You be the Arbitrator Management Rights

At the end of each chapter is the summary of an actual grievance case that could not be decided by management and union representatives and thus as provided in the CBA (Collective Bargaining Agreement) at the request of either party was referred to an arbitrator to make a “final and binding” decision that both parties have agreed to accept. You are required to perform the duty of an arbitrator (judge) and carefully read the facts, relevant section(s) of the CBA which are provided, and the positions of the parties, and then make a decision. Arbitrator decisions contain two parts: an “award”—one side or the other has asked for something that the other has not agreed to, for example, in cases involving a terminated employee, the union may have asked that the employee be reinstated in their former position and be given back pay equal to the pay he or she missed—thus the award might or might not grant one or both requests; the second part is an “opinion”—a statement explaining why the arbitrator made the award, often citing critical facts of the case, a position of one of the parties, or even common sense. Arbitrators, as discussed in a later chapter, in making their decisions, usually look first to the relevant section(s) of the CBA (which may be silent on the issue, vague, or contain two relevant sections that are in conflict). The language of the CBA is the most important factor to be considered by an arbitrator. If the CBA language does not enable the arbitrator to make a decision, then he or she looks at the facts and other evidence presented, past practice (what actions were taken in similar cases in the past), relevant facts from past negotiation sessions, and common industry practice to reach a decision. Keys to making good arbitration decisions are as follows: (1) start and remain objective—set aside any feelings about unions, management, and so on, (2) first look to the provisions of the CBA for direction—if the language is vague or if two sections are in conflict consider what was the likely intention of the negotiators, (3) carefully consider past practice—the lack of consistency compared to similar cases may be significant, and (4) does the penalty equal the offense—in some cases guilt is not the issue, instead the issue is the penalty applied equal to the level of the offense—especially in employee termination cases. Also consider whether the penalty was applied equally to others in similar past cases. You can, with the experience of deciding these cases, become a good arbitrator! QUESTIONS 1.  As arbitrator, what would be your award and opinion? 2.  Identify the key, relevant section(s), phrases, or words of the collective bargaining agreement (CBA), and explain why they were critical in making your decision. 3.  What actions might the employer or the union have taken to avoid this conflict?

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