Final

ILR Press

Chapter Title: Conflict Resolution at the Workplace Book Title: An Introduction to U.S. Collective Bargaining and Labor Relations

Book Author(s): Harry C. Katz, Thomas A. Kochan and Alexander J. S. Colvin

Published by: Cornell University Press; ILR Press

Stable URL: https://www.jstor.org/stable/10.7591/j.ctt1vjqr3z.17

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292

12

BASIC PRINCIPLES

This chapter focuses on the resolution of the confl icts between managers and employees that commonly arise in the workplace. In unionized settings, this involves resolving confl icts about contract administration below the level of formal contract negotiations.

Collective bargaining agreements in the United States are elaborate and detailed documents. The existence of such extensive labor contracts led to the need for an orderly way for settling confl icts over interpretations of contract language.

The principle that “management acts and the union reacts” or, put another way, “it is management ’ s job to manage and the union ’ s job to grieve” is engrained in U.S. collective bargaining. This has led to a reliance on grievance and arbitration procedures as mechanisms to resolve confl icts that arise at in unionized workplaces. The bulk of this chapter discusses how grievance and arbitration procedures operate.

In nonunion settings, the employer must consider how to resolve the workplace confl icts that will inevitably occur. In recent years, employers of nonunion workplaces have increasingly adopted various mechanisms for resolving disputes, improving communication, and solving problems. Growing concern about the impact of employment litigation is a major reason for the development of nonunion dispute resolution. Such lawsuits have helped inspire the controversial expansion of mandatory arbitration procedures for resolving legal claims. Thus, this chapter also examines nonunion dispute resolution procedures and the debates over their role in industrial relations.

THE GRIEVANCE PROCEDURE

The grievance procedure specifi es a series of steps that are to be taken to resolve a worker ’ s complaint that management has not followed the terms of the collective bargaining agreement. The steps found in a typical procedure are outlined in Box

Confl ict Resolution at the Workplace

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Confl ict Resolution at the Workplace 293

BOX 12.1 Steps in a Typical Grievance Procedure

Step 1 The union steward and the employee discuss the problem informally with

the employee ’ s supervisor. The union steward and the employee decide if the problem has been resolved

or, if not resolved, whether a contract violation has occurred and whether to proceed with a formal grievance.

Step 2 The grievance is put in writing and submitted to the designated line

manager. The union steward and a management representative meet and discuss the

grievance. Management ’ s response is put in writing. A member of the industrial relations

staff may be consulted at this stage. Step 3

The grievance is appealed to top-line management and industrial relations staff representatives, who meet with higher-level local or national union offi cers to discuss the grievance and attempt to negotiate a resolution.

Management ’ s response is put in writing. Step 4

The grievance is appealed to arbitration for a fi nal and binding decision by a neutral labor arbitrator.

12.1 . Each succeeding step in the decision-making process involves a higher level of the union and management organizations. The fi nal step in almost all grievance procedures in unionized settings involves a hearing of the dispute and a fi nal binding judgment by an arbitrator.

Most often the grievance procedure comes into play when an employee has a complaint about the actions of a supervisor. Below we trace how an employee complaint makes its way through the typical grievance procedure.

Step 1: Step 1 of the procedure outlined in Box 12.1 gives the employee and his or her supervisor the opportunity to resolve the employee ’ s complaint by talking about the problem. The supervisor might be unaware that there is a problem and oral discussion might quickly resolve the issue. At this point, the employee ’ s union steward might help the employee as he or she brings the issue to the attention of the supervisor.

Step 2: If the grievance (complaint) is not resolved in these discussions, the employee can choose to drop the matter or proceed to step 2, where the grievance is put in writing. In step 2, the union steward meets with a

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294 Part IV. The Workplace Level of Labor Relations

management representative and management eventually writes a response. The process of putting the grievance and management ’ s response in writing gives the parties the opportunity to formally make their cases, and this often serves to clarify exactly what is in dispute. At this step, many grievances are resolved or the grieving party drops his or her complaint.

Step 3: Step 3 in the grievance procedure involves top-line management, industrial relations staff, local union offi cers, and possibly national union staff. The involvement of higher-level union and management staff consumes valuable time and resources, and for this reason a union ’ s decision to press a grievance to the third step is not usually taken lightly.

Step 4: If the grievance has not been resolved at earlier steps, it can be appealed to arbitration for a binding decision in step 4. It is the union and not the employee that decides whether to appeal a grievance to arbitration. Court decisions gave unions this power on the grounds that it is the union that creates and “owns” the grievance procedure.

Reasons Why Grievances Are Filed

Employees commonly fi le a grievance when they think management is not fairly living up to the collective bargaining agreement. The grievance procedure provides a mechanism for workers to air their displeasure with management ’ s actions, to change management ’ s behavior, or to receive some form of compensation for management ’ s actions.

Disagreements about employee discipline are a common source of grievances. Collective bargaining agreements commonly give management the right to discipline employees. Contracts often outline certain actions that can lead to discipline, such as repeated absenteeism or failure to follow a direct order from a supervisor. An employee might fi le a grievance against a disciplinary action taken by manage- ment either because the employee contests management ’ s claim that the employee did something wrong or because the employee believes that the disciplinary action that was imposed was too harsh for whatever mistake the employee made.

When labor and management negotiate the collective bargaining contract, they try to cover the major issues and write language that will guide future behavior. However, the contract does not specify what is to happen under all circumstances. It would be impossible and too costly for negotiators to write contractual language that covers any but the most common events. Thus, the parties also turn to the grievance procedure as a way of resolving issues that the labor contract does not cover explicitly.

Many collective bargaining agreements, for example, specify that supervisors are not allowed to perform work that is commonly performed by someone in the bargaining unit. Unions favor this clause as a way of keeping jobs for union members and to prevent management from circumventing the terms of the contract by moving work out of the bargaining unit. When new technology is introduced at a plant, it often changes the duties workers perform and adds new types of work. Is the new work still in the bargaining unit or can it be performed by a supervisor? It would be extremely cumbersome for labor and management to

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Confl ict Resolution at the Workplace 295

include language in the labor agreement specifying in detail what is to happen in every such case. Instead, the parties use the grievance procedure to resolve disputes that arise over this issue.

In addition, things frequently happen that were never anticipated by the parties when they were negotiating the labor agreement. What form of compensation, for example, should workers receive if they are sent home after a power outage forces the closing of a plant in the middle of the day? Should employees be paid for a full day ’ s work in such a case? Should the amount of compensation vary, depending on how much of the day the employees worked before being sent home? When the labor contract does not include language that covers this type of occurrence and employees are upset by the compensation management decides to provide, the employees might turn to the grievance procedure to settle the matter.

Filing grievances can also serve other purposes. Employees may fi le grievances as a way of demonstrating their concern about issues that are not addressed in the collective bargaining agreement. For example, employees might be concerned about workplace injuries such as repetitive strain injuries from the way they have to perform their jobs and may express their concern by fi ling grievances over the issue. In these sorts of cases, the grievance procedure can serve the valuable function of warning management about problems that might otherwise be ignored.

Employees and their union also might use the grievance procedure as a tactical pressure device. Filing grievances over an issue can serve, for example, to rally employee interest in bringing the issue to the bargaining table in the next contract renewal negotiation. In this sort of case, the union may know that fi ling grievances will not lead to immediate changes in management ’ s behavior. However, grievances will put pressure on management and thereby increase the union ’ s bargaining leverage.

THE HISTORICAL EVOLUTION OF GRIEVANCE ARBITRATION

Arbitration is the common device stipulated in labor contracts to resolve grievances that are not settled in earlier steps (see step 4 in Box 12.1 ). Arbitration is a quasi-judicial procedure in which a third party settles a dispute by issuing a binding judgment. The use of arbitration to settle grievances that arise during the term of a collective bargaining is referred to as grievance (or rights) arbitration.

Arbitration developed early in the U.S. industrial relations system. Arbitration of minor disputes over the interpretation of agreements, for example, was mentioned in the United States Industrial Commission Report of 1902. 1 Before World War II, grievance procedures ending in binding arbitration were common in the clothing and anthracite coal mining industries.

The Spread of Arbitration

It took the strong advocacy of the national War Labor Board (WLB) during World War II for grievance arbitration to become a common practice across

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296 Part IV. The Workplace Level of Labor Relations

unionized industries. In many of the thousands of disputes it handled, the board encouraged the parties to include an arbitration clause in their bargaining agreement, and in some cases the board required it. Arbitration served as an alternative to strikes and other types of industrial action for resolving workplace confl icts. This was an important consideration in the context of a wartime economy where work stoppages were particularly costly.

The Taft-Hartley Act of 1947 encourage the use of grievance arbitration. Section 203(d) of the act states: “Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising out of the application or interpretation of an existing collective bargaining agreement.” The courts interpreted this provision as indicating that public policy supported grievance arbitration, which was the most common settle- ment method parties agreed to use.

Court Encouragement of Arbitration

A series of Supreme Court decisions known as the Steelworkers’ trilogy encour- aged the use of arbitration and insulated many arbitration awards from judicial review. These cases also gave grievance arbitration a protected status. 2

The Steelworkers’ trilogy decisions from 1960 are summarized in Box 12.2 . These three decisions stated that

(1) the courts should rule only on whether a dispute can be arbitrated, they should resolve any doubts about such questions by ruling in favor of arbitration, and they should not consider the merits of a grievance when deciding whether a case can be arbitrated;

(2) the parties should view arbitration as the quid pro quo for giving up the right to strike and except for issues that are specifi cally excluded from the arbitration clause, all disputes arising out of contract administration should be resolved by arbitration; and

(3) the courts should not review the substantive merits of an arbitration decision but should confi ne their review to whether due process procedures were followed or whether the arbitrator exceeded his or her authority.

Judicial Deference to Arbitration

The Steelworkers’ trilogy cases established the principle that the courts would not review disputes that were arbitrable. Subsequent Supreme Court decisions continued that basic principle and added some modifi cations (see Box 12.2 ). In the Collyer decision of 1971, for example, the Court deferred to an arbitrator to decide whether an employer had violated the obligation to bargain in good faith when the employer unilaterally changed certain wage rates and job duties. This ruling gave an arbitrator the responsibility of ruling on an unfair labor practice issue. In the Olin decision of 1984, the courts substantially broadened the unfair labor practice issues that arbitrators would decide (also see the United Technologies decision of 1984). Some of the other court cases summarized in Box 12.2 affected aspects of arbitration that do not involve judicial deference to arbitration.

