Labor Arbitration: National Policy & Dispute Resolution

• Labor disputes in the enterprise system arise from labor and capital seeking a fair share of industrial production.
• Society and disputants recognize the need to minimize production stoppages from disputes and see arbitration as an effective solution for this
• Arbitration is seen as a matter of national policy.

Arthur J. Goldberg Quote

• Goldberg, while a Supreme Court Justice, highlighted the role of arbitration.
• The US Arbitration Act, Labor-Management Relations Act (LMRA), and state statutes reflect legislative support for voluntary arbitration.
• There is a favor towards using it to resolve disputes peacefully, promptly, and justly.

Joseph A. Jenkins Quote

• Jenkins of the National Labor Relations Board (NLRB) calls arbitrators "peacemakers" because of their ability to maintain good relations between conflicting societal forces, whether public or private.
• This work explores labor-management arbitration along with its questions and challenges as confronted by involved parties and arbitrators.
• Actual awards analysis provides information on realistic implementation and solutions

Arbitration Defined—Historical Background

• Arbitration involves a simple process where parties voluntarily select an impartial judge to decide a dispute, agreeing in advance to accept the decision as final and binding
• Dispute submission to arbitration may be legally compulsory, but "arbitration" refers to voluntarily arbitration where parties voluntarily agree to arbitrate differences, it becomes obligatory upon either party to arbitrate when the other requests
• Even with a voluntary arbitration agreement, the process is only used if at least one party wishes to pursue it.
• Arbitration is an ancient institution tracing back centuries before English common law.
• One court has called it "the oldest known method of settlement of disputes between men."
• King Solomon was an arbitrator, utilizing procedures that are similar to today's methods.
• Phillip II of Macedon included arbitration in a treaty of peace with southern Greece city-states circa 338-337 B.C. for disputes over territories.
• George Washington believed in arbitration.
• He specified arbitration to settle any disputes over his will.
• Three impartial and knowledgeable men would decide the disputes stemming from it.
• The men are to be selected by the disputants.
• The decision should be free from legal constraints.
• The decision should also reflect the testator’s intent to be considered binding as though it were handed down by the Supreme Court.
• Commercial arbitration serves as an alternative to court action for settling business disputes.
• International arbitration is used to resolve differences between nations that could potentially lead to war if unresolved.
• The use of international commercial arbitration is becoming more common
• Labor arbitration development in the US began in the late 19th century.
• It advanced after the US entered World War II.
• Commercial arbitration arose as another option to court action; labor arbitration occurred over strikes.

Collective Bargaining, Mediation, Fact-Finding, and Arbitration

• Labor-management arbitration parallels the development of collective bargaining.
• Professional athletics serve as a recent example, arbitration was quickly integrated following the introduction of collective bargaining.
• Collective bargaining happens in the first stage and arbitration takes place during the last stage.
• Conciliation, mediation, and fact-finding occur in between.
• Conciliation aims to serve as an aid to negotiations
• Conciliation is completed absent a third party.
• Mediation involves the presence of an outside, third party.
• Mediation and conciliation aim to find compromise, which does not involve the mediator making any decisions.

Grievance Mediation

• Grievance mediation, a hybrid form mixing mediation and arbitration, addresses situations where arbitration has become perceived as too slow, expensive, or formal.
• Following the final step of internal grievance procedures, any unresolved issues are mediated instead of immediately arbitrated.
• Those grievances that still cannot be resolved through mediation are then sent to arbitration.
• The mediator cannot serve as the arbitrator, and related proceedings are not admissible in the formal arbitration process.
• Tested in the bituminous coal industry with positive outcomes over two and a half years.
• Successful arbitration in collective bargaining has promoted calls to protecting unorganized employees with a similar process
• The National Conference of Commissioners on Uniform State Laws created a Uniform Employment Termination Act allowing nonunion employees to seek arbitration for dismissal.
• Public-sector statutes often authorize bargaining for use of mediation, fact-finding, and interest arbitration to resolve impasses during contract negotiations.
• Statutes are frequently challenged with limited success and provide constraints on the arbitrator's power to determine economic issues.

Arbitration as a Substitute for Work Stoppages

• Civilization involves submitting to factual tests and providing reasons instead of resorting to conflict
• Industrial peace requires consistent work; conciliation, mediation, and voluntary arbitration mark civilization, fighting distrust and force.
• Settling labor disputes on rights should follow judicial methods rather than strikes and lockouts.
• Voluntary arbitration provides an alternative to strikes/lockouts.
• The Supreme Court recognizes arbitration "is the substitute for industrial strife."
• The US sees the right to strike as a crucial economic freedom, but it can be misused.
• Work stoppages can occur because a party is unwilling to back down.

