In the early days of labor-management relations there was a lot of labor unrest; disputes in the workplace were settled mainly by strikes. Management had the upper hand because the courts favored management and injunctions were easy to get to force the unions and their members to get back to work.
Arbitration was infrequently practiced until World War II, with unions and management frequently relying on economic tests of strength to resolve employee grievances. Arbitrators had little authority and they often attempted to reach consensus amoung the parties much like mediators do today.
Some very important Supreme Court decisions gave the arbitrators the authority to make "final and binding" decisions in arbitrations cases. The Lincoln Mills decision (1957) stated that courts have an obligation to enforce labor agreement provisions, including the grievance and arbitration provisions. The Steelworkers Trilogy cases greatly enhanced the arbitrator's authority by stating in essence that the arbitrators, not the courts, are best qualified to interpret and resolve industrial grievances under collective bargaining agreements. The Boy's Market decision further clarified the parties legal obligations to settle grievances through arbitration and the courts obligation to enforce the arbitrator's decision.
Arbitrators, unlike judges, are selected by the parties, i.e., the union and management, to make a decision based on the language in the collective bargaining agreement. Evidence in an arbitration hearing is different than evidence in a court. Arbitrators are more liberal than judges in accepting certain types of evidence. For example, polygraph examinations are accepted by some arbitrators, although little or no weight is given to the evidence unless it is corroborated by other testimony; hearsay testimony, while possibly allowed at the hearing, is given little or no weight unless it is corroborated.
In the workplace the majority of arbitrations are regarding discipline cases. In my experience, I have found that most arbitrators see the purpose of discipline as a means to change employee behavior not to punish the employee. The decision-making criteria used by arbitrators include: the burden of proof, witness credibility and the cross-examination of the witnesses; provisions of the labor agreement and the interpretation of those provisions; the intent of the parties when the provisions in the labor agreement were negotiated; the past practice of the parties regarding the provisions in the labor agreement; previous arbitration awards and arbitration principles.
The characteristics and scope of an arbitrator's decision are:
1. The statement of the issue(s) to be arbitrated.
2. Statement of the facts surrounding the grievance.
3. Names of union and management representatives involved in the case; employees and expert witness(es)
who testified.
4. Pertinent provisions of the labor agreement.
5. A summary of union and management contentions.
6. Discussion and opinion of the validity and relative weight of the facts and contentions.
7. The arbitrator's award.
Disputes can be settled in arbitrations in a more timely fashion than in courts, thus arbitration provisions are found in many contracts other than labor agreements.
Howard W. Lewis,
Labor Relations Consultant
hwl.assoc@comcast.net
Arbitration was infrequently practiced until World War II, with unions and management frequently relying on economic tests of strength to resolve employee grievances. Arbitrators had little authority and they often attempted to reach consensus amoung the parties much like mediators do today.
Some very important Supreme Court decisions gave the arbitrators the authority to make "final and binding" decisions in arbitrations cases. The Lincoln Mills decision (1957) stated that courts have an obligation to enforce labor agreement provisions, including the grievance and arbitration provisions. The Steelworkers Trilogy cases greatly enhanced the arbitrator's authority by stating in essence that the arbitrators, not the courts, are best qualified to interpret and resolve industrial grievances under collective bargaining agreements. The Boy's Market decision further clarified the parties legal obligations to settle grievances through arbitration and the courts obligation to enforce the arbitrator's decision.
Arbitrators, unlike judges, are selected by the parties, i.e., the union and management, to make a decision based on the language in the collective bargaining agreement. Evidence in an arbitration hearing is different than evidence in a court. Arbitrators are more liberal than judges in accepting certain types of evidence. For example, polygraph examinations are accepted by some arbitrators, although little or no weight is given to the evidence unless it is corroborated by other testimony; hearsay testimony, while possibly allowed at the hearing, is given little or no weight unless it is corroborated.
In the workplace the majority of arbitrations are regarding discipline cases. In my experience, I have found that most arbitrators see the purpose of discipline as a means to change employee behavior not to punish the employee. The decision-making criteria used by arbitrators include: the burden of proof, witness credibility and the cross-examination of the witnesses; provisions of the labor agreement and the interpretation of those provisions; the intent of the parties when the provisions in the labor agreement were negotiated; the past practice of the parties regarding the provisions in the labor agreement; previous arbitration awards and arbitration principles.
The characteristics and scope of an arbitrator's decision are:
1. The statement of the issue(s) to be arbitrated.
2. Statement of the facts surrounding the grievance.
3. Names of union and management representatives involved in the case; employees and expert witness(es)
who testified.
4. Pertinent provisions of the labor agreement.
5. A summary of union and management contentions.
6. Discussion and opinion of the validity and relative weight of the facts and contentions.
7. The arbitrator's award.
Disputes can be settled in arbitrations in a more timely fashion than in courts, thus arbitration provisions are found in many contracts other than labor agreements.
Howard W. Lewis,
Labor Relations Consultant
hwl.assoc@comcast.net