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Confl ict Resolution at the Workplace 297

BOX 12.2 Key Court and Administrative Decisions that Affect the Conduct of Grievance Arbitration

Year Case Decision

1957 Textile Workers v. Lincoln Mills Courts may enforce arbitration awards. 1960 “Steelworkers’ trilogy”:

1. Steelworkers v. American Manufacturing Co. , 363 U.S. 564 (1960)

Courts should determine only arbitrability, i.e., whether the issue is covered by the contract, and should not decide the merits of a case. When arbitrability is in doubt, the case should be sent to arbitration.

2. Steelworkers v. Warrior Gulf and Navigation Co. , 363 U.S. 574 (1960)

Disputes over contract terms are assumed to be arbitrable unless they are specifi cally excluded. The courts view arbitration as the quid pro quo for giving up the right to strike during the term of the contract.

3. Steelworkers v. Enterprise Wheel and Car Corp. , 363 U.S. 593 (1960)

Courts should not review the substantive merits of the arbitrator ’ s decision as long as the arbitrator ’ s award is based on the content of the agreement.

1970 Boys Markets, Inc . v. Retail Clerks, Local 770 , 389 U.S. 235 (1970)

Courts may issue an injunction against a union that forces it to refrain from violating a no-strike clause or when an issue is covered by an arbitration clause in the contract.

1971 Collyer Insulated Wire and Local Union 1098 , 192 NLRB 837 (1971)

The NLRB will defer to arbitration disputes when the issue could be decided either through arbitration (because it is covered by a clause in the bargaining agreement) or by an NLRB ruling (because the grievance alleges an unfair labor practice).

1976 Hines v. Anchor Motor Freight, Inc. , 424 U.S. 554 (1976), preceded by several other key cases, especially Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944) and Vaca v. Sipes , 386 U.S. 171 (1967)

The courts should not sustain an arbitration award when the union has violated its duty to represent the grievant fairly. Federal courts will decide suits of this nature.

1983 Bowen v. United States Postal Service , 103 U.S. (1983)

A union may be held liable for a portion of an award to an employee if the union has violated its duty of fair representation.

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298 Part IV. The Workplace Level of Labor Relations

Year Case Decision

1984 Olin Corporation , 268 NLRB 86 (1984)

This NLRB decision expanded the Collyer doctrine of deferral to arbitration of disputes involving unfair labor practices. The NLRB will defer to an arbitrator ’ s decision unless the arbitrator ’ s award is “clearly repugnant” to the law. The NLRB retained the right to decide whether an arbitrator adequately considered the facts that would constitute an unfair labor practice.

1984 United Technologies , 268 NLRB 83 (1984)

This NLRB decision further expanded the Collyer doctrine of deferral to arbitration of disputes that are brought to the board before arbitration that involve statutory rights and are covered by a collective bargaining contract.

1991 Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20 (1991)

Statutory claims can be arbitrated without resort to the judicial forum. Arbitration of a statutory claim, however, does not forgo the substantive rights afforded by the statute.

2001 Circuit City Stores v. Adams , 532 U.S. 105 (2001)

The court ruled that according to the Federal Arbitration Act, employment disputes must be settled exclusively by fi nal and binding arbitration if so dictated by the employment contract. Only interstate transportation workers are excluded.

2002 Equal Employment Opportunity Commission v. Waffl e House, Inc. , 534 U.S. 279 (2002)

Limits the decision in Circuit City . The court ruled that the EEOC still has the right to pursue judicial relief for victims of employment discrimination, even if the individuals signed an agreement to settle all disputes through binding arbitration with the employer.

2009 14 Penn Plaza v. Pyett , 556 U.S. 247 (2009)

The court ruled that a union-negotiated arbitration clause in a collective bargaining agreement can require individual employees to send statutory employment rights claims to arbitration instead of going to court.

2011 AT&T Mobility v. Concepcion , 563 U.S. 333 (2011)

The court ruled that waivers of the right to bring a class action contained in an arbitration agreement are enforceable.

2012 D. R. Horton, Inc. , 357 NLRB 184 (2012)

The NLRB ruled that class-action waivers in employment arbitration agreements violate the right of employees to engage in concerted activity’ under section 7 of the NLRA.

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Confl ict Resolution at the Workplace 299

Over time, grievance arbitration procedures have evolved from a clinical approach to a more judicial approach. The WLB had advocated the clinical approach, and this approach was frequently used during the early postwar years. 3 The clinical approach emphasizes mediation of disputes, informal procedures, and arbitrator discretion in helping the parties develop a working relationship and consistent policies for interpreting and administering a contract.

In the 1950s, as the environment for collective bargaining became more structured and a body of past precedents grew, the arbitrator ’ s scope of discretion narrowed. Both unions and management began to demand a more judicial approach to arbitration. The judicial approach is more formal and legalistic. The clinical model of arbitration may have fi lled a void in an otherwise unstructured environ- ment, but as the parties formalized their internal policies, they turned to arbitrators only in disputes where their differences were clearly defi ned by the contract and the precedents that had arisen.

Thus, although modern grievance arbitration is still considerably more informal than court proceedings, it has come to rely on the use of formal rules of evidence, the examination and cross-examination of witnesses, submission of written briefs and post-hearing briefs, and written transcripts. The heavy formality of the grievance arbitration procedure has led some parties recently to search for alternative dispute- resolution procedures, a subject we discuss in more detail later in this chapter and in the next chapter.

THE FUNCTIONS OF GRIEVANCE PROCEDURES AND ARBITRATION

Grievance and arbitration procedures serve the needs of three separate constituencies—labor, management, and society.

Employee Interest in Due Process and Fairness

The grievance and arbitration procedures serve the interests of workers by delivering industrial justice and by protecting workers who use the procedure from recrimina- tion for having exercised their rights. When workers lose confi dence in the effi cacy of these procedures, they may turn to other potentially more costly and disruptive mechanisms to provide due process. Thus, management often agrees to grievance and arbitration procedures to provide employees with due process because of the potential high costs of the alternatives.

Employer Interest in Labor Peace

Employers are attracted to the grievance and arbitration procedures because they reduce the likelihood that disputes that occur during the term of a labor contract will lead to stoppages in production. In exchange for accepting third-party arbitration of grievances, management commonly gains union acceptance of a clause that eliminates the union ’ s right to strike over an issue that is covered by the grievance and arbitration clause. The labor contract between General Motors and the UAW, for example, contains the following language:

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300 Part IV. The Workplace Level of Labor Relations

During the life of this agreement, the Union will not cause or permit its members to cause, nor will any member of the Union take part in any sit-down, stay-in or slow-down, in any plant of the Corporation, or any curtailment of work or restriction of production or interference with the production of the Corporation. The Union will not cause or permit its members to cause nor will any member of the Union take part in any strike or stoppage of any of the Corporation ’ s operations or picket any of the Corporation ’ s plants or premises until all of the bargaining procedure as outlined in this Agreement has been exhausted, and in no case on which the Arbitrator shall have ruled. 4

The strong support of the Supreme Court for arbitration in the Steelworkers’ trilogy was based in part on the fact that management ’ s agreement to arbitrate grievances is typically the quid pro quo for a union ’ s agreement to include a no-strike clause in contracts.

Some labor agreements exclude particular issues from arbitration and instead allow the union to strike over unresolved grievances about these issues. Production standards (rules governing the pace of work) and health and safety issues are sometimes designated as nonarbitrable. For example, when issues involve health or safety, it may be impractical to require employees to follow management ’ s orders and then wait for arbitration to settle disputes over the appropriateness and fairness of those orders. Thus, some contracts allow workers to strike over health and safety issues.

Joint Interests in Continuity and Consistency

Another function the grievance and arbitration procedures serves is that it addresses the common interests of labor and management. As Neil Chamberlain and James Kuhn have noted, labor and management have a mutual interest in achieving continuity and consistency in the application of a collective bargaining agreement. They both also benefi t from procedures that allow them to be fl exible as they address unforeseen developments and meet the unique needs of different groups and individuals. 5

Finding the appropriate balance between uniformity and fl exibility is a key challenge in administering the employment relationship. It is a particular challenge for grievance procedures and arbitration.

Society ’ s Interests in Industrial Peace and Workplace Democracy

Grievance and arbitration procedures serve the interests of society by preserving industrial peace during the term of the contract, by keeping industrial disputes out of the courts or regulatory agencies, and by ensuring that unions and employers comply with public policies governing employment. As we will show, this set of public functions is becoming increasingly complex.

As the Supreme Court articulated in the Steelworkers trilogy of cases, collective bargaining between labor and management establishes a form of democratic governance of the workplace. In this vision of workplace democracy, arbitration of grievances by neutral labor arbitrators serves a function similar to that of the

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Confl ict Resolution at the Workplace 301

courts in providing independent adjudication of legal disputes. As Justice Douglas argued, “The grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties.” 6

HOW ARBITRATION WORKS

Grievance arbitration systems have several core components. The specifi c design and operation of these components varies across collective bargaining agreements, but the basic role of the key components is similar.

The Components of Arbitration

The core of the arbitration procedure is a hearing in which the labor and manage- ment representatives present their positions on the issue in dispute to an arbitrator. These representatives are often lawyers, but others also act as representatives in arbitration, particularly on the union side. At some point after this hearing, the arbitrator announces a judgment on the issue. This decision is binding on the parties. Before or after the hearing, the parties sometimes submit briefs to the arbitrator. Thus, arbitration has three components: prehearing briefs , the hearing, and the arbitrator ’ s decision .

Prehearing Briefs

Management and union representatives can submit prehearing briefs to the arbitrator. In these briefs, the parties can present their views of the issues and describe the evidence that supports their position. Briefs vary in length; sometimes they are long documents that are similar to legal briefs presented in legal cases.

In some cases, the parties jointly present prehearing stipulations to the arbitrator. A stipulation is an agreement between the parties about one or more of the facts or issues in dispute. For example, the parties might stipulate that an employee was absent from work, but ask the arbitrator to decide what was the appropriate penalty for being absent. Briefs and stipulations can make it easier for the parties in the arbitration hearing to quickly focus on the evidence and issues in dispute.

The Arbitration Hearing

In the arbitration hearing, the parties present their positions and evidence to support their cases. Hearings usually start with opening statements by union and management representatives. In disciplinary cases, management will commonly be asked to present their statement fi rst.

Union and management representatives then present evidence to support their cases. Such evidence might include witnesses who observed particular events. If an employee is charged with committing an act that violates company policy,

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302 Part IV. The Workplace Level of Labor Relations

such as hitting a supervisor, for instance, management might call as a witness someone who saw the worker and supervisor interacting. Unlike what happens in court hearings, there are no rules that exclude certain types of evidence in arbitration. However, the arbitrator will use his or her judgment about how much weight to give the evidence. For example, an arbitrator will generally give much greater weight to a fi rsthand account of an incident from a witness who saw what happened than to a secondhand account.

Evidence that documents past behavior by the employee or the company is critical in many arbitration hearings. The customs of a company and past practices in the plant are important criteria as an arbitrator makes a decision.

The hearing will typically end with closing statements by each side in which they summarize the key aspects of their case and their supporting evidence. The testimony given will sometimes lead union or management representatives to alter their arguments during the course of the hearing. Thus, it is not unusual for the parties’ closing statements to focus on issues and evidence that differ substantially from the issues they raised in their opening statements.

The hearing does not bring the presentation of evidence and arguments to a close. The parties can present their views in a post-hearing brief, and they often do this in cases in which the issues in dispute are highly technical or complicated. Although the use of prehearing and post-hearing briefs may help the arbitrator resolve complex issues, they also add to the length and cost of arbitration.

The Arbitration Award

The arbitrator ’ s decision, which is commonly known as the arbitration award is announced sometime after the hearing. Some labor contracts stipulate time limits for these awards. The arbitrator ’ s award can be written or oral, depending on the language in the labor agreement and the preferences of the arbitrator. Although arbitrators tend to follow similar procedures and look at similar kinds of evidence, the preferences of individual arbitrators often play an important role in shaping their awards.

In the award, the arbitrator commonly states the issues and facts in the case. The arbitrator also summarizes the contentions and claims the parties have made in the hearing or in briefs. The arbitrator might discuss the merits of each side ’ s evidence and claims. Of course, the most important part of the award is the section that outlines the judgment the arbitrator has reached on the dispute. The arbitrator can uphold or deny the grievance and has substantial discretion in fashioning a remedy to the dispute.

In a grievance case in which a fi rm has discharged an employee, for example, the arbitrator can deny the grievance and allow the discharge to stand or he or she can uphold the grievance and order the employer to reinstate the employee. If reinstatement is ordered, the arbitrator can order the company to pay the employee the full wages that have been lost due to the discharge. The arbitrator also could fashion a compromise settlement to such a case by ordering reinstatement but not ordering any back pay. Or he or she might order some other remedy.

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Confl ict Resolution at the Workplace 303

The grievance-arbitration procedure gives arbitrators substantial discretion to fashion any remedy he or she believes is appropriate.

Arbitrators commonly see their task as resolving the grievance. They do not commonly add substantial punitive penalties to their decisions. Thus, in the hypothetical discharge case mentioned above, the best the employee could do is gain back the job, any back pay, and any lost rights (such as seniority lost while on discharge). The arbitrator would not assess a large punitive monetary penalty against the employer.

The Arbitrator ’ s Decision Criteria

What does an arbitrator consider when deciding how to rule in a case? The next section outlines the criteria arbitrators commonly use in discipline and discharge cases. We use discipline and discharge as examples in part because these are frequent and important sources of grievances.

Discipline for Just Cause

Most labor agreements contain a clause stating that management has the right to discipline or dismiss employees only for just cause . Grievances over disciplinary actions and dismissals arise so frequently in part because labor agreements rarely defi ne just cause precisely.

In a discipline case, the arbitrator must fi rst decide if the employee actually did the act that management claims violates the labor agreement. If the arbitrator is convinced that the act did not occur, the grievance is upheld. In a case in which management alleges that an employee hit a supervisor, for example, the arbitrator would rely on available evidence (possibly the testimony of eyewitnesses) to determine if the employee did willfully hit the supervisor. If the arbitrator concludes that the act did occur, he or she must then decide if this act was a violation of the labor agreement.

Progressive Discipline

If the arbitrator concludes that the act did occur and that it violated the labor agreement, he or she must then decide whether the discipline the company imposed is appropriate. Arbitrators commonly require management to impose progressive discipline, in which the penalties increase in a stepwise fashion if there are repeated offenses. If an employee is absent one time after years of faithful service to the company, for example, an arbitrator is unlikely to uphold a penalty of discharge. Arbitrators allow severe disciplinary penalties for repeated absences, however, and want those penalties to increase as the number of absences mount. Corrective discipline is the underlying principle; that is, discipline should do more than punish. Arbitrators commonly require management to take steps to assist employees in correcting their actions and performance. The common steps in progressive discipline are issuing an oral warning, suspending the employee for some period of time, and then discharging the employee. Needless to say, when the offense the employee committed is severe, for example destroying major company property, the arbitrator might uphold immediate discharge.

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304 Part IV. The Workplace Level of Labor Relations

The Importance of Past Practice

Arbitrators commonly rely heavily on the custom and past practice of manage- ment policy as a guide as they make decisions about grievance cases. If in the past employees in a fi rm have customarily been suspended for one week for their third unexcused absence, for example, an arbitrator would not allow a different disciplinary penalty for another employee for a similar offense unless there were extenuating circumstances. As a result, in most arbitration hearings, union and management representatives present their views about what past practice has been for related cases. If a similar case has not arisen in the same fi rm, the parties (or the arbitrator) might turn to customary practice in another fi rm or industry to justify their actions.

The Impact of Public Policy Considerations in Arbitration

The role of the arbitrator is to interpret and decide grievances based on the collective bargaining agreement. The arbitrator ’ s authority comes from the agreement, and to the degree that his or her decision is based on factors that go beyond the terms of the agreement, the decision lacks this authority, which then means that it is not binding on the parties. At the same time, the expansion of employment laws since the 1960s has raised concerns about whether grievance and arbitration procedures should be responsive to the public policies that govern employee rights. Of chief concern is whether arbitration should be used to resolve claims of discrimination based on the protection of Title VII of the Civil Rights Act or whether those claims should be left to the courts to resolve. The same concern arises in claims that involve alleged violations of federal and state laws about safety and health, wages and hours, pensions, disability benefi ts, workers’ compensation, unemployment compensation, and many other regulations that may overlap or even confl ict with the provisions of the collective bargaining agreement.

The arbitration community is divided over the issue of whether arbitrators should consider the requirements of federal and state laws when deciding grievances or instead confi ne their decisions to interpretations of the rights accorded by the bargaining agreement. Those who advocate that arbitrators should stick to the bargaining agreement do so because they fear that considerations of public policy will increase judicial scrutiny of arbitration decisions and that arbitrators may make erroneous interpretations of such laws. They believe that arbitration has been widely accepted as an institution by the parties and that the Supreme Court assigned it a protected status in the Steelworkers’ trilogy precisely because arbitrators limit their decisions to issues in which they have special expertise. Thus, advocates of minimal reference to federal and state laws are ready to trade off a reduced scope of jurisdiction in arbitration for protection of the status and autonomy that the highest court in the land has afforded labor arbitration since 1960.

Those who argue that arbitrators should play a more active role in resolving claims that involve public laws do so with full awareness that the arbitrator ’ s role would shift from serving primarily the interests of the parties toward serving public policies. The central arguments in favor of this new role are that arbitration

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Confl ict Resolution at the Workplace 305

is still cheaper, faster, and more effi cient than the already overloaded judicial system. In this new role, it is argued, arbitration would remain a useful procedure for resolving disputes that arise under collective bargaining.

Who Are the Arbitrators?

The people who serve as arbitrators usually have some expertise in labor relations and the particularities of the industry in which the case arises. Some labor agree- ments provide for permanent arbitrators (“umpires”) who are designated to handle all or some fraction of the grievances that arise during the term of a contract. The American Arbitration Association (AAA) is a private organization that parties often use to facilitate the process of arbitration. The AAA maintains an active list of arbitrators and can provide rooms for holding hearings. A labor contract might stipulate that parties should turn to the AAA for a list of fi ve arbitrators and then allow each side to take turns crossing off names from the list to generate a decision about which arbitrator will hear a particular case.

Some arbitrators work at arbitration as a full-time occupation. There are also many part-time arbitrators who are also industrial relations or law school professors. Box 12.3 , provided by renowned arbitrator Arnold Zack, describes who the arbitrators are and how someone can become an arbitrator.

BOX 12.3 Who Are Arbitrators and How Can I Become One?

Virtually every collective bargaining agreement contains provisions for arbitration to resolve workplace disputes. The union agrees to continue to work while the case is being processed and the employer agrees to comply with the arbitrator ’ s decision including remedy to make whole if such a remedy is awarded. Such agreements also provide the procedures for selecting arbitrators, usually by agreeing on a single arbitrator or a revolving panel for the life of the parties’ agreement or by using the procedures of the American Arbitration Association or the Federal Mediation and Conciliation Service (FMCS) if the parties are unable to agree on an arbitrator for a pending case.

Although several thousand individual arbitrators exist in the United States, most arbitration is done by the 600 members of the National Academy of Arbitrators (NAA), who are admitted to the academy after they have heard at least fi fty cases in a fi ve-year period. Concern over getting a decision that might make the employee whole and that conforms to the terms of the contract often leads disputants to wait many months for their preferred choice among the more seasoned arbitrators instead of trying newer, less experienced arbitrators. This makes it challenging for new entrants to gain experience and accounts for the rising average age of NAA arbitrators, which is now in the mid-60s.

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306 Part IV. The Workplace Level of Labor Relations

While it is said that 90 percent of the cases are heard by 10 percent of the arbitrators, new people are always breaking into the fi eld. Parties want arbitrators with mature judgment and experience in labor-management relations that is not easy to acquire without working on the union or management side. But it is often diffi cult for partisans to gain acceptability unless they have somehow purged themselves of alleged bias by spending some time working in a neutral occupation, such as in academia or working for a neutral government agency. Some newer arbitrators have come into the fi eld by serving as interns with established arbitrators or from careers in government labor management agencies or as teachers of law, labor relations, economics, and psychology. Arbitration can hardly be an entry-level occupation for one ’ s career choice. Rather, becoming an arbitrator is more a later-in-life happening as a reward for a career of fairness in whatever role an individual plays in the labor-management fi eld. If you want to be an arbitrator, don ’ t give up your day job!

