61
6
GRIEVANCES AND
ARBITRATION
SUMMARY
With the establishment of a collective bargaining agreement, the broad guidelines of
labor/management relations are set down. What follows is the often more involved task of applying
and interpreting these general principles. It is important to keep in mind that labor relations is a
day–to-day issue. Two mechanisms for resolving issues in a peaceful and orderly manner are the
grievance procedure and arbitration. They are decidedly more attractive ways to resolve conflict than
the chaotic and disruptive alternatives of strikes and lockouts.
The grievance procedure allows management and labor to interpret and apply the contract
within a system of specific stages and time limits. It is a personalized process in which the
participants in an enterprise decide its labor relations issues. Often these individuals help to
negotiate the collective bargaining agreement and are better able to react to particular
circumstances and to judge the impact of a decision upon industrial relations. The grievance
procedure often produces compromise and is a most useful and efficient means of contract
enforcement.
This bilateral arrangement helps prevent small issues from becoming major areas of
contention. A better climate for both management and labor can be attained. A tribute to its efficacy,
and the sincerity of the participants, is the fact that the vast majority of application and
interpretation problems are solved at the grievance procedure level.
presented with all the relevant facts and evidence bearing upon the case. The method of selecting the
arbitrator is specified in the contract. In most instances, the choice is made on an ad hoc basis from
names supplied by both governmental and private agencies. Some collective bargaining agreements
opt for the appointment of permanent arbitrators. Both the ad hoc and permanent methods of
selection have advantages and disadvantages.
Although arbitration is an efficient and fair procedure, it does have some problems. The costs
are high, and the time delays often produced cannot be justified. Several solutions are being offered
today to meet these criticisms. One relatively new procedure is mini, or expedited, arbitration. With
this approach, a hearing is scheduled very soon after an appeal, and a decision rendered sometimes
as quickly as 48 hours after the hearing. Only the more routine or simple cases can be handled in
this manner, but it has proven successful in the steel industry and elsewhere. Another alternative
described in the chapter is that of grievance mediation.
True/False # 1
1.
The signing of a collective bargaining agreement effectively brings to a close
2.
The administration of a labor agreement normally involves more time than its
4.
The typical grievance procedure allows for the participation of only management
6.
In order to insure the fair resolution of a grievance, no time limits are required in
7.
Since the same management and union personnel who negotiated the agreement
often participate in the grievance procedure, a flexible application of the contract is
8.
The flexible and personalized character of the grievance procedure often allows for
10.
The sole purpose of the grievance procedure is to determine which side in the conflict
11.
It is wise for the union to bring any and all questions to the grievance procedure,
even those without merit, in order to assure that all its rights are upheld under the
12.
The vast majority of problems as to interpretation and application of the contract are
13.
The call for arbitration can sometimes involve a political power play on the part of
14.
At present, less than 50 percent of all labor agreements in the United States provide
63
16.
The Federal Mediation and Conciliation Service has reported that its arbitration
17.
In 1957, the U.S. Supreme Court ruled that an employer may refuse to arbitrate
unresolved grievance disputes, even when the labor agreement contains an
18.
In the Warrior and Gulf Navigation case, the Supreme Court held that the courts
will not decide that a dispute is not arbitrable unless the parties have expressly
19.
As a result of the Warrior and Gulf Navigation case, private arbitrators may not
20.
The Supreme Court in the American Manufacturing case ruled that a judge may
hold a grievance to be nonarbitrable if he believes it to be completely worthless or
21.
The decision of the Supreme Court in the Enterprise Wheel and Car Corporation case
22.
Taken as a unit, the Supreme Court’s rulings in the Trilogy cases have done little to
23.
The decision in Alexander v. Gardner-Denver reaffirmed the rule that the
arbitrator’s decision is final and binding, and under no circumstance subject to
24.
In Anchor Motor Freight, the Supreme Court ruled that the arbitrator’s decision is
subject to reversal by a federal court when a union does not provide fair
25.
The decisions in Gardner-Denver and Anchor Motor Freight should not be viewed as
26.
In the McDonald case, the Supreme Court strengthened the role of private
arbitrators in labor relations by ruling that all unfair labor practice issues are solely
27.
There is almost no approval by management and labor for the use of arbitration to
28.
Arbitration and grievance procedures have done virtually nothing to prevent chaos
31.
Arbitration decisions are final and binding; therefore quite different from the
32.
It is usually the responsibility of the arbitrator to gather all the information,
33.
Arbitration hearings are normally less formal than court proceedings, and more
34.
The same rules of evidence apply to an arbitration hearing as apply in a court of law.
35.
In most cases the arbitrator has prior knowledge of the facts, evidence, and issues of
36.
The arbitrator, unlike the management and the union, is never bound by the
37.
When contractual language is vague or subject to legitimately differing
38.
Arbitrators generally recognize that past practice should not be used to restrict
39.
