How Unions Can Improve Their Success Rate in Labor Arbitration
Borell, Charles A., Dispute Resolution Journal
The author analyzed the arbitration win rates for unions over a 10-year period, confirming his hypothesis that "unions are not as successful as employers in the labor arbitration process." Then he sent a short survey questionnaire to 100 labor arbitrators asking them to suggest how unions can improve their success in labor arbitration. According to the author, the results were both expected and surprising. Many respondents suggested that unions take a more proactive role in deciding which grievances will be arbitrated, for example, by carefully screening grievances for merit and ceasing to arbitrate cases for political reasons. Many also suggested that unions settle more grievances prior to the arbitration hearing. More than a majority indicated that unions could be better prepared for the hearing and improve their presentations. One suggested that the union's advocates, representatives and witnesses all need to fully understand the union's theory of the case and the weaknesses of the employer's arguments before they appear at the hearing.
I attended my first arbitration hearing in 1981. I chair the grievance and arbitration committee at the International Brotherhood of Electrical Workers (IBEW) Local 97 and have held that position since 1998. My responsibilities as chair of this committee involve, among other things, screening grievances, selecting the arbitrator and preparing witnesses for the hearing. Over the last two decades, I have also served as Local 97's representative in many grievance arbitrations and as its arbitrator on tri-partite arbitration panels. I have also testified as a witness at arbitration hearings. Needless to say, I am quite familiar with labor arbitration at this particular union. As a result of this experience, I hypothesized that unions win less than 40% of the discipline cases. To determine whether this hypothesis is correct, I researched Local 97's performance in labor arbitrations over a 10-year period (from 1994-2004) using the union records in Syracuse. In addition, I researched union win/loss statistics for a 10-year period (from 1993-2002) using the statistics compiled by Internet Web site Arbsearch.com.1 I did not use Arbsearch.com's statistics for 2003 and 2004 because the database was still receiving decisions for those years.2
Union Win Rates
Local 97. I found 76 grievances during the period 1994-2004 involving Local 97.3 Of this total, Local 97 won in 17 cases, employers won in 47, and 12 were split decisions. Excluding the split decisions, the percentage of Local 97 wins was 26.6%.
Arbsearch Data. Arbsearch.com's statistics showed that in every year between 1993-2002, unions won fewer than 40% of the labor arbitrations. (See Table 1.) The average win rate for unions during that 10-year period was 36.3%.4 These results confirmed my hypothesis that employers win more labor arbitrations than unions.
Given that available statistics show that unions fare less well than employers, I set out to explore what unions might do to increase their chances of success in labor arbitration cases. Certainly, unions cannot expect to win all grievances they arbitrate. However, there are steps that unions could take to improve their success rate. These steps are discussed below.
Background of Labor Arbitration
Labor arbitration is generally divided into two categories: contract interpretation disputes and discipline disputes.5 In contract interpretation grievances, the burden of proof is on the union to convince the arbitrator that the grievance has merit. In discipline matters, the burden of proof is on the employer to convince the arbitrator that the discipline was just and proper. In certain discipline grievances, if the employer establishes a prima facie case, the burden of proof may shift back on the union.6
Arbitration is the preferred method of settling labor disputes in lieu of labor strikes or litigation.7 Two well-known U.S. Supreme Court decisions held that federal courts have jurisdiction over suits for violation of collective bargaining agreements (CBAs) in industries affecting interstate commerce. …