Copyright 2010. Pfeiffer.
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.
CHAPTER 22
CRITICAL RESEARCH
ISSUES IN TALENT
MANAGEMENT
Rob Silzer
In general, research on talent management in organizations has
been limited (see Gubman, 1998; Lawler, 2008; Lewis & Heckman,
2006), although much has been written about specific talent management components such as recruiting, selection, and performance management. Doing rigorous research in organizations is
challenging because of the complexity of field research and the
limited ability to hold some variables constant while others are
studied. The field also lacks agreement on the appropriate type and
level of outcome measures to use.
Many of the previous chapters make suggestions for future
research in specific areas of talent management. This chapter
discusses the talent management areas that would benefit from
further research investigation (see Table 22.1).
Key Strategic Links
At the beginning of this book, we identified the key strategic links
in how talent management can be ingrained in a business organization. While business managers have generally developed strong
links among the business environment, the business strategy, and
business results, this process in the past has often bypassed human
resource (HR) and talent management systems. Business executives
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Strategy-Driven Talent Management
Table 22.1. Talent Management Areas That Need
Further Research
Strategic issues
Key strategic links
Organizational talent strategy and
talent models
Talent as a driver of business strategy
Programs and processes
Talent model for individuals
Talent programs and practices
Talent pools and differential
investment
Talent decisions
Outcomes and cultural issues
Talent measures and outcomes
Organizational acceptance
Talent expertise
Talent management talent
and human resource professionals are increasingly likely to see talent management as a core business process that has a major role
to play in linking business strategy to business results. However, the
links between these business elements are not yet well developed,
and many of them are relatively weak (see Figure 22.1).
A critical area for research is investigating these links and
identifying the factors that strengthen or weaken the links. We
probably have better insight into the link between a talent strategy and talent programs and processes than for the other links
in Figure 22.1. In this area, some HR and talent professionals are
experienced and knowledgeable. But linking these at the front
and back end with business practices is a relatively new field. For
example, which changes in talent can directly result in strategic
gains for the company?
Key research questions are:
• What is the most effective talent strategy for achieving a particular business strategy? What key factors are most important to consider when choosing a talent strategy (such as talent availability,
business conditions, business strategy time frame, or others)?
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Critical Research Issues in Talent Management
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Figure 22.1. Strength of Key Strategic Talent Management Links
Business
Results
Weak
Weak
Moderate
Weak
Strong
Measurement
of Progress
Strategy-Driven
Talent Management
Processes
Talent
Strategy
Business
Strategy
Business
Environment
Strong
• How can we design the most efficient and effective talent
programs and processes that have the greatest likelihood of
achieving a talent strategy?
• How do we measure the impact of those talent programs and
practices on achieving the talent strategy, and if they are ineffective, what diagnostic process should we use to identify and
fix the underlying problem?
• How can we clearly understand the link between the success of talent programs and processes and the achievement
of business results, achievement of the business strategy, and
organizational success? What processes and conditions contribute to a stronger or weaker impact? What other variables
(such as product development and technology) also contribute to these outcomes, and how can we identify the independent contribution of talent?
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Organizational Talent Strategy and Talent Models
There has been some discussion in the HR profession regarding
talent strategies, but frequently this gets reduced to focusing on
specific talent programs and processes rather than choosing a
broad approach to talent. There needs to be a greater understanding of which broad talent strategies are most effective for specific
business conditions and strategies. For example, Leslie W. Joyce
(see Chapter 3) presents a buy, build, borrow, or bind model of
talent strategies and discusses the benefits of each. How can we
measure the effectiveness of each strategy, and when should an
organization switch talent strategies? Can we identify a talent ROI
(return on investment) for each strategy (given specific objectives and business conditions)? What impact do limited financial
resources or limited talent resources in a geographic location
have on talent strategy choice? Many organizations have a broad
cultural bias for selection or development approaches. What business conditions favor one approach over the other? What are the
benefits and drawbacks of having a strong preference for one over
the other, and how can we achieve the right balance?
Implementing and measuring the impact of various talent
strategies are also areas of interest. How do we operationalize
specific talent strategies in the most efficient and effective way?
