History, Goals And Effectivness Of Grievance Process

HISTORY, GOALS AND EFFECTIVNESS OF GRIEVANCE PROCESS 2

Abstract

This paper will discuss the history of labor arbitration related to the grievance process by examining the forces that shaped our current system for alternative dispute resolution.

The effectiveness of using the grievance processes to settle labor disputes and the goals of ADR will also be explored.

HISTORY, GOALS, AND EFFECTIVNESS OF GRIEVENCE PROCESS 3

While it may not have been called "alternative dispute resolution", the process for settling disputes using arbitration dates back to the earliest recorded times. "Arbitration is probably as old as human society." (Bales, Cooper, Nolan, 2005, p.2). In the early days of arbitration regarding labor disputes, this process for settling grievances may not have been the most effective method to use due to the lack of support received by the courts. There would have been no way to enforce the outcome of the ADR ruling before the passage of the Federal Arbitration Act, the Uniform Arbitration Act, and Taft-Hartly, which each played a role in ordering the courts to uphold arbitrated decisions. Prior to these acts the courts believed that arbitrators had no authority to settle labor disputes. "Now we all know, that arbitrators, at the common law, possess no authority whatsoever...hence it has been said, that the judgment of arbitrators is but rusticum judicium." (Bales, et al., 2005, p.4). It is an interesting aside that, while the early courts did not appreciate or respect ADR, Global Arbitration Mediation Association reports, "The federal government has promoted commercial arbitration since as early as 1887, when it passed the Interstate Commerce Act. The Act set up a mechanism for the voluntary submission of labor disputes to arbitration by the Railroads and their employees." (Global Arbitration, n.d.).

During World War II the creation of the War Labor Board, which was the precursor of the modern National Labor Relations Board, created a pool of skilled arbitrators, defined the processes and rules for ADR, and had a large impact on the number of labor agreements that contained arbitration clauses, (Bales, et al., 2005, p.10). The creation of the WLB and NLRB in conjunction with the courts upholding ADR

rulings opened the way for ADR to become the standard for labor dispute resolution in both unionized and non-union workplaces.

In addition, as noted in the class discussions, "The Supreme Court's 1960 Steelworkers Trilogy assures the primacy of private arbitration for the resolution of private sector labor disputes. In the first case of the Trilogy, United Steelworkers of America v. American Manufacturing Co., the Court held that if the parties agree to arbitration (which they do in 95% of all collective bargaining agreements), even a "frivolous, patently baseless'" claim must be referred to arbitration. Then the Court held in United Steelworkers of America v. Warrior & Gulf Navigation Co. that arbitration clauses should be construed to require arbitration of all grievances unless an objecting party can present "the most forceful evidence of a purpose to exclude the claim from arbitration." Finally, in United Steelworkers of America v. Enterprise Wheel & Car Corp., the Court drastically limited the scope of judicial review of arbitration awards." (Casto, 1984). These rulings and laws created the space in which the ADR process with regard to workplace grievances could grow and become recognized as a valuable method of achieving resolution when grievances occur. These rulings also created an environment where ADR could become an effective tool in both union and non-union workplaces.

HISTORY, GOALS, AND EFFECTIVNESS OF GRIEVENCE PROCESS 4

The Steelworkers Trilogy effectively created a legal environment where businesses could regulate the grievance process and labor disputes in their organizations utilizing arbitrators, a company representative, and the employee. This process of direct communication during the ADR process is much faster and more efficient than the lengthy court process and typically results in better outcomes for all parties involved with less animosity. Brown, Cervenak, and Fairman (1998) write, "they can also reduce cost and time to resolve disputes and increase disputants' satisfaction with outcomes."

The goal of alternative dispute resolution in labor disputes is to provide a mechanism outside of the judicial system that is faster, less costly, able to utilize arbitrators that are skilled in both arbitration and the industry involved, and hopefully to

allow an amicable resolution that is a win-win for the parties involved. "The goal of ADR is to provide a forum for the parties to work toward a voluntary, consensual agreement, as opposed to having a judge or other authority decide the case." (Alternative Dispute

Resolution. n.d.).

The following chart is a good illustration of the goals and possible satisfaction outcomes of ADR.

COMPARING ADR AND COURT PROCEDURES:

HOW LIKELY ARE THEY TO ACHIEVE DISPUTANTS' GOALS?

Disputant's Goals ADR Procedures