Arbitration, Unions and Catholic Social Teaching
A guest contribution from Catholic Labor Network member Michael Loconto. Michael teaches arbitration to union staff and officers at the Boston Labor Guild.
In the contentious world of labor relations, disagreements between workers and employers are frequent. Collective bargaining agreements offer methods of self-help to the parties: grievance processes compel management and labor to meet and discuss dispute resolution. When an impasse cannot be overcome through a grievance procedure or contract negotiations, a neutral and impartial third party may be called in to resolve the dispute.
Arbitrators and mediators are alternative dispute resolution (ADR) providers, mutually selected by the parties to serve in place of costly and time-consuming court systems. Mediators help the parties reach agreement on an issue by facilitating dialogue and lifting up voices, drawing out the strengths and weaknesses of arguments, and by helping to establish mutually shared interests that provide a foundation for resolution.
When employers and workers cannot agree to settle a contract or resolve a grievance, arbitrators may be called upon to issue a final and binding resolution. Arbitrators are both empowered and limited by the terms of the collective bargaining agreement. That contract is a product of negotiation between workers and employers; a set of established rules and norms for the workplace that represent collaboration and compromise between management and labor.
A former judge recently attacked the grievance arbitration process in an editorial calling for police union reforms, asserting as evidence of a broken system one finding that more than half of all disciplinary cases had been overturned in a large urban department. Such criticism ignores the social values of dignity and agency that are present in the arbitration process, exemplified by the principle of just cause and the reality that managers who administer discipline are human and may be susceptible to error and bias in the same way that employees may be capable of committing offenses worthy of discipline. At arbitration, the appropriateness of a penalty is reviewed through the lens of progressive discipline, which calls for corrective rather than punitive measures intended to provide the employee with an opportunity to correct behavior. Arbitrators also guard against disparate treatment among individuals found responsible for similar offenses.
Anthony Annett writes about labor and management sharing a joint vocation in Cathonomics. Unlike the winner-takes-all approach of litigation, no matter the outcome at mediation or arbitration the parties must show up at the workplace the next day and resume working shoulder-to-shoulder. While the losing party may be disappointed by the outcome in an arbitrated dispute, employers and workers can have confidence in the expectation that an unbiased and objective arbitrator will consistently apply the terms of their collective bargaining agreement to resolve disputes. This stability is key to industrial peace in a long-term collective bargaining relationship.
I have not read the article to which Mr. Loconto takes exception. (A link or citation would be helpful.) From what Mr Loconto writes, it appears the article may have opposed the use of arbitration in all cases involving law enforcement agencies with unionized work forces. If that is a fair representation of the argument to which Mr. Loconto is responding, then I am in general agreement with him.
However, there is a class of police arbitration cases that are very troubling. That class consists of cases arising from discipline imposed upon an officer for detention of or use of force against a person the officer encounters in her work. Often the misconduct alleged in such a case amounts to a violation of rights protected by the Bill or Rights or other law. In those cases, the officer’s superiors, who are themselves government officials, have a responsibility to protect the community they serve from the officer’s alleged misconduct.
But if every effort to impose discipline is subject to review by an arbitrator, who generally is not a government official and has no duty to protect the community from police violence or other abuse of authority, then it becomes too easy for executives in the law enforcement agency to shirk their responsibility, claiming that if they impose appropriate discipline, the arbitrator will overrule them.
A good argument might be made that a collective bargaining agreement by which government officials essentially delegate final responsibility for discipline in such cases to an arbitrator is against public policy and aught not be enforced.