Contract Enforcement
MEAT AND POTATOES
AKA THE CHEAT SHEET – KEY TERMS TO KNOW
Union Grievance: is a complaint made by a union, bargaining unit employee, or agency about the interpretation or effect of a collective bargaining agreement (CBA).
Unfair Labor Practice: An agency commits a ULP when it violates rights that the Statute protects. Examples include: Threatening an employee that her career would not go much further if she proceeded with her grievance. Transferring an employee to an undesirable job because she filed a ULP charge.
Duty of Fair Representation: Requires unions to represent all employees fairly, in good faith, and without discrimination. This includes union members and non-members.
ADDITIONAL INFORMATION BELOW
VERY IMPORTANT
BUT OFTEN FORGOTTEN OR OVERLOOKED
ALL POSSIBLY GRIEVANCES NEED TO BE INVESTIGATED AND AN INVESTIGATION FROM NEEDS TO BE FILLED OUT
The Union Grievance Process:
Clearing up common misconceptions
In a unionized environment, a grievance is inevitable. Conduct an efficient and effective labor union grievance process using the tips in this article.
The 5-Step Workplace Grievance Process
Step 1: Informal meeting
Step 2: Supervisor meeting and documentation
Step 3: Escalation to management
Step 4: Escalation to top company representatives
Step 5: Referral to arbitration
The Grievance Trap
Nick Driedger describes how the grievance process pushes unions to act more collaboratively with management and settle for less. This article is based on a talk he delivered to the Canadian Organisation of Faculty Association Staff (COFAS) at their annual conference on June 1st, 2019.
Holding the Relationship Hostage
This brings us back to our problem: if you need a “good relationship” to settle grievances, what do you do when the employer tries to use the relationship itself to leverage demands against the union? All contract disputes are at root power struggles, and the union is the junior party, legally speaking.
MAKE THE MOST OUT OF LABOR MANAGEMENT COMMITTEE MEETINGS
USE IT TO DISCUSS ISSUES, ADDRESS PROBLEMS AND IMPROVE COMMUNICATION BETWEEN THE UNION AND MANAGEMENT
Important Information on Arbitration
The arbitration epidemic Mandatory arbitration deprives workers and consumers of their rights
Repeat player advantages in arbitration
In dispute resolution, the advantages accruing to repeat players in the system have long been a concern. A business or other organized group that frequently engages in litigation is likely to have advantages over an individual employee or consumer with no previous experience in resolving disputes.55 Repeat players have advantages because they gain familiarity with the system and how to operate effectively in it. They may also be able to lobby for changes to the system that benefit them.
May 2, 2024, 5:00 AM EDT; Updated: May 2, 2024, 11:49 AM EDTUnion Arbitration Wins in Firing Disputes Hit 10-Year High
In 2019 Winning 26% Arbitration Cases in Firing Disputes… 26% is impressive??? Most unions only take cases to Arbitration they think they can win. 100% of the cases unions thought the person shouldn’t have been terminated and labor unions only won 26% of them and that is a great year! That is a shame… This is horrible)
Over the past decade, unions have usually come out on the losing end of arbitrators’ rulings relating to discharges of union-represented employees. But the percentage of arbitration awards in labor’s favor has rebounded from 2020’s low point, and the upward trajectory indicates sustained success for unions, according to Bloomberg Law data.
In the years leading up to the global crisis in 2020, unions’ best showing in arbitration was in 2019, when they won 26% of all awards involving discharged union workers, according to Bloomberg Law’s analysis of arbitration rulings administered by the American Arbitration Association and the Federal Mediation and Conciliation Service.
Whether or Not to Arbitrate
Arbitrate? Sometimes we’re forced to. But taking grievances to arbitration can be expensive and dangerous. Why? Because arbitration is a third party process that does little or nothing to build union strength and, at worst, can set a bad precedent that will haunt workers even beyond their own union for many years.
What it Takes to Win a Case
- It’s a Clear Violation — The contract language or practice involved must be clear and a violation must have clearly occurred. In other words, the case must be a good one.
- The Union has Real Proof — Hard evidence, reliable union witnesses, previous written grievances, copies of good notes taken during negotiations, and employer memos are some examples of what you’ll need to make a strong case.
- Facts to Back-Up the Case — If it is a firing or discipline case, we must be able to show that the firing or discipline was “unjust” or that the penalty was too severe. Good factual evidence of how other similar cases were treated in the past is needed. In most cases the employee’s overall past record will be used against them (even if it is unrelated to the current issue.)
- We Must Have a Credible Theory — The union needs to give the arbitrator clear reason to rule in our favor. In other words, precisely how the contract was violated or precisely how the discipline lacks just cause.
- The Union is Prepared for Arbitration — Don’t wait until the last minute to gather evidence (see reverse side for examples of documents needed) or talk to witnesses. It’s best to get the details and take written statements while the incident is still fresh in the mind of each witness. It is not the job of the staff person to gather evidence and prepare the case history at the last minute. Know whether a solid case can be prepared and presented before making the decision to arbitrate.
- The Case is Based on Fact, Not Fiction — The witnesses must be telling the truth. Arbitrators will know when someone is lying or stretching the truth. Arbitrators come down much heavier on union witnesses for lying than they do on management.
