Arbitration overkill

Russell
Russell Wangersky
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A couple of things, right off the top: I’ve been a union member, and I’ve been in management. Heck, in management, I’ve had grievances filed against me by union members, a process that isn’t much fun.

All in all, though, I think there are plenty of benefits to having strong, active unions and collective bargaining — unlike commentators who feel everything would be better if union workplaces were dragged down to the same wages and benefits as non-union shops, I take a different view. 

Better pensions, better benefits and a better standard of living are something we should all strive for — if unionized workplaces get there first, well, perhaps we should be trying to emulate those workplaces, rather than looking for reasons to get rid of them and drag everyone back down.

But sometimes you look at parts of the union/management process and shake your head. Just as some businesses have fallen by the wayside, some of the convoluted processes of the great arbitration cycle could easily stand to be grandfathered out of existence.

Recently, an arbitration case involving a St. John’s hotel and a server in the hotel’s restaurant made its way into a national court database.

(There’s really nothing to be added to all this by identifying either of the parties involved.)

The nuts and bolts are simple. Back in December 2013, the server, a full-time employee, wanted to “bump” a casual employee and change her shift to one she preferred. The hotel’s management said no. The server grieved the decision and her union took up the cause.

The hotel argued that changes in the collective agreement from 2006 meant that staff weren’t allowed to bump to get a preferred shift. The union argued — successfully, as it turned out — that the 2006 change applied only to senior full-time staff bumping staff with less seniority out of shifts the senior staff wanted. Bumping casual staff was still fair game.

It’s good to have a decision on an issue that’s unclear, and there is now a decision. The problem I have is the ponderous, formal way that decision took to be reached.

The case went to arbitration, a system that saw a paid arbitrator appointed to hear the case — both the hotel and the union had their own counsel to present evidence, and present they did. Seventeen pieces of paper were introduced as exhibits. The union called one witness, the hotel called three. The arguments were made over two days in late February — after that, the arbitrator worked on a decision, which was filed May 8.

The arbitrator’s decision ran to 10,081 words. Thorough, yes. Definite? Also, yes. 

Here’s how it ends: “The grievor was entitled to exercise the right to bump a shift on Dec. 13, 2013. The employer violated Article 10.06 (e) of the collective agreement when it denied the grievor’s right to bump. The employer is ordered to cease and desist from the practice. The arbitrator reserves jurisdiction to decide any issue of compensation.”

No doubt, the whole issue will come up again the next time the employer and the employees make their way to the bargaining table, but in the meantime, I hesitate to even imagine how much the whole process has cost, not only in pay for lawyers, the arbitrator’s paycheque and the lost time of all the witnesses.

I would suggest the cost, including prep time and rental of hearing space, is close on the low six figures anyway.

You can say it’s the principle of the case; to that, I’d really only politely say there has to be a better way. It’s the equivalent of addressing a housefly problem with a sledgehammer.

Unions can do great things: the power of a collective group of employees is sometimes the only thing that can persuade an intransigent employer to pay a living wage and to share in the benefits a business generates.

There is a point, though, where common sense starts to look extremely uncommon.

 

Russell Wangersky is The Telegram’s news editor. He can be reached by email at rwanger@thetelegram.com.

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  • Douglas Collins
    July 15, 2014 - 12:32

    I've been an arbitrator in California for over 30 years and I couldn't agree more. Indeed, in virtually every case I take the attorneys into the hall, usually after opening statements, and ask if there's a way to resolve the matter. Many cases settle at that point, albeit some take hours of negotiation by the parties, I'm still surprised to hear the attorneys say, "we haven't talked," or to find out that they really have no idea what's on the table. The solution is really very simple: make proper use of the grievance procedure (the several steps before arbitration), including mediation if necessary. Otherwise, I remain happy to take the parties' money.