| In addition to wages, hours, and benefits, one of the fundamental elements of the labor agreement between a company and a union is the procedure for filing a grievance. Grievance procedures refer to the process by which employers and employees deal with disputes over contract terms, disciplinary actions, and terminations. Based on the nature of the issue and the level of disagreement, these procedures range from simply filing a complaint to a full-blown lawsuit. Somewhere in the middle is arbitration.
Arbitration is the choice of many companies and unions to resolve disputes, as it is typically quicker and less expensive than a trial. It also has the benefit of a third party arbitrator, who can review the material of a specific case and make an objective ruling. That said, however, neither party benefits from sending every disagreement to arbitration. Thus, most contract negotiations (and the resulting contracts) include a list of the types of grievances that may be resolved through arbitration and a detailed grievance procedure to be followed before a case is turned over to arbitration.
Substantive Arbitrability
In simple terms, substantive arbitrability refers to an issue that may be arbitrated. Collectively, these issues (agreed upon by the parties involved) are known as arbitrable grievances. It is this agreement of arbitrability that gives jurisdiction and authority to the third party arbitrator.
Occasionally, the grievance procedures outlined in a contract are broad. There may be virtually no distinction between a grievance and an arbitrable grievance. Here, everything from suspensions and firings to company dress code policies may be resolved in arbitration
Some contracts, on the other hand, will provide strict parameters for what may be brought to arbitration. A common example is a limitation to issues regarding disciplinary actions or the dismissal of an employee. Based on the specificity of the language used, either party may restrict what matters may go to arbitration.
Most often, it is the company that is seeking to limit what is arbitrable. This is because is it typically the union that is the grieving party. Occasionally, however, the union has a vested interest in keeping certain issues non-arbitrable. This is true because part of an arbitration agreement is the agreement not to strike. Hence, a union may forfeit the right to have certain disputes arbitrated to maintain its right to strike.
Of course, since the whole point of arbitration is the resolution of disputes, it is not surprising that there are often disputes over what is arbitrable. This may arise from a situation that was never considered during contract negotiations, a disagreement in the definition of arbitrable grievances in the contract, or from dissatisfaction with the proscribed (non-arbitration) dispute resolution procedure in place. When there is no clear agreement that a case should be resolved through arbitration, the arbitrator has no actual authority. Any decision made under these circumstances may be appealed to a court and (possibly) deemed invalid. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |