Using an arbitrator often helps resolve a bitter struggle, because it takes a problem that looks unsolvable out of the union’s and the company’s hands and lets a disinterested third-party decide. But the nature of union business is negotiating a settlement with the company.
Full Answer
How does the union arbitration process work?
Each union arbitration process begins through a separate process. The beginning process gets referred to as the “grievance process.” Through the grievance process, the union and company work to resolve the dispute. But say that a legal dispute cannot get solved through the grievance process.
Can an arbitrator rule for the Union without a remedy?
An arbitrator can rule for the union but, at the same time, prescribe no remedy if none was requested. Our Case is Not Based on "Fairness" — Finally, remember that arbitration is not the arena to decide what is fair and what is not. An arbitration decides whether the contract has been violated.
Can employers use arbitration to resolve workplace disputes?
Employers can use arbitration even if there isn’t a union of employees. The employers can draft agreements with terms related to arbitration. This way, workplace disputes can get resolved even if a union isn’t present.
Can I sue a company after arbitration?
No, you cannot sue the company, employer, or union after arbitration concludes. Why? Because arbitration almost always has binding status. Say that a company and a union signed an arbitration agreement.
Do unions win arbitration?
The common experience: unions seem to run about a 50-50 chance of winning discharge and discipline cases, but a much lower percentage of cases involving contract language. Arbitrators seem much more likely to defer to the "management rights clause" than support the union's interpretation of the contract.
Do unions support binding arbitration?
Under the Employee Free Choice Act (EFCA, H.R. 800), if a union and management cannot agree to terms on the first contract after a union is recognized, either side could send the dispute into binding arbitration.
How does arbitration relate to unions?
Arbitration resolves disputes between parties. In the unionized workplace, arbitration is a means of resolving disputes that occur in the application or interpretation of a collective bargaining agreement between an employer and a union representing employees.
Can a union deny arbitration?
In general, a union may properly treat discrimination and harassment grievances like other grievances alleging a violation of the agreement. It may refuse to arbitrate a case if the case has no merit or the collective interests of the unit are adversely affected.
Who usually wins in arbitration?
The study found that: Employees were three times more likely to win in arbitration than in court. Employees on average won twice the amount of money through arbitration ($520,630) than in court ($269,885). Arbitration disputes were resolved on average faster (569 days) than in litigation (665 days).
How long does a union arbitration take?
HOW LONG DOES ARBITRATION LAST? It usually takes several months for parties to do the necessary discovery and other work to prepare for an arbitration. The hearing itself will last anywhere from one day to a week or more.
Does arbitration usually favor employers?
Statistics have overwhelmingly shown that arbitrators rule more often in favor of the employer against the employee.
What is union negotiation arbitration?
Arbitration is a term you'll often see in the news or media releases regarding activities between unions and employers. Arbitration is a legal process where parties to a dispute submit their arguments to an Arbitrator – an impartial person, similar to a judge – appointed by mutual consent or statutory provision.
Who has the burden of proof in a union grievance?
7). In a disciplinary grievance the burden of proof is on the Employer. A contract interpretation grievance challenges the Employer's violation of a non- disciplinary term of the CBA such as wages, overtime, bidding, lay-off, recall, holiday, etc. The burden of proof is on the Union in a contract interpretation case.
How long does it take for an arbitrator to make a decision?
After the briefing is complete, the arbitrator issues a written decision, usually 30-90 days after receipt of the last brief. In all, it may take up to six months from the conclusion of the hearing until the issuance of a decision.
What are disadvantages of unions?
Here are some of the downsides of labor unions.Unions do not provide representation for free. Unions aren't free. ... Unions may pit workers against companies. ... Union decisions may not always align with individual workers' wishes. ... Unions can discourage individuality. ... Unions can cause businesses to have to increase prices.
What to do when your union is not helping you?
The National Labor Relations Board (NLRB) is a Federal agency that protects your right to join together with other employees to improve your wages and working conditions, with or without the help of a union. For assistance, please call: 1-844-762-NLRB (1-844-762-6572)
Does arbitration usually favor employers?
Statistics have overwhelmingly shown that arbitrators rule more often in favor of the employer against the employee.
What does binding arbitration mean?
By signing a contract with a mandatory binding arbitration provision, you agree to resolve any disputes about the contract before an arbitrator who decides the dispute instead of a court. You also may agree to waive other rights, such as your ability to appeal a decision or to join a class action lawsuit.
