Grievance and Arbitration: Tools for Building Relationships

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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. …