Source : Arnold Zack, arbitrator and former president, National Academy of Arbitrators

The Union ’ s Decision to Go to Arbitration

It is not a simple matter for a union to decide whether to press a grievance to arbitration. Arbitration is costly. A union might decide to drop a grievance if it believes the case is not winnable. Or a union might drop a grievance even though it thinks it can win the case if it concludes that the issue in dispute is insignifi cant and not worth the effort. A union might also decide not to bring a grievance to arbitration if it believes the issue is very important and should be brought up at the next contract negotiations. In this situation, the union might fear that winning the case in arbitration would diffuse the employee ’ s concern and remove leverage it needs to press its case in negotiations.

Conversely, a union might decide to proceed to arbitration even if it believes the case is not winnable if union offi cers feel an obligation to the grievant (maybe because the grievant has loyally supported the union over the years) and cannot convince the employee to drop the issue. The union may also feel pressure to proceed to arbitration because of fear that the employee will fi le a legal claim contesting the union ’ s decision not to go to arbitration. The union owes a legal duty of fair representation to the individual employee as it makes the decision of whether to proceed to arbitration.

The Duty of Fair Representation

In 1944, the Supreme Court held that in return for the right of exclusive rep- resentation, the union has the duty to represent all members of the bargaining unit “without hostile discrimination, fairly, impartially, and in good faith.” 7 Since then, the union ’ s duty of fair representation has become an important issue.

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Confl ict Resolution at the Workplace 307

Four related developments brought the issue of fair representation to the fore:

1. The stringency of the standards the courts use to judge whether an employee has been fairly represented by the union.

2. The willingness of individual workers to bring claims against unions for failure to represent them fairly.

3. The increase in the number of court cases that deal with this issue. 4. The resulting reluctance of unions to drop grievances of questionable

merit for fear that they will be sued for failure to represent the grievant fairly.

The U.S. Supreme Court has defi ned the duty of fair representation in a way that prohibits “arbitrarily ignoring a meritorious grievance or processing it in a perfunctory manner”; fraud, deceit, or bad-faith conduct in the handling of a grievance; and refusal to handle a grievance because of personal hostility toward the grievant. 8

In Hines v. Anchor Motor Freight, Inc. (1976; see Box 12.2 ), the court ruled that both the employer and the union were to blame for failure to handle an employee representation case fairly. 9 The case involved an employee whose discharge had been upheld in arbitration. After the arbitration award was rendered, new evidence was discovered that proved that the employee was not guilty of the offense. Both parties were charged with failure to fully investigate the facts of the case in the original procedure.

In Bowen v. United States Postal Service (1983), the Supreme Court went one step further; it made a union and a company both liable for back pay in a case in which an employee was reinstated after the union refused to take the case to arbitration. 10 The result was that the union was required to pay part of the employee ’ s lost wages even though it was the employer ’ s wrongful decision that had led to the employee being out of work.

Unfortunately, these various judicial efforts to clarify and specify the standards to be applied in cases involving the duty of fair representation have not yielded unambiguous criteria for evaluating a union ’ s performance. Although individual employees may sometimes feel that their union is not handling their grievances appropriately, there is also a danger that the threat of a lawsuit based on duty of fair representation may lead the union to take weak cases to arbitration instead of dropping the appeals. Taking unmeritorious cases to arbitration creates additional costs for the union and ultimately for individual union members because it is their dues that give the union the resources to pay for arbitration hearings.

THE CONNECTIONS BETWEEN GRIEVANCE PROCEDURES AND OTHER ASPECTS OF THE LABOR-MANAGEMENT RELATIONSHIP

In many ways, the operation of the grievance procedure is closely linked to other aspects of the labor-management relationship. The next section considers some of these linkages.

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308 Part IV. The Workplace Level of Labor Relations

The Impact of Trust on Contract Bargaining and Contract Administration

The administration of a collective bargaining agreement does not operate in isolation from the events that take place in the negotiations process. The behavior and attitudes of the parties during negotiations typically carry over into the administration of the contract. This is not surprising because the same factors that increase the level of confl ict and reduce the ability of the parties to settle without an impasse in negotiations also increase the level of antagonistic behavior during the administra- tion of the contract.

The level of trust between the parties often carries over directly from contract administration to contract negotiations. When a large backlog of unresolved grievances piles up and adds to a hostile atmosphere between the parties during the term of the agreement, the negotiations process becomes a convenient forum for venting these hostilities. Similarly, when the grievance procedure or an arbitration decision has failed to resolve a problem, one party or the other can be expected to place a demand on the negotiation table to remedy the situation. On the other hand, vague or inconsistent language that was negotiated in a climate of distrust is likely to set the stage for confl ict during the administration of the agreement.

Researchers have found that cooperative attitudes between union and manage- ment offi cials increase the likelihood that grievances will be settled at the lower steps in the procedure. 11 Data from the auto industry show a positive correlation between the rate of grievances fi led and two indicators of the intensity of confl ict in local contract bargaining: the number of issues introduced during the negotiations and the length of time it takes to reach a contract settlement. 12

A comparative study of the dynamics of grievance settlements in two auto plants further illustrates this point. In the plant that exhibited a highly adversarial relationship, grievance rates and rates of appeal to higher steps in the procedure followed the cycle of bargaining. That is, the union in this plant would save up grievances and fi le them just before the start of contract negotiations to use this stockpile as a lever in negotiations and to rally the rank and fi le in support of the union ’ s contract demands. In contrast, no such politicization of the grievance process occurred in a comparable auto plant that had a history of cooperative labor-management relations. 13

James Kuhn has found that a lot of bargaining commonly occurs at the work group level outside the formal grievance procedure. Kuhn found that work groups can engage in fractional bargaining —that is, informal bargaining with the supervisor to modify or even to ignore provisions of the agreement that do not suit the group ’ s particular needs. 14

Midterm or Continuous Bargaining

The average length of collective bargaining contracts appears to be increasing in the United States. Federal Mediation and Conciliation Service data suggest that the duration of nearly 40 percent of new agreements is more than three years. Making this practice work, however, requires some means of addressing issues

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Confl ict Resolution at the Workplace 309

that arise during the term of the agreement. Several ways of doing so, in addition to the grievance procedure, have been developed.

One long-standing practice is for labor and management negotiators to meet periodically to explore issues and reach informal agreements that are perhaps codifi ed as letters that supplement the bargaining agreement. These letters are in effect binding commitments—they can be enforced through the grievance procedure, but they are meant to be somewhat less permanent than formal contract language. In some cases, the parties clarify how specifi c contract provisions will be interpreted or applied to different groups. Another practice, known as continuous bargaining is becoming more common, in which teams of company and union representatives engaging in bargaining over issues that come up during the term of the contract rather than waiting for the existing contract to expire. The advantage of this approach is that it can establish clear guidelines for when issues are dealt with, the potential range of issues, and the scope of authority or discretion for dealing with issues that come up during a long-term contract. It also provides protection against erosion of contract provisions by individual supervisors or groups who see some contract provisions as a constraint in their ability to address problems with production or service delivery. Instead of trying to get around the contract, parties can bring these problems to the mid-term or continuous bargaining forum.

Many labor and management leaders now use the interest-based principles used in contract negotiations to address problems that arise during the term of a collective bargaining agreement. This usually involves setting up some type of subcommittee or task force to study a problem and recommend a solution. More and more, the administration of labor agreements is blending with these and other problem-solving processes and the various types of employee and union-management participatory processes that we discussed more fully in Chapter 11 .

The Limits of Arbitration: Confl icts over Technological Change

Although arbitration is effective in resolving many workplace confl icts, technological change can produce problems that are diffi cult to resolve through the traditional arbitration mechanism. Changes in technology can render previous unit determina- tion decisions obsolete by modifying how the work is performed, raising the question of whether the new jobs created should be excluded from the existing unit. Computer-aided design (CAD) is one example of such a technological change. CAD can transfer drafting, model making, and other similar jobs from their traditional place in blue-collar production and maintenance units to the purview of design or manufacturing engineers. These engineers have traditionally been nonunion or have been members of a separate engineers’ union and bargaining unit. In the aerospace industry, for instance, confl ict has arisen over whether members of the machinists’ union or members of the professional engineers’ union should be given the work of maintaining the thousands of computers aerospace companies use.

Box 12.4 describes another technology-related dispute that was ultimately resolved by an arbitrator. In this case, robots took over some of the tasks traditionally

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310 Part IV. The Workplace Level of Labor Relations

BOX 12.4 Arbitrating Cases involving Technological Change

The Issue

Did the company violate the collective bargaining agreement when it assigned certain machining and fi xturing work on robotics to nonbargaining unit personnel? If so, what shall be the remedy?

The Facts

The grievant and other bargaining unit personnel did fi xturing work on production technology referred to as Robot No. 1. They did similar work for a while on Robots No. 2 and No. 3, but then this assignment stopped in 1984. In December 1983, the company formed a new department called Advanced Automation and Technology, and the fi xturing work, what the company calls “development work,” was given to nonbargaining-unit engineering personnel assigned to the new department.

The Arbitrator ’ s Discussion

In establishing the Advanced Automation and Technology Department, the company made a major change that affects the allocation of work that previously had been done by tool room personnel. . . . In a world of changing technology and methods, specifi c duties and responsibilities may shift within an organization. The issue in this case arises because of a shift from earlier technology (that is rather standard and can be adapted in a straightforward manner by bargaining-unit personnel) to new technology that requires considerable experimentation by engineers and technicians.

And so we have a situation where an organizational change has shifted the function of preparing production technology, but it is not clear whether the new skills and duties that are involved belong in the bargaining unit or elsewhere in the organization. Given the grey area that is involved in this dispute, it would be desirable for the parties to establish principles to guide the allocation of work.

The Arbitrator ’ s Decision

Given the fact that the union has not established conclusively that fi xturing work for robotic technology belongs to the bargaining unit, it was not a violation of the collective bargaining agreement when the company assigned certain machining and fi xturing work to nonbargaining-unit personnel.

Nonetheless, given that the establishment of the Advanced Automation and Technology Department represented a major decision with important consequences for the bargaining unit, . . . the parties are directed to negotiate in good faith over the effects of this change.

Source : Arbitration award of Robert B. McKersie in the case of Northrup Corporation and United Auto Workers Local 1596, 1 July 1986. Adapted and used with permission of the arbitrator.

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Confl ict Resolution at the Workplace 311

performed by blue-collar workers. The issue was in part about who should be given the job of bringing the robots on line and adapting their specifi cations so they could perform specifi c jobs.

