Wednesday, March 3, 2010

Caveat Lectores on Labor Arbitration II

In November, 2009, Caveat Lectores published a Rant on Labor Arbitration. This is the second installment of what may be many in a series.

Last week I participated in a mediation to try to settle two grievances and finalize stalled CBA negotiation wherein the parties were operating under a status quo without a contract for over a year. As we all know, this is dangerous; particularly when either party can declare an end to the impasse by declaring an unwillingness to continue the status quo. Since this was a private sector employer, we had imposed contract terms and strike/lockout as potential outcomes. Not good in today’s labor market.

As frequently happens in such cases, the grievant was very sincere but woefully uneducated as to the process. The union leadership was well versed and capable but working with a local leader who was totally unwilling to compromise. His frequent refrain in response to suggested compromises was to say “let’s just let the arbitrator decide.”

He did not have a clue what that would mean. The union’s case was weak and there was no effective remedy available. The grievant would not have agreed, but what we were trying to do was to get something out of arbitration that we could not get in negotiation. As we experienced labor advocates know, arbitrators do not appreciate it when a union tries to pull this maneuver.

Eventually, we settled the grievances and the terms of the Contract by negotiation instead of ADR type litigation or a strike, but the members of the bargaining unit will be disappointed in the result because it did not encompass total defeat of the employer. This is not an uncommon feature of grievance arbitration/mediation when you have real people involved. Ignorance of the labor negotiation process is not necessarily due to stupidity, but we cannot categorically rule that out.

When I left the mediation for the day to travel to my Labor and Employment Law class at USF, I knew the subject of this week’s Caveat Lectores Rant. My preparation included the usual Internet research on Google and more proprietary sources to seek knowledge about the subject of: “How often do unions win in arbitration?” I already knew the answer but needed to update my data. The answer is: not often enough to cast the future of a grievant and the Local to the winds of chance just because the opportunity is available and somebody is pissed off.

The Caveat Lectores research produced an article entitled: HOW UNIONS CAN IMPROVE THEIR SUCCESS RATE IN LABOR ARBITRATION: By Charles A. Borell This 2006 mini-treatise is a few years old, but nothing has significantly changed in four years to suggest it is out of date. The conclusions may not be perfect because so little real scientific data is available about labor arbitration, but since I agree with most of the results from the work, I am going to go with it.

Mr. Borell’s research, based on a 10 year tracking period of arbitrations with IBEW Local 97 indicated the Local had a clear win only 26.6% of the time. A survey of a similar time period using which would have included a larger segment showed the average win rate for unions during the same 10-year period was 36.3%. Using either set of percentages, it is clear that unions win less frequently than they lose. Anyone who thinks it is a good idea to bet the future of a bargaining unit on those odds would not be a good poker player.

Arbitration may be the preferred method of settling labor disputes in lieu of labor strikes or litigation, but it is a tool not a result. Some neophyte union leaders and nearly all rank and file union members think that because they have this very important arrow in their quiver, they should use it first and often. Nothing could be further from the truth. The odds against us are monumental. (See above)

In the private sector, management will nearly always agree to binding arbitration in exchange for a no strike clause. In the public sector, it is usually a legislated trade off to defend the unavailability of strikes and lockouts to either side. I suggest that the gravity of taking a grievance to arbitration should be looked upon with the same seriousness as going on strike. A negative result can be devastating to either side. But others do not agree and look at it as an opportunity to vanquish the other side with little regard for the opportunity to be vanquished.

Those “others” are usually uneducated and inexperienced labor advocates who have not been totally screwed at the altar of an all powerful arbitrator who disagreed with a poorly conceived and presented arbitration case. (Been there, done that. It sucks to be me when I get assigned such a loser, but it is my job to do the best I can with what is handed to me.)

Without trying to duplicate Mr. Burell’s work here, Caveat Lectores will summarize some of the conclusions and responses to a survey he received from 73 experienced, highly regarded labor arbitrators.
· (79.5%) indicated that poor preparation significantly contributed to the union's win rate.
· (90.4%) indicated that filing grievances with insufficient merit is an issue for unions.
· (71%) indicated that competency of the union's advocate is an issue in union performance in labor arbitration.
· (74%) indicated that witness credibility is an issue. Arbitrators frequently include in the findings of facts that the employer's witnesses were more credible than the union's. The supposition is the employer witnesses had no reason not to tell the truth, while the same could not be said of the union witnesses.
· Thirty-four arbitrators listed other reasons unions may not be successful in labor arbitration. The most significant reasons included: (1) unions trying to obtain a result in arbitration that they could not obtain through negotiation at the bargaining table; (2) unions arguing fairness instead of the terms of the CBA; (3) the union's unfamiliarity with the bargaining history of the CBA; and (4) having an overwhelming number of grievances scheduled for arbitration.
· Although the arbitrators surveyed split on the issue of whether an attorney was necessary for successful arbitration advocacy, Borell suggested a Local should have labor counsel for arbitrations. Since I am a labor attorney, I agree. However, because many of my clients cannot afford to arbitrate with an attorney, I say it is better to go it alone than not at all. A union local can do an adequate job but only if the Local does all the things an attorney would do. This takes skills training, experience and devoting the time necessary to properly prepare. Most Local unions do not have the time to do it right.


This is easy to find on the Net but a little tricky to download and print. Caveat Lectores will gladly send you a copy. Just email us at or phone Daniel Eger at 813-254-9524.

And oh yes, have a nice Day?



Starsandplow said...

Our I.A.F.F. local went through arbitration twice within the recent past. Both were the result of grievances that were denied throughout the steps of the grievance process (Chief of Department, Director of Human Resources, City Manager). In the first case the arbitraitor upheld our current vague contract language despite the fact the Department S.O.G.s specifically prohibited the actions taken by management. Needless to say, we were not happy with the decision in that we were looking for the arbitraitor to uphold the S.O.G.s as part and parcel of the contract. Long story short; problem not resolved.

In the second arbitraition we lost based on our failure to supply adequate background of day to day operations and a "remedy" being available in our contract.

Lessons Learned:
1. Arbitraitors have a large ammount of power to admit or deny evidence in the case they hear.
2. Setting a frame of reference is crucial. Things that are understood by both parties are not necessarily a given in the mind of the arbitraitor.
3. Arbitraitors will not clarrify language for you.
4. Just because the arbitraition process is available to labor, doesn't mean it exists to help.
5. While it is generally understood that arbitraition is a gamble, it is not understood that the cards are stacked against labor.
6. If you are still negotiating with management you have not lost!!

Jeff Carnes said...

Binding arbitration is essential to keep the integrity of the collective bargaining process intact. Without it, you cannot enforce the contract. However, it is a tool not a result and the tool can work either for you or against you. A mutually negotiated settlement is always better than an imposed award by an arbitrator but sometimes that is the only vialble option. You are corerect to say, "If you are still negotiating with management you have not lost!!" Thanks for your comments.

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