At a Training Session…

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This month’s article is being provided by John Dunphy. John is the owner of the bookstore The Second Chance.

At a training session, an audience member asked a veteran labor arbitrator this question: What is your view of an employer who doesn’t settle and forces the union to take every case to arbitration? Below is a summary of his answer:

That’s an idiotic position for the employer to take. I suppose the employer doesn’t want to appear weak, and let me address that point later.

A settlement is a form of empowerment. You have two choices: you either take control of the outcome and decide what you can live with, or you turn it over to a labor arbitrator. I am an arbitrator, but if I was an advocate, I would like some control over my own affairs. An employer that adopts a policy of ‘we never settle’ is dis-empowering itself. Why would anyone do that?

I suppose there are some employers who have this policy because they want to bankrupt the union but that is really counter-productive. You’re in a relationship with the union. What you do doesn’t just affect the case before you, but everything that follows.

As for not wanting to appear weak, these are cases which should be settled and don’t have anything to do with appearances of strength or weakness:

1. It’s a “one-off” case. The issues to be arbitrated are not going to come up again.
2. The costs to the parties are significant. I am not talking about financial costs. I am talking about human costs. I heard a case where both sides had aggressive advocates. The advocates explained who would be called to testify. And I had this vision of blood on the floor. During sidebar conversations, I laid out my concerns and no one is countering my concerns. Two hours later the parties settled that case. Here’s my point: if the human costs are going to be high, there has to be a Plan B. In life, there is always a Plan B.
3. EAP cases should not go to arbitration. This is especially true when the grievant is a first-time candidate for the EAP. It doesn’t matter to me whether the contract or policy provides for it or not. Everyone should have at least one opportunity to use the EAP. That’s what it’s there for.

I understand there are some cases which are so radioactive that they cannot settle. I would guess that is 5 percent of the total number of cases out there. And it is radioactive not because of the merits, but because of external factors such as publicity or the union president is being discharged. Here’s my point: that leaves 95 percent which are candidates for settlement.

Let me give you an example of a case I recently heard:

We were in an off-the-record discussion in the hallway. The lawyers for both sides were there, and the company lawyer says to me, “My client does not want this employee back.” And I bluntly said: “I don’t care. If I find there was not just cause, he will be going back.”

We were in the hallway again. At this point, the union had introduced evidence of other horseplay that had gone undisciplined. So, I told the parties: I haven’t heard all of the evidence yet, but this evidence resonates with me. As it turned out, management had fired two supervisors for being lax. Somehow, the management advocate didn’t think that was relevant.

All of this discussion and more, which should have been between the parties, showed that it was not a discharge case. At most, there should have been a suspension and the case should have settled on that basis.

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