This example illustrates an important feature of the structure of bargaining in the United States. Because so much rests on the defi nition of the boundaries of bargaining units, many fi ne legal distinctions have been drawn over the years. Labor and management often rely on these legalistic rulings by the NLRB or by arbitrators to modify the boundary of a bargaining unit to fi t changing technologies or changing company practices.

As new technologies and new ways of organizing work are adopted, these issues will become more common. The parties will need to fi nd better ways of resolving the issues than through arbitration or NLRB precedents. As the arbitrator quoted in Box 12.4 observed, it is generally preferable for the parties to develop their own principles for handling these issues as they arise than to rely on an arbitrator to devise a viable solution after the fact.

The Japanese labor relations system and some European systems may be better suited to responding to changing technologies than the U.S. system because they include both blue- and white-collar workers in the same union and in the same election or bargaining units (see Chapter 15 ). In Japan, for example, enterprise unions represent all blue- and white-collar workers in a single fi rm. In Germany, most industrial unions include both the blue- and the white-collar workers employed in a company and in an industry. In Great Britain, on the other hand, a tradition of separate blue- and white-collar unions and a greater reliance on craft unions makes this problem potentially more troublesome than it is in our country. These issues are important because labor relations systems that make fi ne distinctions among election and bargaining units may be more likely than others to face diffi culty in adapting to the new technologies now spreading across industries.

EVALUATING THE PERFORMANCE OF THE GRIEVANCE SYSTEM

Just as one important measure of the effectiveness of the negotiations process is whether the parties can avoid strikes and impasses, an important criterion for evaluating grievance and arbitration procedures is whether the parties can avoid a heavy caseload. The advantages of settling disputes informally or at the step closest to the site where the problems arise are great.

In fact, although the United States has a tradition of very formal grievance systems in unionized settings, informal practices have emerged at the workplace. Most employee complaints are resolved informally before they become formal grievances. A study by Lewin and Peterson, for example, found that between 16 and 40 percent of the employees in the unionized workplaces they studied reported having discussed with their supervisors (and resolved) a problem about their contractual rights. 15

However, a low grievance rate may be attributable to the fact that a union is not aggressively enforcing the terms of a contract. For this reason, evaluation of

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312 Part IV. The Workplace Level of Labor Relations

the use of the grievance procedure should be accompanied by consideration of the reasons for low use.

Time and Costs of Settling Grievances

Two criteria that are commonly used to evaluate grievance procedures are the time it takes to settle claims and the costs associated with processing claims through to arbitration. The original purpose in developing the procedures was to fi nd an expeditious and inexpensive substitute for court procedures. Although the grievance process is still shorter than litigation, the time required to resolve a grievance through arbitration has become substantial. In 2005, the average period between the request for an arbitrator and an award being issued was 401 days for arbitrations administered by the FMCS. 16 To this period must be added an average of 163 days between the initial fi ling of a grievance and a request for arbitration. Although the average length of employment litigation cases is longer, averaging two to three years, the idea of arbitration as a simple, expeditious procedure for resolving workplace disputes is being lost when grievances take over a year to be decided.

Similarly, the cost of arbitration can be substantial, even though it is generally cheaper than litigation. In 2013, the average total cost of hiring an arbitrator from the FMCS arbitrator list was $4,911.86, based on an average daily fee of $1,023.62 plus expenses and an average of four days for the hearing plus writing the award. 17 Yet hiring an arbitrator is usually only one aspect of the entire cost of resolving a grievance-arbitration case. According to the National Labor Management Association, when a union undertakes all of the steps in a discharge arbitration case, it must account for the grievance process; staff time; the cost of a transcript, hotels, and study time; and the arbitrator ’ s fee. The increasingly common use of lawyers as representatives at arbitration, particularly on the management side, further increases the cost of arbitration. The modern grievance procedure may not be providing inexpensive due process, as it was intended to. At the same time, court litigation to resolve an employment-related dispute can be extremely expensive and is impractical for unions that have budget limitations.

The Effects of Arbitration Decisions

Another important way of evaluating grievance and arbitration procedures is what happens after an arbitrator has reinstated a discharged employee. If the grievance procedure is effective in carrying out industrial justice, a worker who has been unjustly discharged should be able to return to work and both perform well in the job and progress satisfactorily within the company.

The procedure itself, however, may work against these results in several ways. First, the delays involved in processing a case through arbitration may lead a grievant who has been discharged to seek alternative employment. Some reinstated employees therefore do not return to their former jobs. Second, reinstated employees are put back on their jobs frequently against the will of their employers, often to the dismay of their immediate supervisors, and sometimes to the dissatisfaction of their fellow workers. Some reinstated workers face hostility on their return to work. Even if management, supervisors, and fellow workers make a good-faith effort to treat the reinstated employee fairly, the employee may distrust their intentions

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Confl ict Resolution at the Workplace 313

or lack the confi dence to perform effectively. Some studies have found that employees who have been reinstated do not fi t back into the workplace well. 18

One study showed that grievants in four fi rms later received lower job per- formance ratings, had lower probabilities of promotion, and were more likely to experience voluntary or involuntary turnover than employees who had not used the grievance procedure. In addition, the study found that grievants who had appealed their cases to the higher steps of the procedure later had more negative performance and promotion experiences than those who had settled at the lower steps. And employees who had won their grievances—that is, whose grievances were found to be meritorious by either management or an arbitrator—had lower subsequent performance ratings than those whose grievances had been denied by management or an arbitrator. The same negative profi le of aftereffects fi t the supervisors of grievance fi lers. Supervisors of grievance fi lers received lower performance ratings, were less likely to get promoted, and were more likely to experience involuntary turnover than supervisors in a comparison group. This study suggests that grievance fi lers and their supervisors face considerable risk of retribution for using the procedure. 19

An obvious implication of this evidence is that both management and union representatives need to pay careful attention to what happens after a grievance is resolved.

Even in the face of the problem of retribution, the grievance procedures serve an important function as a common law of the shop. Management and union representatives often learn from grievance settlements and arbitration awards the appropriate interpretation of contract clauses and then adapt their behavior accordingly. 20

In sum, the grievance and arbitration processes can have positive effects in which the parties learn a better way of administering a contract or they can have negative effects that involve retribution. Much depends on whether management and labor representatives are committed to the goals the process was designed to foster.

ALTERNATIVES TO THE GRIEVANCE PROCEDURE IN THE UNION SECTOR

The costs and delays associated with the grievance procedure and arbitration have led labor and management to develop innovative procedures designed to reduce excessive delays and costs. Among these alternatives are several minor modifi cations of existing practices, such as keeping grievances oral as far into the procedure as possible to promote informal resolution, tightening time allowances at various steps of the procedure, and agreeing that oral settlements or settlements at inter- mediate steps of the procedure will not serve in any way as precedents.

Expedited Arbitration

Expedited arbitration is a type of grievance arbitration in which the parties agree to speed the resolution of disputes. Expedited procedures bypass steps in the normal grievance procedure and impose tight time limits. The specifi c features

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314 Part IV. The Workplace Level of Labor Relations

of expedited arbitration vary between contracts, but the following are some common components:

Pre-hearing suggestions include (1) appointing a panel of arbitrators for the length of the contract rather than working through a new list of arbitrators each time an arbitration is scheduled; (2) appointing a permanent umpire [arbitrator] for a specifi c amount of time (one year of the life of the agreement, for example); (3) using pre-hearing briefs as a basis for stipulating facts and educating the arbitrator. Hearings may be expedited by substituting tape recordings for transcripts. Post-hearing expedition includes (1) setting a deadline for the award to be returned to the parties; (2) reducing or eliminating the number of citings for the arbitrator to research; and (3) setting a maximum on the length of one page for the award or establishing the maximum amount to be paid for the decision ahead of time. 21

Labor, management, and arbitrators report positive results from expedited arbitration procedures. A six-year review of the expedited arbitration procedure of the Steelworkers basic steel industry system found that:

1. Oral resolution cut the cost of the average grievance arbitration case. 2. More than half the grievances were resolved before arbitration. 3. The awards almost always conformed to the time limits specifi ed. 4. The procedure has spread to other Steelworkers contracts in the aluminum,

can, copper, and metals industries. 22

Expedited arbitration appears to be one viable strategy for reducing the costs and delays involved in many routine cases.

Grievance Mediation

Another innovation that has gained in popularity as a faster and less expensive alternative to arbitration is grievance mediation . In this procedure, a neutral third party is asked to mediate a dispute. The process is typically highly informal and does not involve written transcripts, briefs, attorneys, or written opinions. Rather, the mediator meets with the union and management and then often conducts a series of separate meetings with each party to discern any underlying reasons for the grievance and the possible points of compromise. The hope is that the mediator will be able to mediate settlements in many of the disputes and thereby reduce the frequency of arbitration. Although the decision of the mediator is not binding on the parties, one study found that 89 percent of grievance meditations are settled without the need for arbitration. 23

A pioneering effort to use mediation to resolve grievances before they go to arbitration was developed and applied in the coal industry by William Ury, Jeanne Brett, and Stephen Goldberg. 24 These authors calculated that the average cost per arbitration case in the industry in 1985 was $1,300, whereas the average cost per mediation case was $309—a savings of roughly $1,000 per case. In addition, over a fi ve-year period, the average time lapse between a request for mediation and the resolution of the case was nineteen days, considerably less time than the average of fi fty-two days required to schedule an arbitration hearing and receive

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Confl ict Resolution at the Workplace 315

a written award. But even further testimony to the value of grievance mediation can be found in the high levels of satisfaction with the procedure that management, union representatives, and the miners who took part in it reported. 25

Although research supports the effectiveness of grievance mediation in resolving grievances quickly and at a low cost, estimates suggest only about 3 percent of all contracts contain a mediation step in the grievance procedure. In a review of developments in this area, Peter Feuille argues that the reason for the lack of greater adoption of grievance mediation is the relative strength and robustness of the traditional grievance and arbitration process. 26 Indeed, the relative stability and enduring structure of grievance and arbitration procedures in unionized settings is a striking feature of U.S. labor relations, given the many sweeping changes that have occurred in other areas in recent years.

CONFLICT RESOLUTION IN NONUNION SETTINGS

The absence of a union does not eliminate the need for confl ict resolution systems in the workplace. Nonunion employers also often fi nd the need to perform this generic industrial relations function. Over recent decades, many employers have instituted complaint or appeal systems and other communication and confl ict resolution procedures for their nonunion employees. These systems and procedures are often the only direct recourse available to nonunion employees who feel they have been treated unfairly in the workplace. However, they are also often less consistent mechanisms for ensuring fair treatment and employee voice than union grievance procedures.