The Purpose for Arbitration

• Arbitration allows the arbitrator to be objective, yielding decisions based on true merits.
• There is a surrender of employer power to make unilateral action and party abilities to support their views via exhibits of economic strength.
• Trust issues form the basis of arbitratrion's detractors.
• Management argues that it replaces their experienced judgment with an outsider.
• Labor feels that risking their freedom to strike in exchange for an outside decision is too risky.
• Initially uninformed outsiders become enlightened as both parties provide views, and the outsider has law-like decisional responsibility.
• Procedures that make arbitration the final step in grievance processes prohibits strikes and lockouts on arbitrable problems.
• The Supreme Court believes a 'no-strike' obligation means an agreement and a strike breaks it even without an official no-strike clause.
• There is a natural inclination for labor and management to set arbitration as the final step for contract interpretation and application disputes.
• Around 96% of collective bargaining agreements in key industries in 1976 set arbitration as the terminal point of grievance machinery.
• There weren't any reported grievance arbitration eliminations during the 1980s concession bargaining.
• Arbitration's contribution to employer-employee relationships recognizes its value even when workers are unrepresented by labor unions.
• The American Arbitration Association has crafted Employment Dispute Resolution Rules.

Advantages of Arbitration Over Litigation

• There is expertise of specialized tribunals and saving time, money, and trouble.
• Courts in some places admit that parties in collective agreements have legally enforceable rights.
• Expensive, prolonged, complex court procedures ill-suit unique labor-management needs.
• Arbitration, by contrast, is satisfactory due to its quick decisions made by people knowledgeable on the subject.
• The US Supreme Court has noted, arbitration is the better method of conflict resolution under such agreements.
• Parties engaged in industrial disputes must accept an existing judgment/award.
• Courts of particular jurisdiction are not familiar with labor relations concerns.
• Arbitration keeps growing in use.

Arbitration in the Public Sector

• Public employee disputes are on the rise post-1960.
• There is an increased organization and collective bargaining.
• Federal and state employees often cannot strike.
• If they can't strike, a neutral dispute resolution mechanism becomes quite important,
• Grievance arbitration studies suggest how public and private issues are the same.
• Authors report how principles from the private sector are being used in the public sector also.

AAA and other Roles

• Public sector arbitration will likely impact coming private sector improvements.
• Many public sector arbitration verdicts get cited.
• Book cases integrate both public and private areas.
• Arbitration is more than the substitute of work stoppage and litigation.
• Arbitration serves as a substitute for court litigation and consideration for no-strike pledge and facilitates self-government.

War Labor Board

• The National War Labor Board work gave important use of arbitration.
• Created by executive order in 1942.
• It provided for statutory arbitration with the War Labor Disputes Act in 1943.
• Most decisions involved collective agreements.
• Board's policy mandated clauses using arbitration for all future disagreements over a particular agreement

President’s National Labor-Management Conference of 1945

• Held to build industrial peace through studying major causes of strife and ways to prevent it.
• Representatives attending included the American Federation of Labor, the United States Chamber of Commerce, the Congress of Industrial Organizations, the National Association of Manufacturers, the United Mine Workers of America, and the Railway Brotherhoods.
• The Conference recommended parties use good-faith bargaining when setting new contract terms.
• If needed, conciliation and voluntary arbitration must happen.
• However, before taking arbitration, parts must concur on decided issues, submission terms, and arbiter's principles plus aspects.
• Conference advised that all unsettled complaints and disputes should receive determination from an impartial board.

Agreement should provide the following:

• A solid mutually agreed-upon methods of election.
• No adding or removing, but only interpreting existing facts of agreement.
• Reference of problems should occur only if earlier techniques exhausted.
• Both parties accept decision, and costs are split.
• All questions not using existing agreements get subject to talk.
• It gets followed by other procedures to settlement

Compulsory Arbitration

• Many issues regarding compulsory arbitration help understand voluntary option.
• Department of Labor has noted is a method of resolving employer-labor disputes by a government group.
• Otherwise is is required by law.

Arguments against it:

• Contrary to free collective bargaining.
• Produce problems.
• Great enforcement concerns.
• Harmful impact on economic structure.

Detailed Aspects:

• Compulsory clashes with negotiating freely.
• Reluctance to talk compromises as they can prejudice position in arbitration.
• Removing strikes eliminate most incentives to compromise now at parts' disposal.
• May just pretend, thinking better via negotiation.
• As all differences go there either way, all terms get listed and few pulled.
• Process is undemocratic.
• Parts will pick who and rules
• It may put certain law/regulation which are not customized to fit every person at disposal.
• Imposing decision will make satisfying to each part hard, not coming up with ideas.
• Compulsion sparks dissent and is trouble source.
• Enforcement could prove tricky.

Australia

• The nation has most knowledge with mandatory forms (for over 70 years).
• Experts aren't clear over levels of success, but all agree with no strike removing success.

Arbitration Law

• In 1963, Congress passed landmark law about it.
• It provided compulsory arbitration.
• In 1920, Kansas made one setting up courts to do with interest.
• Supreme Court then thought it was law of due process.
• State statues must now meet federal act.

Arbitration Costs

• A series can attribute to the final charge of any case.
• Parts' power has capacity to lower amounts, like avoiding slowdowns, proper preparation for everything, use cases or not, and other aspects.
• Case price is less compared to when it goes to that position directly due at how little it needed.
• Price gets high.
• Amount good when compared to services.
• In various places, cost the most.
• They should concur early when discussing money.
• Ad hoc arbitrators ask time and expense.
• Permanent one is on retainer at rate.
• Ratio of study is not realistic.

National Academy of Arbitration

• One has existed since 1947 to keep standards for conduct.
• It promoted labor for all in such way.
• It'is non-profit and exists out of professional and honorary association.
• Also does extensive education.
• A bureau produces meetings and all reports for general public.