In spite of changing conditions, and in the absence of specific contractual language,
past practice is normally used to prevent management from altering work
assignments, work loads, job assignments, and the number of workers needed on the
40.
In order to preserve order, maintain fairness, and insure balance, the wise arbitrator
should compromise or “split” his or her decisions when several cases are at issue.
41.
Unless unusual conditions are involved, the arbitration decision should be forwarded
42.
In discharge cases, the arbitrator’s decision should be rendered more promptly than
43.
Although not technically required to do so, most arbitrators write an opinion
44.
Under some labor agreements, the Federal Mediation and Conciliation Service or the
American Arbitration Association have the authority, in certain instances, to select
45.
The Federal Mediation and Conciliation Service may not only aid in the selection of
46.
The chief advantage of ad hoc selection of the arbitrator is that it assures
47.
The major advantage of the permanent selection method is that the parties tend not
48.
The FMCS and the AAA direct that an arbitrator’s decision is due 60 days after the
49.
The primary value of mini arbitration is the sharp reduction in the time and cost of
True/False # 2
1.
Although a collective bargaining agreement does not resolve all issues of
2.
The source of many administrative problems in a labor agreement is the language of
3.
Practically every provision in a collective bargaining contract can be the basis for
4.
Because very few grievances are settled in the first two steps of the grievance
5.
Because specific contract language is involved in most grievances, compromise is not
6.
All collective bargaining agreements provide the same number of steps in the
8.
An arbitrator may rule a grievance nonarbitrable (and refuse to inquire into the
9.
In the interests of justice, those who negotiate a labor agreement (both labor and
10.
The dividing line between “allowable” and “prohibited” under a collective bargaining
11.
How a decision on a grievance might affect the union leadership is never a
12.
The grievance procedure should be viewed as a means of obtaining a better climate
13.
One positive effect of grievances being resolved at the lower steps is that it helps
15.
The final step in the grievance procedure provided for in most labor agreements is
16.
The recent decrease in the number of arbitration cases is at least partly attributable
18.
The basic result of the decisions in the “Trilogy” cases was that the integrity of
19.
An important outcome of Warrior & Gulf was that, though the court may direct
20.
In American Manufacturing, the Supreme Court ruled that it is exclusively up to the
21.
The significance of Enterprise Wheel & Car Corporation is that unions and
22.
Under Enterprise Wheel & Car Corporation, a judge may set aside an arbitrator’s
23.
Alexander v. Gardner-Denver involved a black employee who felt he had been
discharged for racial reasons in violation of Title VII of the Civil Rights Act, not for
24.
By 1981, the Supreme Court had decided, through two cases, that an arbitrator’s
decision is not “final and binding” when the issue falls within the scope of any
25.
In McDonald, the Supreme Court ruled that an employee’s claim based upon
26.
The courts will not vacate a private arbitrator’s award when it conflicts with public
27.
In Collyer Insulated Wire, the Supreme Court reversed a ruling by the NLRB and
decided that a grievance containing elements of unfair labor practices must be heard
28.
Misco limited the federal courts’ authority to overrule an arbitration award on the
basis of public policy to those instances where that public policy was well defined
29.
Though arbitration provisions are common, either party may refuse to incorporate
31.
If a union and employer choose to mediate a grievance, either side is completely free
32.
One of the benefits of arbitration is that an unfair portion of the labor contract may
33.
Like jury trials, arbitration cases can often be decided on the basis of emotional
34.
When past practice and clear-cut contractual language conflict, past practice should
35.
In addition to evidence and contractual language, an arbitrator must be charitable
36.
Though important, honesty and integrity alone do not make a good arbitrator. Also
37.
The wise arbitrator will bend over backward to permit evidence that may or may not
40.
Both the American Arbitration Association and the Federal Mediation and
41.
Parties to an arbitration dispute are required by law to select an arbitrator that
appears either on the roster of the American Arbitration Association or the Federal
42.
The permanent arbitrator is used most frequently when a management has a
43.
As in any judicial setting, one arbitrator is bound by another’s decision in the
44.
The major criticisms leveled against arbitration are the high costs involved and the
time lag between a request for arbitration and the time when a decision is actually
45.
The Federal Mediation and Conciliation Service has reported that in recent years, on
the average, more than 250 days elapsed from the time the parties requested a panel
46.
To avoid delays in the arbitration process, labor agreements are increasingly
47.
Employers and unions who agree to mini-arbitration often agree to use the services
48.
If mini-arbitration is agreed to in the labor agreement, neither party may demand
49.
The first step in a grievance mediation procedure is for the arbitrator, after the
hearing, to seek first to assist the parties in reaching a mutually satisfactory
50.