Reasons for Adopting Nonunion Grievance Procedures

As discussed earlier, in virtually all unionized settings, grievance procedures are established to enforce jointly negotiated collective bargaining agreements with the strong encouragement of labor law statutes and court decisions. In contrast, in nonunion settings, management has the sole discretion to decide whether to establish a formal dispute resolution procedure. However, in practice, many employers choose to establish formal grievance procedures for complaints by nonunion employees. There are three major categories of reasons why employers chose to do so.

First, employers may adopt nonunion grievance procedures as part of a manage- ment strategy to improve the performance of a work force. The absence of a union does not eliminate the need for confl ict resolution systems in the workplace. According to Albert Hirschman ’ s theory, employees who have no effective means to voice their discontent with any inequities they perceive may simply choose to leave the company. 27 Such turnover can be very costly for employers, particularly for those following strategies such as the human resource management pattern discussed in Chapter 5 , which involve high levels of investment in the skills, training, and capability of their employees. To the degree that confl ict resolution systems can reduce such costly turnover, there will be an incentive for employers to adopt them.

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316 Part IV. The Workplace Level of Labor Relations

Second, employers may adopt nonunion grievance procedures as part of union avoidance strategies. The introduction of a union grievance procedure that allows a union to enforce the terms of a collective bargaining agreement and provides employees with due process is one of the major benefi ts of unionization that unions can offer during organizing campaigns. Research has shown that arguments based on justice and fairness are particularly effective during organizing campaigns. Employers who can provide employees with effective nonunion grievance procedures may reduce the desire for union representation and limit the strength of these arguments in an organizing campaign.

Third, employers may adopt nonunion grievance procedures to reduce the risk of litigation from employees. As we discussed in Chapter 3 , with the expansion of employment laws in recent decades, there has been a growth in the number of lawsuits fi led by employees and an increase in the damages awarded against employers. Nonunion confl ict resolution systems can help reduce the risk of litigation for employers by resolving workplace disputes before they turn into lawsuits. Effective grievance procedures may also help reduce the danger of lawsuits by allowing employers to identify managers who are engaging in improper or illegal actions toward employees more quickly and take appropriate corrective measures. Lastly, as will be discussed below, adoption of nonunion arbitration procedures can enable employers to avoid lawsuits entirely and substitute an arbitral forum for litigation to resolve disputes involving employment law.

Types of Nonunion Grievance Procedures

There is wide variation in the incidence and structure of nonunion dispute resolution procedures. While at least half of nonunion fi rms have formal grievance procedures, many continue to lack any procedures for resolving employee complaints or appeals. Among fi rms that have adopted nonunion procedures, the structure of these procedures varies widely.

The most basic type of procedure is the “open door” policy, under which employees are simply invited to bring their complaint or concern to a manager who will attempt to resolve it. More formal nonunion procedures for review of employee grievances often specify the person (often a supervisor or lower-level manager) to whom complaints can be brought and the person(s) (generally a higher-level manager) to whom the employee can appeal if they are unsatisfi ed with the initial manager ’ s decision. More sophisticated systems like this may involve a committee or board of senior-level managers who will review and decide the merits of an employee ’ s grievance and give the employee an opportunity to present his or her grievance in a more formal hearing. A common feature of these types of procedures, however, is that a manager or managers are the fi nal decision makers, not a third-party neutral, as in union arbitration procedures.

Some nonunion fi rms have begun to adopt nonunion grievance procedures that feature nonmanagers as decision makers. Among these types of procedures are peer-review panels, which use fellow employees as decision makers, and nonunion arbitration procedures, which use third-party neutral arbitrators. Both of these types of procedures will be discussed further below.

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Confl ict Resolution at the Workplace 317

Data from the telecommunications industry reveals that dispute resolution procedures appeared with the following frequency in nonunion establishments: no formal procedure (49.5 percent); basic nonunion procedure (20.3 percent); management appeals board (10.8 percent); and peer review and/or binding arbitra- tion (19.3 percent). 28

In addition to these formal procedures for appealing grievances, some employers have instituted alternative processes for resolving workplace confl ict, including ombudsman offi ces, internal or external mediation, “speak up” programs, employee counseling services, and attitude surveys and related communications programs.

Ombudsman offi ces are an interesting alternative to traditional grievance procedures. The ombudsman is an individual a company employs to help resolve problems, complaints, or confl icts between or among employees, supervisors, and managers. Within the typical structure, the ombudsman reports directly to the offi ce of the chief executive or to the head of the human resource management department. This is done to remove him or her from the general management chain of command. Since the ombudsman ’ s mandate is more open-ended than the mandate for a grievance procedure, ombudsmen play a more varied role in resolving confl icts and often handle a broader range of issues than do arbitrators in the typical grievance procedure. Box 12.5 lists a range of functions the typical ombudsman might perform. The fl exibility and informality with which the ombudsman can approach this role is one of its distinct advantages. 29

Integrated Confl ict Management Systems

In recent years, a trend has emerged toward the introduction of integrated confl ict management systems. An integrated confl ict management system uses a systematic approach to preventing, managing, and resolving confl ict that focuses on the causes of confl ict. The key features of an integrated confl ict management system are provided in Box 12.6 .

Many factors are contributing to the development of sophisticated confl ict resolution procedures. Complaints by employees against supervisors, peer disputes, complaints that some part of a company is providing poor service, and disagreements among work groups or teams are some of the reasons why organizations feel the need for systematic approaches to confl ict resolution. In addition, disputes in the workplace now include complex problems related to matters such as intellectual property, sexual harassment, and confl icts of interest.

Why Nonunion Employees Desire Complaint Procedures

Employees in nonunion fi rms seek complaint procedures in part because they want a mechanism they can use to challenge discharge decisions. The employment- at-will doctrine that is used in the United States when there is no collective bargaining agreement stipulates that both the employee and employer are free to end the employment relationship at any time, for any reason, and without liability, provided that the termination does not violate any laws.

As we discussed in Chapter 3 , in recent years a number of state courts have allowed legal claims based on exceptions to the employment-at-will doctrine.

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318 Part IV. The Workplace Level of Labor Relations

BOX 12.5 Functions of an Ombudsman

• To give a personal and confi dential hearing, to defuse rage, to provide a caring presence to those in grief about a dispute.

• To provide (and sometimes to receive) information on a one-to-one basis. • To counsel people (confi dentially) on how to help themselves by helping

develop new options, by problem solving, by role playing. • To conciliate (that is, to go between parties without bringing them face to

face). • To mediate by bringing parties together face to face. • To investigate formally or informally, with or without presenting

recommendations. • To arbitrate or adjudicate, although this is a rare function. • To facilitate systems or procedural changes by recommending “generic”

solutions, by providing upward feedback, by writing internal memos, by “management consulting” with institutions, by public reports, by recom- mendations to legislatures, and by supporting education and training.

The classic language describing most ombuds practitioners is “They may not make, or change, or set aside any law or policy or management decision; theirs is the power of reason and persuasion.”

Source : Mary P. Rowe, “Notes on the Ombudsman in the United States, 1986,” Cambridge: Massachusetts Institute of Technology, 1986.

Yet even with the gradual expansion of nonunion complaint procedures and the courts’ loosening of the employment-at-will doctrine, there is much controversy about whether unorganized employees have an appropriate amount of due process. The importance of this as a public policy issue continues to grow as the percentage of the work force represented by unions declines.

Differences between Union and Nonunion Grievance Procedures

There are important general differences between the procedures for resolving workplace confl icts in union and nonunion workplaces. First, grievance procedures in unionized workplaces are created and operate under rules established in collective bargaining agreements jointly negotiated by the union and management. Nonunion grievance procedures are designed and adopted by management and apply work rules that an employer unilaterally makes. Second, whereas the union represents the employee in a union grievance procedure, the employee typically must represent him or herself under a nonunion grievance procedure. While a unionized employee may in some situations disagree with how the union handles his or her grievance,

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Confl ict Resolution at the Workplace 319

BOX 12.6 Integrated Confl ict Management Systems

An integrated confl ict management system does the following:

• Encourages employees and managers to voice concerns and constructive dissent early

• Integrates a collaborative problem-solving approach into the culture of the company, encouraging direct negotiation between those involved in a dispute

• Provides options for all types of problems for all people in the workplace • Coordinates a web of options and structures enabling problem solving across

areas and functions • Aligns two confl ict management practices with each other and with the

mission, vision, and values of the company, thereby contributing signifi cantly to internal culture transformation

• Is understandable to all • Is fl exible and use friendly

Source : “Designing Integrated Confl ict Management Systems: Guidelines for Practitioners and Decision Makers in Organizations,” report prepared by the Society of Professionals in Dispute Resolution ADR in the Workplace Initiative, Institute for Confl ict Resolution, ILR, Cornell University, 2002.

the nonunion employee acting on his or her own typically has no expertise in grievance handling and does not have the negotiating power that union representa- tion could have provided. Third, in most nonunion grievance procedures, it is management that makes the decisions, in contrast to what happens in union grievance procedures, where the arbitrator as a neutral third party makes the fi nal decision. Although in recent years some nonunion grievance procedures have included nonmanagerial decision makers such as arbitrators or peer employees, these types of procedures are found in a small minority of nonunion workplaces. These differences mean that the due process protections for employees in typical nonunion grievance procedures are substantially more limited than those in union grievance procedures.

Impact of Nonunion Grievance Procedures

It has long been recognized that employees are much less likely to use grievance procedures in nonunion than union workplaces. However, employees may be more willing to use nonunion grievance procedures that have some due process protections. A study of employee usage of grievance procedures in the telecom- munications industry found that rates of usage varied with the type of procedure. Grievance rates are often measured as the number of grievances fi led annually per 100 workers. Looking just at grievances about discipline decisions, in unionized workplaces there was an average grievance rate of 5.3 for each 100 workers,

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320 Part IV. The Workplace Level of Labor Relations

whereas in workplaces with nonunion grievance procedures the average grievance rate was 2.0 per 100 workers. In the nonunion workplaces, grievance rates were much higher when the procedure included nonmanagerial decision makers: 2.9 per 100 workers for procedures that included peer review and 3.2 per 100 workers for procedures that included arbitration compared to only 1.3 per 100 workers for procedures that used only managers as decision makers. 30

Critics of nonunion grievance systems argue that an important reason why employees make less use of such procedures is that they fear reprisals. A study by David Lewin of the performance of grievance procedures in three high- technology nonunion fi rms provides some support for these claims. 31 Lewin found that compared to employees who did not fi le grievances, grievance fi lers (and their supervisors) had lower performance ratings, lower promotion rates, and higher rates of turnover in the year after their use of the procedure. Survey responses from two of the fi rms indicated that approximately one-third of those who did not fi le grievances chose not to do so because they either feared reprisals or believed there was little chance their appeal would be successful. Thus, it appears the grievants in these nonunion fi rms exercised their right to use these procedures at considerable risk. If this pattern is at all representative of experiences in other fi rms, it supports some of the critics’ arguments.

