Saturday, January 15, 2011

Caveat Lectores on Grievance Mediation Part 2


The first installment on Grievance Mediation centered generally on the virtues of grievance mediation. This blog is about why grievance mediation is not used more often.

Not all unions and management are sold on mediating grievances. Sometimes, the attorneys are not so much in favor, and arbitrators would go out of business if all grievances were successfully mediated.

A successful mediation requires compromise and when the parties are absolutely unwilling to consider any compromise, there is no value to mediation. Some advocates believe that willingness to mediate will show weakness in a position already taken. Indeed, the system of using arbitration as the ultimate end to labor hostility would be weakened if the parties merely threaten go to war with an obvious resolve to settle every grievance short of the battle. Arbitration must always be reserved for when a settlement is unavailable, and the cause is worthwhile.

Sometimes, the union cannot compromise because the members would rather lose on an issue than admit their position is flawed. Sometimes, management takes the same viewpoint.

Terminations are particularly sensitive. Since a termination is economic capital punishment to an employee and the union, management has a hard time admitting overkill. This is particularly true when safety or bad behavior is an issue. Management can blame the arbitrator for putting an employee back to work if later the employee has more of the same issues that would expose the employer to liability.

HOWEVER, sophisticated parties should be able to recognize the value is settlement short of an absolute win or loss. The fear of losing negotiation superiority because of a willingness to settle any grievance is short sighted when one considers a broader focus than the individual grievance. The collective bargaining and negotiation include processing grievances. Negotiating an end to the grievance can come from mediation where all options are considered.

All too frequently, both parties set themselves up for negotiation failure by pursuing their positions on a grievance as if there were no alternative but to win or lose.

The whole grievance process is a series of encounters where one side tries to convince the other to reverse its course and give in, with each defending its position as if there is no alternative. Management wants the union to recognize the grievance as nothing more than a frivolous complaint and drop the grievance. The union wants to make credible its belief that management if over-reaching and unfair by trying to get management to admit the deceit or incompetence of its managers. Either scenario is flawed.

Creative mediators and willing participants can craft all sorts of options to the win/lose proposition that comes from an arbitration, but it takes effort that some are not willing to expend.

True, mediation require resources, effort and time that can add to the cost of processing a grievance to arbitration; however, settling the grievance with some sort of positive outcome short of a costly arbitration will always save resources and allows the union and management to say they did not lose. Studies show that mediation works nearly 85% of the time. Those are better odds for the union than winning a labor arbitration.

Another extremely valuable aspect of grievance mediation is that it will make it very difficult for a grievant to have a credible claim of failure of the duty of fair representation when the union has gone through the grievance process and even attempted to mediate the grievance. Some would call it cheap insurance in these days when disgruntled employees are looking for someone, anyone to blame for their troubles even their union. Defending a DFR suit or ULP is more expensive than a good faith effort to settle called Grievance Mediation.

And oh yes, have a nice Day?


Caveat Lectores by Jeff Carnes

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