What is arbitration in collective bargaining?
Arbitration is a method of dispute resolution used as an alternative to litigation. It is commonly designated in collective agreements between employers and employees as the way to resolve disputes. The parties select a neutral third party (an arbiter) to hold a formal or informal hearing on the disagreement.
Is collective bargaining and arbitration same?
Labour arbitration—the reference of disputes between management and labour unions to an impartial third party for a final resolution—is usually the last step under a collective-bargaining agreement after all other measures to achieve a settlement have been exhausted.
Why use mutual arbitration?
There are many valid reasons for using mutual arbitration agreements that benefit employees as well as employers, like keeping legal costs down, speeding up grievance decisions, and avoiding employee-employer hostilities that often accompany court cases. With the Supreme Court decision, following the best practices in employee engagement applies more than ever if you want to stay union-free.
What was the first case against mandatory arbitration?
D.R. Horton and Murphy Oil were the first cases, but a pro-union NLRB has issued numerous other decisions against mandatory mutual arbitration agreements. As decisions were appealed, circuit courts decided in support of employer mandatory arbitration agreements. In defiance, the NLRB chose to follow a policy of non-acquiescence. In other words, the NLRB ignored the court decisions.
What is arbitration clause?
An arbitration clause states that an employee agrees to not pursue legal action, individually or collectively, against an employer in court when protesting job-related issues like wrongful termination or wages. Instead, the employee agrees to only utilize a private arbitration process on an individual basis and waives the right to join a class-action lawsuit against the employer. Unions believe the arbitration clause violates worker rights, and the National Labor Relations Board (NLRB) agreed in past rulings. The Supreme Court Decision upended the NLRB rulings, making it easier for you to avoid expensive drawn-out legal expenses but igniting union anger.
Why are unions working behind the scenes?
You should also be aware that unions are always actively working behind the scenes to train traditional employees and contracted or other nontraditional workers on asserting worker rights to encourage people to not accept or fight against mandatory mutual arbitration agreements . This could easily become a major employer issue in a competitive labor market in which people have many job options.
What is the Supreme Court ruling in Epic Systems Corp. v. Lewis?
v. Lewis that consolidated three appeal cases. The Supreme Court decided, “The Arbitration Act requires courts to enforce agreements to arbitrate…” It further noted that the only time courts can refuse to enforce arbitration agreements is when there is “fraud, duress, or unconscionability” involved. The Trump administration’s NLRB actively embraced the decision and is currently pursuing court reviews of existing filed lawsuits involving mandatory mutual arbitration agreements to get them tossed out.
How does a union prevent claims?
By taking an employee's case through the grievance or arbitration process, the union can prevent claims that they failed in their duty of fair representation. The union has the right to refuse to take a case if it is deemed that the issue lacks sufficient merit to grieve or arbitrate. However, the union may not make an arbitrary decision, refuse to move forward because of personal feelings about the grievant or the cost to the union, or be neglectful and untimely in the processing of a grievance. If a member has a legitimate case, the union must utilize the correct procedures.
What is grievance arbitration?
The grievance procedure and ultimately arbitration provides the union with a formal way to enforce the contract that was negotiated with management. The grievance procedure has time limits and often has a clause at each step that states that management must respond within a certain number of days or the grievance will automatically move to ...
What happens after the Authority resolves an arbitration appeal (or no appeal is filed)?
After the Authority issues a decision that resolves exceptions to an arbitrator's award, or no exceptions (or procedurally sufficient exceptions) are filed, the arbitrator's award becomes final and binding, and a party's refusal to comply with the award may be an unfair labor practice (ULP). In such situations, if a party seeks to achieve enforcement of the arbitrator's award, then the party may file a ULP charge with an FLRA Regional Office.
How long does it take to appeal an arbitrator's award?
Once an arbitrator issues an award, either an agency or a union may appeal the arbitrator's award to the FLRA's three-Member adjudicatory body (the Authority) by filing an "exception" within 30 days after the arbitrator's service of the award on the parties .
What is a negotiated grievance procedure?
The Federal Service Labor-Management Relations Statute (the Statute) requires that collective-bargaining agreements between agencies and unions include negotiated grievance procedures that an employee, union, or agency may use to pursue certain types of workplace disputes.
Can a union invoke arbitration?