An advisory opinion issued by a mediator-arbitrator during a grievance mediation
Multiple Choice # 1
1. The steps in processing a complaint through the grievance procedure
2. The local character of grievance procedure personnel serves to make this contract-enforcing
technique
3. In addition to being orderly and efficient, the grievance procedure can be regarded as a
means for
4. The vast majority of problems that arise in interpreting and applying the contract are
5. At present, the percentage of labor agreements in the United States providing for arbitration
as the final step in the grievance procedure is
6. Since the 1930s, the percentage of labor agreements providing for arbitration has
7. In 1957, the Supreme Court ruled that an employer may
8. In the Warrior and Gulf Navigation case, the Supreme Court held that the courts will not
decide that a dispute is not arbitrable unless
9. As a result of the Warrior and Gulf Navigation case
10. The essential outcome of the American Manufacturing case is that
11. The Supreme Court decision in the Enterprise Wheel and Car Corporation case demonstrates
that
12. The Trilogy cases, as a unit, served mainly to establish the
13. The ruling that an arbitrator’s decision is not final and binding when Title VII of the Civil
Rights Act is involved comes from
14. In the Anchor Motor Freight case, the Supreme Court held that an arbitrator’s decision is
subject to reversal by a federal court when
15. The NLRB ruled in the Collyer Insulated Wire case that it would defer some cases to
arbitration even though they
16. It is an important fact that in the United States the system of arbitration is
17. The typical arbitration hearing
18. The rule of past practice should normally not be used by an arbitrator to prevent
management from changing
19. Which of the following is not a responsibility or personal quality needed in an arbitrator?
20. In discharge cases, the interests of the parties and the grievant may be best served by a
decision rendered in about
21. Which of the following is not a method for the selection of an
arbitrator?
22. Mini arbitration has been adopted by some employers and unions as a way to
23. The mini arbitration plan employed by the steel industry provides that a hearing must be
held
24. The steel industry’s mini arbitration plan permits no transcripts or briefs and requires the
decision to be made within
Multiple Choice # 2
1. How to apply the labor agreement
2. The day-to-day job in labor relations is to
3. The grievance procedure
4. Failure to comply with time limits in the grievance procedure
5. Which of the following cannot happen in a grievance procedure?
6. Which of the following would not be characterized as an advantage to lower-level settlement
of grievances?
7. In a labor agreement, arbitration is invariably referred to as
8. Comparing the situation in 1986 to that existing since then, the number of FMCS arbitration
awards has
9. Which of the following is not one of the “Trilogy” cases?
10. A significant ruling in Warrior & Gulf was that
11. Reinforcing Warrior & Gulf, the Supreme Court ruled in AT&T Technologies v.
Communications Workers that
12. Enterprise Wheel & Car Corporation established that
13. Lincoln Mills dealt with
14. One potential result of Anchor Motor Freight could be that
15. The McDonald case dealt with alleged
16. In Misco, the Supreme Court dealt with
17. The arbitrator in handing down a decision
18. When past practice and clear-cut contractual language conflict
19. When hearing a group of grievances together, the arbitrator
20. Which of the following is likely to be part of the arbitrator’s case load in the years
immediately ahead?
21. Perhaps the chief disadvantage of the ad hoc method of selecting arbitrators is
22. Which is not a legitimate method of cutting arbitration costs?
23. Grievance mediation differs from arbitration in that
Essay Questions
1. Discuss in detail the Supreme Court decisions in the Trilogy cases, emphasizing their
importance in strengthening the system of private arbitration in the United States. Have
recent developments served to weaken this system?
74
2. The two basic methods of selecting an arbitrator are the ad hoc and the permanent methods.
Define the characteristics of each approach with special attention to their relative
advantages and disadvantages.
3. Discuss the important characteristics of a grievance procedure.
4. The American system of arbitration has proven to be an effective and orderly method of
settling unresolved conflicts in labor relations, but any system has problems. What are some
of the criticisms of and problems with the arbitration procedure? What are some of the
solutions?
5. Suppose you are hired as a consultant by a management and union because their grievance
procedure has not been working well. What would you look for to determine why this has
occurred, and what would you recommend to improve the procedure?
6. The strength of the grievance procedure in American labor relations is its flexibility. Explain
what is meant by flexibility.
7. Describe the characteristics of arbitration hearings. Include in your description the roles of
the people involved. Compare and contrast a typical arbitration hearing with a court
proceeding.
8. “The signing of the collective bargaining agreement does not mean that union-management
relations are terminated until the next negotiation over contract terms.” What does this
statement mean? As part of your answer, be sure to demonstrate your understanding of what
the contract is meant to do—and what it cannot do.
9. Why are arbitrators sometimes placed in the position of scapegoat, and what—if anything—
can they do about this?
Term Paper Topics
1. An appraisal of procedures to expedite the arbitration process: Mini arbitration and
grievance mediation.
2. Legal issues in the private arbitration process.
3. Past practice and arbitration decisions.
4. Grievance procedure problems and practices in a particular industry (sports, the airlines,
teaching, automobiles, etc.).
5. Effective use of the grievance procedure for settlement of disputes.
6. How arbitrators view their profession (personal interviews, of course, could make this a more
interesting assignment than strictly second-hand research).
7. How arbitrators are selected.
8. The history and future of the labor arbitration process.