This week\’s lesson discussed arbitration for grievance purposes and public-sector unions. Consider and comment on the following questions:
1. Given the complexity of modern arbitration proceedings, do you think that professional legal representation for both unions and employers should be required? Why or why not?
2. Do you agree with the current prohibition of strikes for all public-sector employees? Should the government relax these rules and allow for worker strikes in certain non-essential occupations? Explain your answer.
Please reference reading resources and one outside reference.
Fossum, J. A. (2015). Labor Relations, Development, Structure, Process (12th Edition). New York: McGraw-Hill/Irwin.
Chapters 15 & 16
**National Labor Relations Board**
Weekly Lesson Narrative:
Lesson Eight: Grievance Arbitration and Public Sector Unionization
Lesson Seven discussed workplace transformation and the new innovative flexible work schedule strategies. In Lesson Eight, we will discuss the use of arbitration as a dispute resolution tool, the dynamics of unionization in the public sector, and the distinctions between American organized labor and international models.
Although arbitration is not mandated as a means of dispute resolution for union-employer relationships, it is strongly encouraged by courts for reasons of efficiency and value. Arbitration has been traced as far back as 2,000 years ago. Traditional arbitration was thought of as a peoples court of sorts, where disputants could settle conflict in a binding way, but without the complexity of formal court proceedings. This type of system was widely-adopted in social institutions such as churches and ethnic communities. It was appealing in the sense that the customs and values of such environments—often more familiar to the disputants than the seemingly esoteric rules of formal law—might have a greater weight in the outcome (Coltri, 2009).
However, over time, what once was a people-driven alternative to litigation became a more formalized, codified, established process in the modern justice system. and in 1947, arbitration was also included in the Taft-Hartley Act as a principal means of resolving conflicts between unions and employers. Since that time, the procedural codifications and formal regulations of arbitration have been significantly ramified through Supreme Court decisions and other legislative passings (Elkouri, Elkouri, Goggin, & Volz, 1985).
Recognizing the benefits of reduced costs (when compared to formal litigation) associated with arbitration, many unions and employers have made a tradition of including mandatory arbitration clauses in their agreements. Because arbitration is still a binding form of dispute resolution, because it is a private process (closed to the public eye unless both parties agree otherwise), and because much of todays complex arbitration proceedings are such that disputants benefit significantly from the specialized (and very expensive) skills of legal counsel, large companies with considerable capital can use arbitration to reduce risk without sacrificing leverage over unions (Schwartz, 1997).
Dynamics of Arbitration
Far from being the informal peoples court of earlier times, today arbitration has expanded in scope and complexity such that there are many different types of arbitration, each with different implications concerning control, costs, timeframe, and the likelihood of success for disputants.
Formal v. Informal: Although individuals in arbitration proceedings are free to represent themselves, the complex nature of collective bargaining agreements and complicated nuances of arbitration rules virtually demand that both employer and union be represented by legal counsel.
Pre v. Post Agreements: Although the ouster doctrine used to preclude pre-emptive arbitration agreements that mandate arbitration before a dispute even arises (Domke, 1972), this policy has largely been abandoned today, and many collective bargaining agreements pre-emptively impose arbitration.
Variety of Award Models: In any arbitration setting, there may be a variety of limitations placed upon the arbitrator in terms of awards. An arbitrator is usually unrestricted in deliberating the merits of a case, but once he or she has determined an appropriate disposition, there are different paradigms by which he or she may be restricted in terms of relief for the prevailing party. In some cases, the arbitrator is free to declare an award with no greater limitations than those of a court judge. In other cases, the disputants establish ahead of time the minimum and/or maximum awards to which a prevailing party may be entitled. Still, in other cases, awards may be based on settlement offers which are submitted by the parties in advance. One such model, called final offer selection arbitration, requires the arbitrator to choose one of the final settlement offers proposed by each party, based on fairness and equity. This has become a fairly popular model in union contracts.