The Statute also requires that negotiated grievance procedures provide for binding arbitration of grievances that the parties are unable to resolve. Generally, only an agency or a union may invoke arbitration; an individual employee may not.
Can you appeal an arbitration decision?
§ 2429.17 . But a party generally may not appeal an Authority decision in an arbitration case to any court, unless a ULP is involved.
Why is arbitration bad?
Why? Because arbitration is a third party process that does little or nothing to build union strength and, at worst, can set a bad precedent that will haunt workers even beyond their own union for many years.
How do arbitrators know when someone is lying?
Arbitrators will know when someone is lying or stretching the truth. Arbitrators come down much heavier on union witnesses for lying than they do on management. Know the Employer's Case — This is something essential to pay attention to-thinking through the employer's case and how we'll respond.
How many chances do unions have of winning a discharge case?
The common experience: unions seem to run about a 50-50 chance of winning discharge and discipline cases, but a much lower percentage of cases involving contract language. Arbitrators seem much more likely to defer to the "management rights clause" than support the union's interpretation of the contract.
What documents are included in a contract language dispute?
In contract language disputes, documents might include anything pertaining to contract history (to show the "intent" of the language involved and/or how the language developed over time):
Is arbitration expensive?
Finally, arbitration is expensive and there are plenty of bosses who would love to bankrupt a local union by pushing every grievance to arbitration. The best rule of thumb: always try to win organizationally; consider arbitration only if there's no other course.
Where to arrange a hearing for a wrongful termination case?
Arrange for the hearing at the employer's offices or union hall rather than some fancy hotel.
Can an arbitrator undo a contract?
With the stroke of a pen, an arbitrator can undo hard-won contract language-and, as many trade union ists have found out-what we lose in arbitration we rarely recover in nego tiation. Arbitrators have considerable freedom to frame their decisions and the outcome may be completely unexpected or irrational.
What Does Arbitration Cost?
Arbitration costs vary based on the complexity and detail of the case and the level of expertise you want from the arbitrator. Typically the cost of arbitration includes:
What is mandatory arbitration?
Many business and employment contracts have arbitration clauses. Many retailers, credit card companies, and employers are using mandatory arbitration in their contracts, requiring that customers or employees consent to arbitration instead of litigation to resolve disputes.
How does an arbitration case start?
Filing and Initiation: An arbitration case begins when one party submits a Demand for Arbitration to the AAA. The other party (the respondent) is notified by the AAA and a deadline is set for a response. Arbitrator Selection: The AAA works with the parties to identify and select an arbitration based on the criteria determined by the parties.
What is the process of bringing a business dispute before a disinterested third party for resolution?
The Process of Arbitration . Arbitration is the process of bringing a business dispute before a disinterested third party for resolution. Arbitration can be held ad hoc (internally by the parties) or with support from an organization like the American Arbitration Association (AAA). The parties select an arbitra tor or a panel.
What is the difference between litigation and arbitration?
The differences between arbitration and litigation involve the processes themselves and the result of decisions on the disputes. Both are formal processes, but arbitration in many cases is less costly and results in shorter settlement times.
What is an arbitrator?
Arbitrators are trained professionals who have expertise in specific areas of arbitration, including employment, labor, construction, commercial, and international disputes. The American Arbitration Association maintains a roster of arbitrators in these and other areas that the parties can use in selecting an arbitrator.
What is preliminary hearing?
Preliminary Hearing: The arbitrator conducts a preliminary hearing with the parties, to discuss the issues in the case and procedural matters, such as witnesses, depositions, sharing information, and other matters.
Why is arbitration important?
Arbitration is a valuable way to resolve disputes and is frequently used in labor relations to resolve grievances that arise under existing contracts. But the Employee Free Choice Act would use arbitration to create a contract when parties are unable to agree. This is known as "interest arbitration," and it is a clumsy approach seldom seen outside ...
What would an arbitrator decide?
The arbitrator would decide what weight to put on factors like the financial health of the employer, the compensation levels of competitors, and local costs of living with little oversight and virtually no risk that his or her ruling would be overturned by the courts.
Why should arbitrators write their own terms?
Allowing arbitrators to write their own economic terms could also tempt them to take the safe path and avoid dealing with the merits of the parties' arguments by splitting differences down the middle. For example, if the union wants a 4 percent raise and the employer would accept a 2 percent raise, the arbitrator might just settle on the average, a 3 percent raise, without carefully considering any other factors.
