The Case Against Arbitration

The best place to settle grievances is right where they began ... on the job. Relying on arbitration can undermine your local union's strength and be unexpectedly disastrous.

Arbitrate? Sometimes we’re forced to. But taking grievances to arbitration can be expensive and dangerous. Why? Because, at best, arbitration is a third party process that does little or nothing to build union strength and, at worst, can set a bad precedent that will haunt workers in many places for many years.

UNDERMINING STRENGTH

Given our belief in rank-and-file unity, eagerness to arbitrate grievances can be a danger signal that a local’s organizational strength is suffering. The best place to settle a grievance has always been right where it began—on the job. The boss should know that all grievances will be backed by a unified and, if necessary, angry membership.

If very few grievances are settled on the job or in the early stages of the grievance procedure, then it may be time to take a good look at your local’s ability to send a unified message to the boss. Instead of building unity, arbitration can actually undermine organizational strength.

Think about it. Arbitration removes an issue from the workplace and it takes time. Instead of reinforcing the idea that "we—all of us—are the union," the attitude is developed that the union is some type of insurance agency: ‘file a claim and see what happens.’

POTENTIAL DISASTER

An ill-considered decision to arbitrate can also turn into a disaster. With the stroke of a pen, an arbitrator can undo hard-won contract language—and, as many trade unionists have found out—what we lose in arbitration we rarely recover in negotiation.

Arbitrators have considerable freedom to frame their decisions and the outcome may be completely unexpected or irrational. In one case, an arbitrator ruled the company was wrong—but he had developed such a dislike for the grievant that he refused to provide a remedy.

Fighting mandatory overtime through arbitration, a local in another union was shocked when the arbitrator decided the company and the union ‘wouldn’t have negotiated overtime pay provisions if "reasonable" mandatory overtime wasn’t expected.’ The decision was bad enough but it set a precedent that has been used repeatedly in other cases involving similar contract language.

ARBITRATE ’TIL YOU DROP!

Finally, arbitration is expensive and there are plenty of bosses who would love to bankrupt a local union by pushing every grievance to arbitration. The best rule of thumb: always try to win organizationally; consider arbitration only if there’s no other course. And, always consider what will happen if the case is lost.

Remember, the arbitrator’s decision may be binding until your contract language is changed. The common experience: union’s seem to run about a 50-50 chance of winning discharge and discipline cases, but a much lower percentage of cases involving contract language. Arbitrators seem much more likely to defer to the "management rights clause" than support the union’s interpretation of the contract.

IF YOU HAVE TO...

We know it’s sometimes necessary to arbitrate. Pick your cases carefully and make sure they’re strong. Be very careful where contract language is concerned. And, try to take the long view: is it likely that a particular principle can be won through a stronger case in the future? Or, should the issue be saved for the bargaining table?