6 Surprising Reasons to Rethink Grievance Arbitration
You failed to reach agreement through grievance and mediation with an employer over a member’s discipline matter. Is the next step grievance arbitration?
Not necessarily.
1. Your Union Is Not A Blank Check For One Member’s Troubles
Ask yourself. Does the member’s case have merit? Is the language in your Collective Bargaining Agreement (CBA) crystal clear?
And I mean crystal clear.
Because if there’s anything “gray” in your contract — words like “may,” “shall,” and “should” — then arbitrating on behalf of a member may set up you and your union for a costly mistake.
Expenses can escalate quickly when a grievance becomes an arbitration. To start, there’s the cost of the arbitrator, potential attorney fees, hearing room, and court reporter.
As your local’s leader, you must be responsible to all members, not just one. If you don’t have an ironclad case, explain this to the aggrieved member with sensitivity and compassion, and cut your losses.
Tip: Federal Mediation & Conciliation Service offers free mediation and arbitration services. For more information, check out their website at www.fmcs.gov.
Is Your Time Worth Grievance Arbitration?
By Sun Ladder – Own work, CC BY-SA 3.0
2. Your Time Is Money
What is your time really worth? Have you ever calculated it? There are several online tools that help you figure this out, taking into account your salary, benefits and average weekly hours worked.
But I digress. The point is that when you take on an arbitration, you and your staff must prepare for it and dedicate a day or more to the hearing — consuming your valuable time, which takes you away from other members. Again, make sure your member’s case is worth your time — time that your other union members are paying for as well.
3. You Give Up Control
When you agree to arbitration, you agree to abide by the decision of a “third-party” arbitrator, an “independent” person officially appointed to settle your dispute. Hopefully, your CBA includes language, which addresses a fair arbitrator selection process as well as preference for industry experts. This will save you time. If not, be sure to write these provisions into your next contract.
Even under the best of circumstances, an arbitrator is still a third party and interprets your contract. If there’s anything “gray,” you are at their mercy.
So why go to arbitration anyway?
4. You Call the Employer’s Bluff
Challenging the employer through arbitration can be an effective strategy. If your CBA language calls for shared costs or “loser pays all” and you appear to hold an advantage, the employer may fold at the suggestion of arbitration and agree to a settlement.
5. You’re Worried About “Unfair Representation”
It’s possible that the aggrieved member will file an “unfair representation” charge if leaders fail to follow through with the member’s request for arbitration. Business managers in an election cycle may feel more pressure to prove their value and see the arbitration as a way to demonstrate this.
Before you jump the gun, re-read reasons number one and two: money and time.
And if you choose not to arbitrate a personnel matter, consider negotiating the removal of negative marks from employee files during the next round of contract talks. I always do.
6. You’re Confident In Your Contract Language
Not every contract is black and white. The “contested” words over which you and the employer disagree must say what they mean and mean what they say.
If you believe your contract is clear, and your attorneys agree, by all means, go for it.
Final Recourse: If your contract does not include a provision for arbitration, you can still file a “breach of contract” against the employer. This means you’ll fight it out in civil court with the employer and your attorneys. Do you see dollar signs?
Final Takeaway: Make sure your CBA includes language for grievance, mediation, and arbitration.
Next Links:
Does Your CBA Have a Grievance Procedure?
Don’t Make This Negotiating Mistake
Photo: By Stefan Doering (Own work) [Public domain], via Wikimedia Commons