Peer Review and Union Avoidance

Confl ict resolution systems in nonunion settings may serve important functions for both employees and employers. These procedures can be constructive additions to a modern industrial relations system, but they can also give management a way to control the work force and avoid a union.

Evidence shows that a number of fi rms have adopted peer review, a particular kind of complaint-resolution procedure, because they found that it was an effective substitute for a union. 32 In peer review procedures, review panels or boards are established to hear employee grievances and make decisions about their merits.

In a peer review procedure, the majority of the members of the panel are peer employees of the grievant. This process “creates two important advantages for the use of peer review panels as union substitution mechanisms. First, because a majority of the fi nal decision makers in the procedure are no longer members of management, the panels promise greater neutrality in decision making. Second, because employees are involved in the procedure, there is some substitution for the representational function of the union in the workplace—albeit only a partial substitute, given that the panel members are not actually presenting the grievance on behalf of the employee.” 33

The history of nonunion grievance procedures has taken an ironic twist: what started as a unique and highly acclaimed innovation designed to deliver due process to employees has been transformed into an employer strategy for reducing employees’ chances of achieving union representation and acquiring a truly independent grievance procedure. Thus, like many other human resource manage- ment innovations that are driven at least in part by union avoidance motives, nonunion confl ict resolution systems are a double-edged sword.

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Confl ict Resolution at the Workplace 321

Nonunion Arbitration and Employment Laws

Use of arbitration as a fi nal step has long been a key feature of union grievance procedures. By contrast, until recently use of arbitration in nonunion grievance procedures was much rarer. This changed in the 1990s as employers began adopting arbitration procedures as an alternative to litigation through the courts as a way resolving employees’ claims based on employment laws.

Employment litigation costs increased dramatically in the 1960s, 1970s, and 1980s with the passage of various laws that protected workers, a shift in some state courts toward recognition of some common-law protections against wrongful dismissal, and occasional high damage awards to plaintiffs in disputes over dis- crimination and other claims. This produced a strong desire by fi rms to reduce litigation costs and avoid court actions where possible.

The impetus for the use of arbitration as a mechanism to avoid the risks and costs of litigation came from a shift in the courts toward favoring arbitration as an alternative way of resolving claims based on employment statutes. In its 1991 decision in Gilmer v. Interstate/Johnson Lane (1991), the U.S. Supreme Court ruled that a dispute based on a statutory employment right was subject to arbitration. Expanding upon the Gilmer decision, courts have ruled that disputes involving a wide variety of employment rights, including cases involving discrimination based on race, sex, age, and disability, are subject to the arbitration clauses in the employment contracts of nonunion employers. In 2001, the Supreme Court reaffi rmed its support for arbitration with its ruling in Circuit City v. Adams , which upheld the enforceability of an arbitration agreement that Circuit City required its employees to sign.

Employers that adopt arbitration procedures to resolve potential employment law claims typically require employees to sign an agreement that they will arbitrate potential legal claims against the employer as a mandatory condition of employment. The potential employee can choose not to sign the arbitration agreement, but the employer will then no longer offer the potential employee a job. For this reason, these procedures are often referred to as “mandatory arbitration.” These contracts are generally enforced by the courts, much as “take-it-or-leave-it” contracts are enforced in many other areas (e.g., contracts with rental car companies or apartment lease contracts).

In Equal Employment Opportunity Commission (EEOC) v. Waffl e House, Inc. (2002), the Supreme Court limited the applicability of the Circuit City decision. The Court ruled that the EEOC has the right to pursue judicial relief for a victim of employment discrimination even when the individual has signed a binding arbitration agreement with his or her employer. The EEOC can still seek relief such as back pay, reinstatement, and damages for victims of employment discrimination. Even after this ruling, the Gilmer and Circuit City decisions still limit an employee ’ s ability to dispute unfair work rules and treatment in the courts. Unless the EEOC pursues discrimination-related cases on behalf of employees, which it has the resources to do in around only 1 or 2 percent of all cases, employees can be forced to resolve an employment rights complaint through arbitration.

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322 Part IV. The Workplace Level of Labor Relations

Mandatory arbitration spread rapidly in the wake of the Gilmer and Circuit City decisions. Mandatory arbitration was very rare before the 1990s, but estimates suggest that by the mid-2010s around a quarter or more of workplaces had mandatory arbitration procedures in place. 34 The practical signifi cance of the enforcement of mandatory arbitration clauses is that they divert employment rights disputes, including discrimination cases, into an employer-designed arbitration procedure. As a result, there has been much debate about the fairness of mandatory arbitration procedures and various proposals have been made to increase their due process protections.

Debates over Mandatory Arbitration

Advocates of mandatory arbitration argue that it provides a faster, more effi cient mechanism for resolving employment law claims. They point to the lengthy delays and high costs of litigating employment claims through the courts and argue that arbitration provides a better, more accessible mechanism for resolving these claims for both employers and employees. Comparisons fi nd that while the average employment discrimination case takes 709 days to be resolved in the federal court system, similar cases take an average of 361 days to resolve in arbitra- tion. 35 Advocates argue that the simplifi ed procedures of arbitration are more appropriate for resolving routine employment law disputes and that they retain enough due process protections to ensure protection of the employee ’ s statutory rights. 36

Critics of mandatory arbitration argue that employers have too much control in such procedures, that they suffer from potentially biased arbitrators, and that they move the adjudication of public employment law claims from the public forum of the courts to a private forum. Since employers are the ones who design mandatory arbitration procedures and since they offer them to potential employees on a take-it-or-leave-it basis, critics worry that such procedures will include features that systematically bias them in favor of the employer, such as rules concerning who can serve as the arbitrator, limitations on access to the information needed to resolve the claim, and restrictions on how the employee can present his or her claim. In a colorful analogy, Katherine Stone described mandatory arbitration agreements as a modern version of the yellow-dog contracts that many employers required workers to sign promising that they would not join a union until the practice was outlawed in the Norris-LaGuardia Act of 1932. 37

Another major concern of critics is that employers will have a systematic advantage in arbitration because arbitrators will tend to favor the employer in the hope of being selected to decide future claims. A study of employment arbitration decisions found that where the employer had multiple cases before the same arbitrator, the employer ’ s chances of winning the case increased by 6.2 percent for each additional case the employer had with the same arbitrator. 38

Due Process Models and Controversies

While controversies and debates over the enforcement of mandatory arbitration procedures continue, there have also been efforts to establish models of which

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Confl ict Resolution at the Workplace 323

due process protections should be included in arbitration procedures used to resolve statutory claims. In 1994, the U.S. Department of Labor ’ s Commission on the Future of Worker-Management Relations (the Dunlop Commission) proposed a set of seven standards of fairness in nonunion arbitration:

a) A neutral arbitrator who knows the laws in question and understands the concerns of the parties;

b) A fair and simple method by which the employee can secure the necessary information to present the claim;

c) A fair method of cost-sharing between the employer and employee to ensure affordable access to the system;

d) The right to independent representation if the employee wants it; e) A range of remedies equal to those available through litigation; f) A written opinion by the arbitrator explaining the rationale for the result;

and g) Suffi cient judicial review to ensure that the result is consistent with the

governing laws. 39

In 1995, a task force established by the American Bar Association ’ s labor and employment law section, which included representatives from both employer and employee groups, developed a similar but more detailed Due Process Protocol for arbitration procedures to resolve statutory claims. Subsequently, the American Arbitration Association (AAA) announced that it would follow procedures based on the recommendations contained in the Due Process Protocol in any employment arbitration cases it administers. 40 This is important because many employers decide that instead of developing an arbitration procedure entirely on their own, they will contract with the AAA to provide the arbitrators and run the arbitration hearings under its rules.

Research indicates that even when mandatory employment arbitration is conducted under rules such as the AAA procedures, which provide more substantial due process provisions than is the case in employer-crafted procedures, employee outcomes from arbitration are less favorable than they are in litigation. A study of employment arbitration cases found that the average amount award to employees across all cases (including wins and losses) was $23,548 (in 2005 dollars). By contrast, using the same measure, average employee recoveries in studies of federal court case outcomes was $143,497 and in state courts $328,008. 41 Complex research issues are involved when comparing arbitration and litigation outcomes, but these broad comparisons suggest that employees recover much greater amounts in the courts. This gives employers a powerful incentive to adopt mandatory employment arbitration procedures.

The most recent controversy relating to mandatory arbitration is the inclusion of class-action waivers in arbitration agreements. In AT&T v. Concepcion (2011), 42 the Supreme Court ruled that an arbitration clause could require that any case be brought individually, effectively barring the plaintiff from participating in a class action. Although this case dealt with a consumer claim, it has also been applied in employment cases. This ruling give employers a way to use employment

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324 Part IV. The Workplace Level of Labor Relations

contracts to protect themselves from class actions if they include a class-action waiver in the arbitration agreement they require their employees to sign.

There is currently uncertainty about the effect of class-action waivers in employ- ment arbitration agreements due to an NLRB decision in the case of D. R. Horton, Inc. (2012). 43 Under section 7 of the NLRA, employees have the right to engage in concerted action for mutual aid and protection. In its D. R. Horton decision, the NLRB held that the employment arbitration agreement the employer had required had violated the employees’ right to engage in concerted action by fi ling a class action and that because of this, the class-action waiver was unenforce- able. Subsequent circuit court decisions have split on whether to accept the NLRB ’ s interpretation that the employees’ section 7 rights preclude enforcement of class-action waivers. It is likely that a Supreme Court ruling will be necessary to resolve this confl ict. This case illustrates how issues of labor relations are increasingly spilling over into the realm of nonunion employment relations and employment laws.

