 25% The expedited process makes it too easy to avoid the tough decisions and pass the buck to the arbitrator. Strongly Disagree 5 25% Disagree 11 55% Neutral 3 15% Agree 0 0% Strongly Agree 1 5% Generally, I believe the parties I represent have been satisfied with the expedited process. Strongly Disagree 0 0% Disagree 1 5% Neutral 2 10% Agree 11 55% Strongly Agree 6 30% The types of cases referred to the expedited process should be ... Strongly Disagree, Disagree, Neutral, Agree, Strongly Agree Expanded 20% (4) 20% (4) 30% (6) 20% (4) 10% (2) 20 Reduced 20% (4) 40% (8) 30% (6) 5% (1) 5% (1) 20 Remain unchanged 10% (2) 15% (3) 45% (9) 20% (4) 10% (2) 20 Parties should provide written pre-hearing submissions for expedited hearings. Strongly Disagree 4 20% Disagree 2 10% Neutral 5 25% Agree 7 35% Strongly Agree 2 10% I am largely satisfied with the current procedures for conducting the expedited arbitrations. Strongly Disagree 1 5% Disagree 0 0% Neutral 3 16% Agree 10 53% Strongly Agree 5 26% The current limits on the number of witnesses and the documentary evidence are reasonable. Strongly Disagree 0 0% Disagree 0 0% Neutral 3 16% Agree 10 53% Strongly Agree 6 32% The current five-day time requirement for rendering the decision is reasonable. Strongly Disagree 0 0% Disagree 3 16% Neutral 2 11% Agree 13 68% Strongly Agree 1 5% I am largely satisfied with the abbreviated written awards issued in these cases. Strongly Disagree 1 5% Disagree 3 16% Neutral 1 5% Agree 13 68% Strongly Agree 1 5% I would often prefer a more detailed explanation of the decision. Strongly Disagree 0 0% Disagree 6 32% Neutral 6 32% Agree 6 32% Strongly Agree 1 5% I would like to see some expedited decisions determined precedential. Strongly Disagree 3 16% Disagree 5 26% Neutral 2 11% Agree 6 32% Strongly Agree 3 16% Generally, I would be able to determine beforehand the types of cases I would like to see determined precedential. Strongly Disagree 3 16% Disagree 3 16% Neutral 6 32% Agree 4 21% Strongly Agree 3 16% I would like an option whereby the parties could agree at the hearing to treat the case as precedential. Strongly Disagree 3 16% Disagree 7 37% Neutral 2 11% Agree 4 21% Strongly Agree 3 16% Generally, I prefer that the arbitrator in an expedited hearing maintain a sense of Strongly Disagree, Disagree, Neutral, Agree, Strongly Agree Formality 0% (0) 21.05% (4) 31.58% (6) 36.84% (7) 10.53% (2) 19 Informality 0% (0) 42.11% (8) 31.58% (6) 26.32% (5) 0% (0) 19 I would like the arbitrator to switch hats and attempt to mediate a dispute in an expedited arbitration. Strongly Disagree 4 21% Disagree 6 32% Neutral 5 26% Agree 4 21% Strongly Agree 0 0% The arbitrator should attempt to mediate on his/her own initiative, when it seems appropriate. Strongly Disagree 3 16% Disagree 7 37% Neutral 2 11% Agree 7 37% Strongly Agree 0 0% The arbitrator should always await an invitation from both parties before exploring mediation opportunities in an expedited arbitration. Strongly Disagree 0 0% Disagree 5 26% Neutral 6 32% Agree 6 32% Strongly Agree 2 11% Generally, the arbitrators' expedited decisions are what I expected. Strongly Disagree 0 0% Disagree 0 0% Neutral 4 21% Agree 14 74% Strongly Agree 1 5% I am confused by the expedited decisions more often than I should be. Strongly Disagree 1 5% Disagree 16 84% Neutral 2 11% Agree 0 0% Strongly Agree 0 0% Arbitrations might have been different if the dispute had been pursued through traditional arbitration. Strongly Disagree 1 5% Disagree 13 68% Neutral 4 21% Agree 1 5% Strongly Agree 0 0% Too often an arbitrator unwittingly steps on a land mine or otherwise creates problems (between the parties, or between advocate and "client"). Strongly Disagree 6 32% Disagree 10 53% Neutral 2 11% Agree 1 5% Strongly Agree 0 0% If I see this coming, I do/would feel comfortable alerting the arbitrator to that fact. Strongly Disagree 0 0% Disagree 5 26% Neutral 2 11% Agree 11 58% Strongly Agree 1 5% There are things I would like to see expedited arbitrators do differently (please elaborate below). Strongly Disagree 1 5% Disagree 5 26% Neutral 11 58% Agree 1 5% Strongly Agree 1 5% In my view, good expedited arbitrators possess qualities different from, or in addition to, qualities I would expect in any arbitrator. (Please elaborate.) Strongly Disagree 1 5% Disagree 6 32% Neutral 8 42% Agree 4 21% Strongly Agree 0 0% TRADITIONAL ARBITRATION PROCESS Overall I am satisfied with the traditional arbitration process. Strongly Disagree 0 0% Disagree 2 11% Neutral 1 5% Agree 12 63% Strongly Agree 4 21% Even with the option of the umpire and expedited processes, we have too many full arbitrations. Strongly Disagree 1 5% Disagree 10 53% Neutral 3 16% Agree 5 26% Strongly Agree 0 0% Traditional arbitration is the only appropriate path for the "big" cases. Strongly Disagree 0 0% Disagree 8 42% Neutral 2 11% Agree 5 26% Strongly Agree 4 21% Traditional arbitration is generally too time-consuming. Response Strongly Disagree 1 5% Disagree 6 32% Neutral 2 11% Agree 9 47% Strongly Agree 1 5% Traditional arbitration is generally too expensive. Strongly Disagree 1 5% Disagree 3 16% Neutral 6 32% Agree 9 47% Strongly Agree 0 0% The traditional arbitration needs to be improved. (Please elaborate below.) Strongly Disagree 1 5% Disagree 4 21% Neutral 10 53% Agree 4 21% Strongly Agree 0 0% Some cases should be submitted to the arbitrator solely on the written record. Strongly Disagree 2 11% Disagree 7 37% Neutral 1 5% Agree 8 42% Strongly Agree 1 5% Some cases should be submitted to the arbitrator solely on the written record coupled with a telephone conference call or videoconferencing. Strongly Disagree 3 16% Disagree 5 26% Neutral 4 21% Agree 5 26% Strongly Agree 2 11%
[c] Christine Ver Ploeg. William Mitchell College of Law, Legal Studies Research Paper Series, Working Paper No. 12, May 2010.
CHRISTINE VER PLOEG
William Mitchell College of Law
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|Author:||Ver Ploeg, Christine|
|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jul 1, 2010|
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