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Chapter 11 - Administering the employment relationship. The main contents of the chapter consist of the following: The grievance procedure, the historical evolution of grievance arbitration, the functions of grievance procedures and arbitration, how arbitration works, the connections between grievance, evaluating the performance of the grievance,…
Chapter 11 Administering the Employment Relationship McGrawHill/Irwin An Introduction to Collective Bargaining & Industrial Relations, 4e Copyright © 2008 The McGrawHill Companies, Inc. All rights reserved 1 3 11 3 The Grievance Procedure The grievance procedure specifies a series of steps to resolve a worker’s complaint that management has not followed the agreement Grievances are most often precipitated by the complaint of an employee against a supervisor Steps of an employee initiated grievance procedure typically include: • Step 1. Employee discusses grievance with the supervisor • Step 2. Grievance put into writing and parties discuss the grievance; management puts response in writing • Step 3. If unsuccessful, the grievance is appealed • Step 4. Union decides whether to appeal to arbitration 1 4 The Reasons Why Grievances Are Filed 11 4 Employee discipline is a common source of grievances • The employee may feel that he/she did not violate the contract, or that the discipline is too harsh A contract simply cannot specify what is to happen under all circumstances • Unions and management prefer a grievance procedure rather than trying to stipulate all potential issues of future dispute Grievance filings can be tactical to show union discontent regarding an issue • This will tend to rally the employees and increase future bargaining leverage 1 5 11 5 The Historical Evolution of Grievance Arbitration • The Spread of Arbitration The advocacy of the War Labor Board during WWII helped grievance arbitration to become a common practice Later, TaftHartley embedded grievance arbitration in national labor policy • Court Encouragement of Arbitration A series of Supreme Court decisions known as the Steelworkers’ trilogy encouraged the use of arbitration and insulated arbitration awards from judicial review 1 6 11 6 Judicial Deference to Arbitration Court cases continued the basic principle of judicial deference in the Steelworkers’ trilogy and added modifications In the Collyer decision of 1971, the court gave the arbitrator the responsibility to rule on an unfair labor practice issue In the Olin decision of 1984, the courts broadened the deferral of other unfair labor practice issues to arbitration 1 7 The Functions of Grievance Procedures and Arbitration 11 7 • Employee Interest in Due Process and Fairness The grievance procedures protect workers and render industrial justice Alternatives to grievances could cost management more to adjudicate If employees were to lose confidence in the procedures, they may turn to more costly and disruptive methods to solve their problems • Employer Interest in Labor Peace Grievance procedures reduce the likelihood of work stoppages Some contracts allow workers to strike over health and safety issues, since they may be urgent and potentially life threatening 1 8 Joint Interests in Continuity and Consistency 11 8 Both sides benefit from procedures that are consistent and allow flexibility in addressing unforeseen developments and unique needs • Society’s Interest in Industrial Peace Grievance and arbitration procedures serve the interests of society by preserving industrial peace and not overloading the courts 1 9 11 9 How Arbitration Works • The Components of Arbitration Prehearing Briefs present the sides’ views before the hearing Stipulations are shorter than briefs, and are statements of the issues in dispute and some key facts in the case • The Arbitration Hearing The parties present their positions and evidence to support their cases In disciplinary hearings, management will commonly be asked to present their statement first 1 10 The Arbitrator’s Decision 11 10 • Some contracts stipulate time limits for the decisions, though decisions are commonly rendered within 30 days Arbitrators seldom add substantial punitive penalties to their decisions If reinstatement is ordered, the arbitrator could order the company to pay the employee full wages that have been lost • Arbitrator’s Decision Criteria Most agreements require discipline to be for just cause The arbitrator must first determine if the issue actually occurred, then if it was a violation of the agreement Arbitrators commonly require progressive discipline and allow severe discipline for repeat offenses 1 21 Evaluating the Performance of the Grievance System 11 21 • Most employee complaints are resolved informally • Low grievance rates may be a sign that unions are not aggressively enforcing the terms of the contract • Time and Costs of Settling Grievances Two criteria that are commonly used to evaluate grievance procedures are the time taken to settle claims and the cost Although still shorter than litigation, the time to resolve an arbitration is increasing • In 2005, the average time for a settlement following the request for an arbitrator was 401 days – plus an average 163 days following the grievance filing • Litigation is typically 23 years In 2005, the average cost of arbitration was $3,732, compared to typically more than $10,000 for litigation 1 22 The Effects of Arbitration Decisions 11 22 • Some reinstated employees face hostility of supervisors and even fellow workers Those who appealed grievance decisions later had more negative performance and promotion experiences Supervisors of grievance filers also faced similar problems Thus, the process should be used with caution Both sides can learn from the grievance experience and benefit from such changes 1 23 Alternatives to the Grievance Procedure in the Union Sector 11 23 • The costs and delays of grievances and arbitrations have led to some alternative procedures Expedited Arbitration • Parties agree to speed the disputes and bypass certain steps and expedite time lines Grievance Mediation • Third party functions as both a mediator and arbitrator • Empowered to settle the dispute if mediation fails • Mediation settlements are quicker and less costly than arbitration cases (in 1985 it was $309 versus $1,300, and 19 days versus 52 days) 1 24 Conflict Resolution in Nonunion Settings 11 24 • The absence of a union does not eliminate the need for conflict resolution • Many employers have instituted complaint systems for nonunion employees These procedures are often the only direct recourse available to nonunion employees who feel they have been treated unfairly • These procedures are often less consistent in ensuring fair treatment than union grievance procedures 1 25 11 25 Reasons for Adopting Nonunion Grievance Procedures • There are three major reasons why employers adopt nonunion grievance procedures 1. A management strategy to improve performance of the workforce 2. Employers may adopt nonunion grievance procedures as part of union avoidance strategies 3. Employers may adopt nonunion grievance procedures to reduce the risk of litigation from employees. 1 26 Types of Nonunion Grievance Procedures 11 26 • While union grievance procedures are standard in structure, nonunion procedures vary greatly • At least half of nonunion firms have formal grievance procedures But many lack any procedures for resolution The most basic is the "open door" policy • The employee is invited to complain to the manager • Ombudsman are an alternative to traditional procedures They help to resolve complaints and conflicts among employees and managers 1 27 Integrated Conflict Management Systems • In recent years, a trend has emerged toward “integrated conflict management systems” 11 27 They use a systematic approach to preventing, managing, and resolving conflict by focusing on the causes Complaints by employees against supervisors, peer disputes, poor service, or team disagreements are some of the reasons for this trend Also, workplace disputes now include complex problems such as intellectual property and conflict of interest 1 28 Why Nonunion Employees Desire Complaint Procedures 11 28 • Employees in nonunion firms seek complaint procedures in part because they might challenge discharge • Without such procedures, courts have applied a doctrine called employment at will That doctrine stipulates that both the employer and employee are free to end the employment relationship at any time – provided the termination does not violate statutory constitutional provisions • Courts have loosened the employmentatwill doctrine in recent years, but there is still controversy surrounding the due process rights of nonunion employees 1 29 11 Differences between Union and Nonunion 29 Grievance Procedures • While both provide resolution for conflict, there are important differences between union and nonunion workplaces Unionized workplaces have established in collective bargaining agreements jointly by the union and management While the union represents the employee in the union setting, the employee typically represents him or herself in a nonunion setting Management makes the decision in a nonunion setting, not an arbitrator 1 30 11 30 Impact of Nonunion Grievance Procedures • Employees are less likely to use grievance procedures in a nonunion setting If the procedures contain "due process" procedures, they are more willing to engage in the process • Critics say that employees fear reprisals for filing grievances Surveys indicated that onethird who did not file grievances feared reprisals or feared little chance of success 1 31 Peer Review and Union Avoidance • In recent years, a number of firms have adopted peer review This is a particular type of complaint resolution procedure It is also an effective union substitution device Review panels are established to decide employee grievances Key feature is that the majority of members of the panel are peer employees of the grievant 11 31 1 32 Nonunion Arbitration and Employment Laws 11 32 • Arbitration has long been a feature of union grievance procedure • By contrast, use of arbitration has been far less common in the nonunion sector • But mandatory arbitration has grown in the nonunion sector, from being rare in the 1990s to approximately 15 percent by the mid2000s 1 33 Debates Over Mandatory Arbitration • Advocates say it provides a faster and more efficient mechanism for resolving employment law claims • Critics say that procedures are controlled by employers, suffer from potential bias of arbitrators, and move the adjudication of public employment claims from the public forum of courts to arbitration • Critics further worry that procedures will systematically bias the procedures in favor of employers 11 33 1 34 Due Process Models 11 34 • While the debate continues over the enforcement of mandatory arbitration procedures, there are new models for due process protections • In 1994, the U.S. Department of Labor's Commission on the Future of WorkerManagement Relations proposed a set of quality standards for fairness in nonunion arbitration • In 1995, the American Bar Association developed a similar "Due Process Protocol" for arbitration procedures • While courts continue to enforce mandatory arbitration agreements, they are expecting higher standards of due process in arbitration 1 35 Summary 11 35 Grievance procedures provide a mechanism to settle disputes that arise during the term of the agreement They typically include successive steps Contracts are complex and thus require an interpretive procedure such as arbitration Arbitrators consider past practice in the workplace in their decisionmaking process Arbitrators’ decisions can be overturned on the merits of the case if public laws are applied .. .Chapter 11 Administering the Employment Relationship McGrawHill/Irwin An Introduction to Collective Bargaining & Industrial Relations, 4e Copyright © 2008 The McGrawHill Companies, Inc. All rights reserved... Court held against “arbitrarily ignoring a meritorious grievance or processing it in a perfunctory manner; fraud, deceit, or badfaith conduct in the handling of a grievance; and refusal to handle a grievance out of personal hostility toward the grievant... investigating the grievance 1 17 11 The Connections between Grievance Procedures and 17 Other Aspects of the LaborManagement Relationship • Contract Bargaining versus Contract Administration The attitudes of the parties in negotiations typically carry