Summary

Grievance procedures historically have been the centerpiece of the day-to-day administration of the collective bargaining agreement. The grievance procedure provides a mechanism for settling disputes that arise during the term of a collective bargaining agreement. The grievance procedure typically includes steps involving successively higher-level union and management offi cials. The union has the right to decide if it wishes to push an unsettled grievance to a higher step.

The grievance procedure has been hailed as one of the most innovative features of the U.S. industrial relations system. The centrality of the role it played in the past is attributable in part to the understanding that it was management ’ s job to manage and the union ’ s job to grieve.

Collective bargaining agreements in the United States are elaborate documents that often include highly detailed job descriptions. The existence of such elaborate labor contracts contributed to the need for an orderly way of settling confl icts over interpretations of contract language.

Binding arbitration by a third party is the common device used as the fi nal step of grievance procedures. Arbitrators commonly consider past practice at the workplace, the intent of the parties during contract negotiations, and fairness when they fashion awards. In discipline cases, arbitrators generally require progressive and corrective discipline.

The centrality of formal grievance and arbitration procedures is now being challenged by recent developments. The combination of a need for greater adapt- ability and competitive pressures has led some unions and managements to simplify how confl icts are settled. The expansion of workers’ involvement in business and strategic decisions has led labor and management to rely less on the grievance procedure to solve problems. An effective industrial relations system in union settings now must be more than simply a grievance procedure. To keep in step with the times, the system must combine the strengths of a well-functioning

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Confl ict Resolution at the Workplace 325

grievance procedure with mechanisms for solving problems informally and for improving communication.

Confl ict resolution procedures are also important in the nonunion workplace. Employers are motivated to adopt them for a number of reasons, including reducing turnover, avoiding unions, and avoiding litigation. Nonunion confl ict resolution procedures come in a greater variety of forms than union grievance procedures. Some include structures such as peer review panels and ombudsman offi ces.

Mandatory arbitration of employment claims is a growing and controversial practice in the nonunion workplace. Mandatory arbitration agreements that employers impose as a condition of employment effectively bar employees from going to court and require them to arbitrate all disputes with the employer, even claims under statutes such as Title VII of the Civil Rights Act.

Advocates argue that arbitration of employment disputes is faster, cheaper, and more accessible for employees. Critics note that mandatory arbitration is unilaterally imposed by employers and often lacks due process protections. they point to empirical evidence that it produces worse outcomes for employees than litigation and is plagued by problems such as bias in favor of employers when the employer uses the same arbitrator repeatedly. Recent concerns have focused on the enforce- ability of class-action waivers in mandatory arbitration agreements.

Discussion Questions

1. Describe the typical steps followed in a grievance case. 2. Name the groups the grievance process meets the needs of and discuss how

the grievance arbitration procedures help meet their respective needs. 3. What are some of the alternatives to the grievance arbitration process in

unionized workplaces? 4. What are some of the techniques nonunion fi rms use to resolve confl ict? 5. Describe the debates concerning whether nonunion arbitration procedures

should be used to resolve disputes about employment laws.

Related Websites

Federal Mediation and Conciliation Service: http://www.fmcs.gov

American Arbitration Association: http://www.adr.org

Suggested Readings

Elkouri , Frank , and Edna Asper Elkouri . How Arbitration Works . 7th ed . Washington, D.C. : Bureau of National Affairs , 2012 .

Lipsky , David , Ronald Seeber , and Richard Fincher . Emerging Systems for Managing Workplace Confl ict . San Francisco : Jossey-Bass , 2003 .

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326 Part IV. The Workplace Level of Labor Relations

Kuhn , James W. Bargaining and Grievance Settlement . New York : Columbia University Press , 1961 .

Lewin , David , and Richard Peterson . The Modern Grievance Procedure in the American Economy . New York : Quorum Books , 1988 .

McKelvey , Jean T. , ed . The Changing Law of Fair Representation . Ithaca, N.Y. : ILR Press , 1985 .

Notes

1. United States Industrial Commission, Final Report of the Industrial Commission (Washington: Government Printing Offi ce, 1902).

2. For a more thorough review of the development of grievance arbitration, see Robben W. Fleming, The Labor Arbitration Process (Urbana: University of Illinois Press, 1964).

3. Charles C. Killingsworth and Saul Wallen, “Constraint and Variety in Arbitration Systems,” in Labor Arbitration-Perspectives and Problems: Proceedings of the National Academy of Arbitrators, 1964 (Washington, D.C.: Bureau of National Affairs, 1965), 56–81.

4. Agreement between General Motors Corporation and the UAW, October 8, 1987 (N.p.: n.p., 1987), 93–94.

5. Neil W. Chamberlain and James W. Kuhn, Collective Bargaining , 3rd ed. (New York: McGraw- Hill, 1986), 151–153.

6. United Steelworkers of America v. Warrior and Gulf Navigation , 363 U.S. 547 at 581 (1960). 7. Steele v. Louisville & Nashville R.R. Co. , 323 U.S. 192 (1944). 8. Vaca v. Sipes , 386 U.S. 171 (1967). 9. Hines v. Anchor Motor Freight, Inc. , 424 U.S. 554 (1976). 10. Bowen v. United States Postal Service , 103 U.S. (1983). 11. James T. Turner and James W. Robinson, “A Pilot Study of the Validity of Grievance Settle-

ment Rates as a Predictor of Union Management Relationships,” Journal of Industrial Relations 14 (September 1972): 314–322.

12. Harry C. Katz, Thomas A. Kochan, and Kenneth R. Gobeille, “Industrial Relations Performance, Economic Performance, and QWL Programs: An Interplant Analysis,” Industrial and Labor Relations Review 37 (October 1983): 8–9.

13. Nancy R. Mower, “The Labor-Management Relationship and Its Effects on Quality of Work Life” (M.S. thesis, Massachusetts Institute of Technology, 1982).

14. James W. Kuhn, Bargaining in Grievance Settlement (New York: Columbia University Press, 1961).

15. David Lewin and Richard Peterson, The Modern Grievance Procedure in the United States (New York: Quorum Books, 1988).

16. Federal Mediation and Conciliation Service, Arbitration Statistics, Fiscal Year 2005, www.fmcs.gov .

17. Federal Mediation and Conciliation Service, Arbitration Statistics, Fiscal Year 2013, www.fmcs.gov .

18. Arthur M. Ross, “The Arbitration of Discharge Cases: What Happens After Reinstatement?” in Critical Issues in Arbitration: Proceedings of the Tenth Annual Meeting of the National Academy of Arbitrators (Washington, D.C.: Bureau of National Affairs, 1957), 21–56; Robert C. Rodgers, I. B. Helburn, and John E. Hunter, “The Relationship of Seniority to Job Performance Following Reinstatement,” Academy of Management Journal 29 (March 1986): 101–114.

19. Lewin and Peterson, The Modern Grievance Procedure in the United States. 20. Thomas R. Knight, “Feedback and Grievance Resolution,” Industrial and Labor Relations

Review 39 (July 1986): 585–598. 21. Nancy Kaufman, “The Idea of Expedited Arbitration Two Decades Later,” Arbitration Journal

(September 1991): 34–38. 22. John Zalusky, “Arbitration: Updating a Vital Process,” American Federationist 83 (November

1976): 4.

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Confl ict Resolution at the Workplace 327

23. Jeanne M. Brett and Stephen B. Goldberg, “Grievance Mediation in the Coal Industry: A Field Experiment,” Industrial and Labor Relations Review 37, no. 1 (1983): 49–69.

24. William L. Ury, Jeanne M. Brett, and Stephen B. Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Confl ict (San Francisco: Jossey-Bass, 1988).

25. Stephen B. Goldberg, “The Mediation of Grievances under a Collective Bargaining Contract: An Alternative to Arbitration,” Northwestern University Law Review 77 (October 1982): 270–315.

26. Peter Feuille, “Grievance Mediation,” in Employment Dispute Resolution and Worker Rights in the Changing Workplace , ed. Adrienne E. Eaton and Jeffrey H. Keefe (Champaign-Urbana, Ill.: Industrial Relations Research Association, 1999): 187–217.

27. Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, Mass.: Harvard University Press, 1971).

28. Alexander J. S. Colvin, Citizens and Citadels: Dispute Resolution and the Governance of Employment Relations (PhD diss., Cornell University, 1999).

29. David Lewin, “Workplace Dispute Resolution,” in The Human Resource Management Handbook, Part II , ed. D. Lewin, D. J. B. Mitchell, and M. A. Zaidi (Greenwich, Conn.: JAI Press, 1997), 197–218.

30. Alexander J. S. Colvin, “The Dual Transformation of Workplace Dispute Resolution,” Industrial Relations 42 (October 2003): 712–735.

31. David Lewin, “Confl ict Resolution in High Technology Firms,” in Human Resource Management in High Technology , ed. Archie Kleingartner and Cara Anderson (Lexington, Mass.: Lexington Books, 1987).

32. Alexander J. S. Colvin, “Institutional Pressures, Human Resource Strategies and the Rise of Nonunion Grievance Procedures,” Industrial and Labor Relations Review 56 (April 2003): 375–392.

33. Ibid., 380. 34. Alexander J. S. Colvin and Mark Gough, “Individual Employment Rights Arbitration in the

United States: Actors and Outcomes,” ILR Review 68, no. 5 (2015): 1019–1042. 35. Alexander J. S. Colvin, “An Empirical Study of Employment Arbitration: Case Outcomes

and Processes,” Journal of Empirical Legal Studies 8, no. 1 (2011): 1–23. 36. Samuel Estreicker, “Saturns for Rickshaws: The Stakes in the Debate over Predispute Employ-

ment Arbitration Agreements,” Ohio State Journal on Dispute Resolution 16 (2001): 559–570. 37. Katherine V. W. Stone, “Mandatory Arbitration of Individual Employment Rights: The

Yellow Dog Contract of the 1990 ’ s,” Denver University Law Review 73 (1996): 1017–1050. 38. Colvin and Gough, “Individual Employment Rights Arbitration in the United States.” 39. Commission on the Future of Worker-Management Relations (The Dunlop Commission),

Report and Recommendations (Washington, D.C.: U.S. Department of Labor, 1994). 40. “Revised AAA Arbitration Procedures Refl ect Due Process Task Force Scheme,” Daily Labor

Report , May 28, 1996. 41. Colvin, “An Empirical Study of Employment Arbitration.” 42. 563 U.S. 333 (2011). 43. 357 NLRB No. 184 (2012).

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