What is labor reform?
A steady decline in union membership has led union organizers and sympathetic politicians to introduce "labor reform" legislation designed to make it easier for unions to gain representation rights over more workers without becoming more accountable to those workers. The main labor reform bill before Congress, the Employee Free Choice Act (H.R. 800), contains two particularly problematic provisions. "Card check" recognition, which has received the most attention, would hurt workers by doing away with secret-ballot elections for unionization. The second provision would force "interest arbitration" on employers and unions, shifting their right to negotiate contracts to unaccountable government officials and increasing the risk of bad contracts. Congress should not force employers and unions to take this gamble.
How long does it take to get an arbitration panel in Michigan?
Based on Michigan's statute, arbitration is supposed to be quick. Assembling the arbitration panel should take less than three weeks. Once the panel is named, the first hearing should be held within 15 days, and hearings are supposed to be wrapped up 30 days after they commence. In reality, the process is drawn out.
How long does it take for an EFCA to short circuit negotiations?
EFCA would short-circuit negotiations, allowing either party to call for a government-appointed mediator after 90 days.
Is arbitration final?
The decisionmakers may be seen as fair and judicious, or they may be distrusted by one side or both. It would not matter: The arbitrators ' decisions would almost always be final.
When is the end of day hearing for Article 1.6.B?
In the July/August 2020 issue of the American Postal Worker magazine, the Clerk Craft reported that the remedy settlement hearing for the Article 1.6.B “End of Day” button (PMEOD) case was scheduled for August 12-13. However, the Postal Service...
When did the APWU enter into a settlement with the Postal Service?
(This article first appeared in the July/August 2020 issue of the American Postal Worker magazine) On May 15 , the APWU entered into two separate Step 4 Settlement Agreements with the Postal Service, regarding the Intrastate DOT physical requirement...
NLRB Ignores Court Decision on Mutual Arbitration Agreements
Understanding Mutual Arbitration Agreements – Who Do They Protect?
- There are two important points to keep in mind concerning mutual arbitration agreements. One is that the Supreme Court decision doesn’t impact employees who already belong to a union. Another is that employers and unions will continue to use agreed-upon labor arbitrationprocesses to settle grievances. However, you should recognize that this decisio...
Arbitration Agreements, Transparency, and Employee Engagement
- If you require new or current employees to sign mandatory mutual arbitration agreements, it’s important to explain the positive reasons for the requirement. Engaging employees and making them feel like they have a voice in the company depends on transparency and trust. There are many valid reasons for using mutual arbitration agreements that benefit employees as well as e…
Undermining Strength
Potential Disaster
- An ill-considered decision to arbitrate can also turn into a disaster. With the stroke of a pen, an arbitrator can undo hard-won contract language-and, as many trade unionists have found out-what we lose in arbitration we rarely recover in negotiation. Arbitrators have considerable freedom to frame their decisions and the outcome may be completely unexpected or irrational. In one ca…
Arbitrate 'Til You Drop!
- Finally, arbitration is expensive and there are plenty of bosses who would love to bankrupt a local union by pushing every grievance to arbitration. The best rule of thumb: always try to win organizationally; consider arbitration only if there's no other course. And, always consider what will happen if the case is lost. Remember, the arbitrator's decision may be binding until your cont…
If You Have to...
- We know it's sometimes necessary to arbitrate. Pick your cases carefully and make sure they're strong. Be very careful where contract language is concerned. And, try to take the long view: is it likely that a particular principle can be won through a stronger case in the future? Or, should the issue be saved for the bargaining table?
Holding Down The Costs
- Try to negotiate an expedited or slimmed down procedure that avoids the need for transcripts or briefs. This saves time as well as money.
- Arrange for the hearing at the employer's offices or union hall rather than some fancy hotel.
- Don't use outside lawyers. Local officers and the UE organizer who works with the local know more about the contract, the practices, and the facts of working life than any lawyer. In those …
- Try to negotiate an expedited or slimmed down procedure that avoids the need for transcripts or briefs. This saves time as well as money.
- Arrange for the hearing at the employer's offices or union hall rather than some fancy hotel.
- Don't use outside lawyers. Local officers and the UE organizer who works with the local know more about the contract, the practices, and the facts of working life than any lawyer. In those rare cas...
- AND BEWARE EVEN WHEN WE WIN!
