NOTE: This article should not be construed as legal advice. If you have a legal question, you should consult an attorney.
With the headlines splashed with dire news about orchestra managements seeking concessions from their players, attempting to avoid pension obligations, suspending operations, and filing for bankruptcy protection, an orchestra musician might be forgiven for wondering whether questions related to grievance handling and arbitration are superfluous to the essential business of maintaining and growing symphony orchestras. In my opinion, nothing could be farther from the truth.
First of all, those dire headlines tell only a small part of the story. We all know that there are many more orchestra boards and managers who have worked hard to weave their institutions deeper into the fabric of their communities, expanding authence and donor numbers, and nurturing institutional health. We have also seen that, even as certain orchestras struggle, their boards and managers strive to honor the commitments they've made to the musicians whose labor is at the heart of the symphonic enterprise.
More importantly, those institutions best weathering today's economic challenges are those with strong relationships among union, musicians, managers, and boards. In other words, good labor relations. Good labor relations are not magically bestowed upon an institution, nor do they simply materialize with a certain alignment of the stars. A beneficent CEO, who always accedes to the union's demands (should such an exotic creature ever be found), would not make for good labor relations any more than a union president who refused to challenge the employer's most flagrant contract violations because he didn't want to make waves.
No, as with any relations, what makes for good labor relations is a healthy measure of mutual respect, communication, and hard work. And just as functional families discuss and resolve their disputes and misunderstandings around the kitchen table, workplace disputes and misunderstandings are most effectively discussed and resolved at the bargaining table, which should not be reserved for use only during contract negotiations! In labor relations, the vehicle that brings the parties to the bargaining table between contract negotiations to discuss and resolve their differences is the collective bargaining agreement, and, specifically, the grievance and arbitration provisions.
Mention the words "grievance" and "arbitration" in a room full of orchestra musicians and someone can be relied upon to express the opinion that filing a grievance, let alone processing it to arbitration, is "too adversarial." Such statements betray an unfortunate and fundamental misconception about the role of grievance and arbitration in the collective bargaining context. Contractual grievance and arbitration mechanisms arose as an alternative to the tool unions historically used to obtain what their members wanted and needed from their employers: the strike. To understand the implications of this development, one need only consider for a moment the chaos that would ensue, if the only way in which employees, whose employer refused to voluntarily remedy a workplace wrong, could obtain such a remedy was to withhold their labor until the remedy was granted. Work stoppages would be commonplace, productivity would decline, and harsh economic consequences would follow for both employer and employee alike. Although courts (and the labor movement) initially took a dim view of grievance arbitration, that began to change during World War II, when the War Labor Board recognized that using arbitration to resolve disputes in the collective bargaining context was a way to ensure uninterrupted wartime production.
The role of labor arbitration was solidified in 1960, when the US Supreme Court issued the three decisions that have come to be known as the "Steelworkers' Trilogy." In those decisions the Supreme Court made several important holdings. First, the Court held that agreements to arbitrate disputes arising under a CBA are enforceable in court, regardless of whether a court believes the underlying dispute has merit. In doing so, the Court recognized that a grievance arises in the unique context of the workplace and may have more import to the parties than any court may be able to discern.
Second, the Court noted that in the collective bargaining context, grievance arbitration is the substitute for industrial strife and is, as a result, "part and parcel of the collective bargaining process itself." The Court recognized that collective bargaining is a "system of industrial self-government" and that no agreement could provide an answer to every question that might arise in the course of the employment relationship. Grievance and arbitration procedures therefore serve important functions as a means to "solv[e] the unforeseeable" and "as a vehicle by which meaning and content are given to the collective bargaining agreement." Accordingly, courts should apply a "presumption of arbitrability" and deny a request for an order to arbitrate only where it could "be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute."
Finally, the Court set the standard to apply in deciding whether to enforce an arbitration award. Although an arbitrator must interpret and apply the CBA and "does not sit to dispense his own brand of industrial justice," an arbitration award is enforceable so long as it "draws its essence" from the CBA. And a court should presume an award draws its essence from the agreement unless there is clear evidence to the contrary.
It would be hard to overstate the importance of the "Steelworkers' Trilogy" decisions in legitimizing grievance arbitration. But perhaps more important than judicial pronouncements is the fact that, as a practical matter, grievance and arbitration procedures work extremely well to resolve workplace disputes-when the parties use them! The multi-step grievance processes embodied in most of our CBAs allow the parties to resolve a dispute at the lowest possible level of the organization and before the parties' positions have become entrenched. Those early meetings also offer an invaluable opportunity for each party to better understand the other's position and learn whatever facts and motivations underpin a given position. If a dispute truly cannot be resolved at these early stages, even after thorough exploration of both parties' positions, arbitration is a very efficient species of litigation, and the overwhelming majority of labor arbitrators are highly competent and effective.
But in order to derive the maximum benefit from the grievance process, the local union, steward, and any representatives the musicians have elected to assist the union in contract administration (e.g., orchestra committee) must approach the process professionally and with the understanding that it is a central manifestation of the relationship between the union and the employer. Union representatives who know their contract and present a grievance in a professional manner-clearly articulating the substance of the grievance and the remedy sought, supporting the union's position with solid facts, and observing contractual timelines and procedures-will demonstrate the union's competence and earn the employer's respect. In doing so, the union sets a respectful, professional tone for the relationship, modeling the way in which the employer's own representatives should conduct themselves.
From the member's perspective, grievance handling is one of the most important things a union can do, perhaps second only to securing improvements in wages and working conditions. By processing grievances professionally, a local union, and the orchestra committees elected to assist it, can raise the stature of the union in the eyes of its members and build solidarity within the bargaining unit-solidarity that, in turn, fosters the employer's respect for the musicians and union that represents them.
None of this is meant to suggest that a union can simply grieve its way to good labor relations. Nor is it to suggest that good labor relations can be achieved without partners on the employer's side of the table who are willing to approach the relationship constructively. But in these times of challenge and opportunity we must not neglect any means to build and nurture productive relationships within our institutions. Because grievance and arbitration are central to good labor relations, union representatives, including local officers, stewards, and orchestra committee members, have a vested interest in becoming proficient at handling grievances professionally.
"By processing grievances professionally, local unions, and the orchestra committees elected to assist them, can raise the stature of the union in the eyes of its members and build solidarity within the bargaining unit."
by Rochelle G. Skolnick, AFM Symphonic Services Division Counsel, Schuchat, Cook & Werner…