- Know the Employer’s Case — This is something essential to pay attention to-thinking through the employer’s case and how we’ll respond. Most, if not all, of the employer’s arguments should have been heard by now in the grievance process. The union ought to be able to disprove or counter all of these arguments, if possible.
- The Issue and Remedy are Clear — Neither party will be permitted to raise new issues and evidence during the arbitration (especially for discipline and discharge cases). The union’s position must have been made clear during the earlier stages of the grievance process. Be sure that the union has included the remedy that is wanted in the grievance. An arbitrator can rule for the union but, at the same time, prescribe no remedy if none was requested.
- Our Case is Not Based on “Fairness” — Finally, remember that arbitration is not the arena to decide what is fair and what is not. An arbitration decides whether the contract has been violated. If the contract allows an unfair act by management, then there is no reason to arbitrate it. If justice (even revenge) is what we are after, there are other more effective ways to get it.
Congress could soon spell the end of employment arbitration—but it’s not all good news for American workers
Employment arbitration has become a dirty word on Capitol Hill. Congressman Hank Johnson claims that arbitration allows employers to “stack the deck against the little guy” for the 60 million employees bound by arbitration agreements. The Economic Policy Institute calls it an epidemic that is “undermining decades of progress in labor rights.”
It’s not hard to see why. Americans believe in the right to trial by jury and are suspicious of having decisions about their legal claims ruled upon by a stranger with little legal accountability. These suspicions are amplified by a series of reports from plaintiffs’ lawyers reporting that employees win only about half as often in arbitration as in federal court.
A recent study conducted over two years, involving 14,654 court and 811 Arbitration cases, challenges these notions. We carried out this research in collaboration with Harry C. Katz and David Sherwyn from Cornell University and Thomas A. Kochan from MIT. We found that:
Employees are much more likely to win in arbitration than in court
Studies finding arbitration inferior look at only the 3% of federal court employment cases that make it to trial. They ignore the 97% of cases that are decided by pre-trial motion—of which 98% are won by employers. When you consider all cases, employees win only 1% of the time in federal court.
Decisions by pre-trial motion are much less common in arbitration. Only 40% of American Arbitration Association employment cases are decided this way. Of the remaining 60%, employees win 31% of the time. This means that employees win 19% of all AAA employment cases. That’s 19 times as many as in court.
More employees can afford to arbitrate
Litigation is expensive. By even the most conservative estimate, an employee needs at least $40,000 in damages for an attorney to take their case.
Arbitration is much less expensive. Thirty-eight percent (38%) of employees who prevail in AAA arbitration had damages of less than $40,000. This represents much better access to justice for employees.
Arbitration is faster than litigation
For an employee who is out of work, paying the rent and feeding their families is difficult. The average employment case in court takes almost three years. During this time, employees and their families miss meals, need health care, and even become homeless.
Arbitration is much faster. The average AAA employment case takes an average of 14.8 months. Receiving justice faster is a great benefit to employees and their families.
Employees receive higher awards in court
Employees who are victorious in court generally receive higher awards than in arbitration. The average damages awarded by courts in civil rights cases is $406,000. In fair labor standards act cases, average damages are $123,000. In arbitration, the average damages are only $39,000 and $24,000.
Research has not clarified why judicial awards are larger. It may be because only high-value cases are worth pursuing to jury verdicts. Or arbitrators may be less willing to award emotional distress damages to employees.
Taken as a whole, our research shows that arbitration is not perfect, but offers employees many benefits. Arbitration gives employees a system that more employees can afford, in which they win more often, and receive justice faster.
Arbitration should be preserved to continue these benefits and reformed to correct its shortcomings. The core reforms needed include requiring arbitration agreements to be voluntary and having strong mandatory due process standards.
Unfortunately, the proposed Arbitration Fairness Act, which has virtually universal support of Congressional Democrats, would require all arbitration agreements to be made after the employment dispute arises. An agreement to arbitrate made at any other time would be automatically unenforceable, even if it were completely voluntary and fair.
In practice, this would mean the end of employment arbitration because the parties hardly ever agree to arbitrate once the dispute arises. Less than 4% of AAA employment cases involved post-dispute agreements.
Eliminating employment arbitration helps no one. Employers have invested in arbitration systems that resolve disputes faster and less expensively than litigation. Having them eliminated would be an expensive burden. Employees would lose a system that offers justice to the many who cannot afford to take their disputes to court and in which they win more often.
Both sides would be better off if we kept arbitration available and made the reforms needed to address its weaknesses.
Lewis L. Maltby is the president of the National Workrights Institute and a former director of employment rights for the ACLU.
Theodore J. St. Antoine is the Degan Professor Emeritus of Law at the University of Michigan and a former president of the National Academy of Arbitrators.
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The opinions expressed in Fortune.com commentary pieces are solely the views of their authors and do not necessarily reflect the opinions and beliefs of Fortune.
Why do employers typically win arbitration cases vs. an employee?
I have an arbitration clause in my employment contract, but the research I am reading on this suggests that employers win 95% of these cases. Why is that? I thought arbitration would be easier and faster than going through court, but it seems most of the cases seem to really depend on the arbitrator that gets selected. Does this mean that most arbitrators favor employers?