Unionization in Public Sector Employment Environments
Public sector employees comprise a wide variety of fields at both the state and federal levels, including police, fire, teachers, state and federal government employees, the military, and others. Many of the dynamics of union representation are similar to that of the private sector, but there are some very important distinctions.
First, bargaining authority has been restricted in many cases, either by executive order or by law. This has been done in an effort to ensure the continued efficient operation of governmental services, notwithstanding changes in resources (e.g. tax revenues).
Another big distinction lies in remedial procedures available to disputants under union contracts. In the public sector, impasse resolution procedures are codified, and commonly include arbitration. Final offer selection arbitration is often preferred for efficiencys sake. However, in many states strikes are prohibited for reasons of societal stability. If public employees were permitted to shut down the government over labor disputes, this could obviously present a significant danger to the public at large.
Each state has its own prescriptions for public sector unionization within their own respective borders (they vary significantly from state to state). It is also worth noting that currently there is a very strong political bias in the United States on the subject of organized labor. The Democratic Party strongly support unions with public policy, and in turn is supported financially by most of the biggest unions in America. Republicans, on the other hand, tend to make policy that deteriorates union power, and although they consequently receive little support from unions, big corporations that have strong interests in crushing unions usually compensate (and then some) for the difference.
Weve spent the entirety of this course talking about unionization in the United States, as this context will likely be most relevant to your future career in human resources. However, it is important to note that organized labor efforts are in various states of evolution around the world from Europe, to Asia, to more remote parts. While a comprehensive review would far exceed the scope of this course, below are some of the current prevalent themes in the unionization arena outside of the United States.
Work Councils: In some European countries such as the UK, Germany, France, Spain, Sweden, and elsewhere, work councils perform the role that unions do in America, and one of the biggest distinctions here is that these work councils usually have representation on a companys executive leadership team (i.e. a seat on a board of directors). As a result of this more intimate relationship between employee representation and management, cooperation between the two is typically better than in the United States.
Multiple Union Representation and Contract Deliberations: In parts of Europe, it is permissible for employees to be represented by more than on union simultaneously. Additionally, European Union (EU) countries do not distinguish between mandatory and permissive bargaining issues as U.S. law does, so this is not an area of contention in negotiations.
Asian Unionization Efforts: In many Asian countries (particularly communist models such as China), efforts to organize labor have either been outlawed, suppressed, or heavily controlled by the government.
Strike Frequency and Duration: Strikes are typically shorter abroad than they are in the United States, but in countries such as Australia, New Zealand, Italy, and Finland, strikes occur more frequently.
Unionization Effects on Wages: In European countries, wages are generally not influenced as drastically by unionization as they are in the U.S. However, the proliferation of unions in Europe has led to a decline in foreign investments, such as those made by American businesses.
In this lesson, we discussed the dynamics of arbitration as a dispute resolution tool in union-employer spats. We also reviewed the implication of labor relations in the public sector, and the differences between American unions and international models.
American Arbitration Association (n.d.). Rules & forms. Retrieved from https://www.adr.org/aaa/faces/rules;jsessionid=fol-fft1YodHQahUN4iE7VE2iDgqRDxzUyZuzO8VxSpVZaqV-9DJ!1857367408?_afrLoop=40590634546811&_afrWindowMode=0&_afrWindowId=null#%40%3F_afrWindowId%3Dnull%26_afrLoop%3D40590634546811%26_afrWindowMode%3D0%26_adf.ctrl-state%3D1z5sxu5fg_4
Coltri, L. S. (2009). Alternative dispute resolution: A conflict diagnosis approach. Upper Saddle River, NJ: Prentice Hall.
Domke, M. (1972). Commercial arbitration. Annual Survey of American Law, 291.
Elkouri, F., Elkouri, E. A., Goggin, E. P., & Volz, M. M. (1985). How arbitration works (p. 2). Washington, DC: Bureau of National Affairs.
Schwartz, D. S. (1997). Enforcing small print to protect big business: Employee and consumer rights claims in an age of compelled arbitration.Wisconsin Law Review, 1, 33.
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