Some companies have talent strategies or talent brands that are
well known. Do these talent brand strategies actually provide
some competitive advantage by attracting the desired talent, or
do they just provide marketing publicity? Most of the evidence
here is self-report survey data. How do we more objectively measure the outcomes of a broad talent strategy and determine if the
strategy is successful? If the organization is not achieving its business goals, how do we know whether to change the talent strategy
or just the specific programs?
In thinking about broad talent management models (see
Chapter 1 by Rob Silzer and Ben E. Dowell and Chapter 2 by
Marcia J. Avedon and Gillian Scholes), can we confirm various
stages in the development of an effective talent management system? What evidence is there for the effectiveness of different talent management models? What aspects of these models actually
provide the most sustainable competitive advantage?
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Key research questions are:
• What talent strategies are most effective, under what conditions, and for which business objectives and strategies?
• How can a talent strategy easily be converted into specific
programs and processes that are effective and efficient?
• Is there a single general model of talent management across
companies, or does it vary for different companies and business conditions?
Talent as a Driver of Business Strategy
Many organizations now see their internal talent as a competitive
advantage that is critically important for delivering on existing
business strategies. However, only a few see their internal talent as a major influence on driving or determining future business strategies. How can organizations evaluate current talent
and build new business strategies around them? For example,
Capital One Financial leveraged its existing internal fungible talent to pursue new businesses beyond the credit card industry.
Human Resources is now being encouraged to step up to these
opportunities and take a leadership role in shaping, rather than
just responding to, business strategies. In this regard, Human
Resources should be contributing to the company’s strategic
direction as much as finance and product development by leveraging current talent to identify new strategic directions.
Key research questions are:
• How can we identify the strategic opportunities that existing
internal talent provides for the organization?
• What are the talent characteristics and business conditions
that can be combined to create new strategic opportunities?
• What role can human resources take to exert influence on
future business strategies?
Talent Model for Individuals
There has been a lot of emphasis on developing and implementing talent programs and processes, but there needs to be
a greater understanding of the role of individual differences in
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program effectiveness. For example, what types of individuals
(based on personality, ability, and motivational differences) benefit most from specific development interventions and learning
opportunities? What are the person versus treatment versus situation interactions? Why do some individuals respond better in
certain situations and not in others? How can we better match
an individual to an effective learning experience? What are the
core components and limits of talent fungibility (the ability to
perform a variety of functions)? Can we outline a talent model
for individuals based on individual differences that identify key
matches to the work situations and talent programs? How can an
individual’s talent best be sustained or leveraged? What competencies or individual differences are foundational elements for
other more complex skills and abilities?
Key research questions are:
• Can we develop a model of individual talent based on what
we know about individual differences?
• How do individual differences influence the effectiveness of
talent programs and processes (for example, does age affect
learning ability in a development experience)?
• What are the core components of fungibility in an individual,
and can we develop and nurture those characteristics in people?
Talent Programs and Practices
Designing and implementing talent systems, programs, and practices in an organization raises questions about:
• How to choose programs
• How to link them to the underlying strategies
• How to design programs to reflect the situation and business
conditions
• How to implement and manage a program so it remains consistent with the original objectives
• How to integrate various talent programs and processes
First, we need research that identifies which programs and
practices are most effective for specific purposes and conditions.
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For example, when is starting a campus recruiting program or
an apprentice program a good talent choice? How is the choice
driven by the underlying business strategy? How simple or comprehensive does the talent approach need to be? When would
a straightforward recruiting program be sufficient over an
approach that includes recruiting, development, compensation,
and retention components? When is it better to invest in a selection strategy over a development strategy?
Programs and processes may need to reflect the organizational
culture, the business climate, and often the local geographic culture. How can they be designed to reflect these without losing
program effectiveness? Which program aspects can vary, and
which are essential to include? What is the necessary and sufficient level of design complexity to be effective?
Implementation issues are often ignored after the program
developers have moved on to another project. How can programs
and processes be implemented to best meet the original objectives?
What periodic talent program reviews or updating are needed to
make sure the program continues to meet those objectives over
time? How can the program be designed to minimize the administrative resources that are needed but still maximize the outcomes?
Talent management integration is often cited as something
that is important to achieve. What are the core characteristics of
integration across talent programs and processes? Can we measure the degree of integration? Can we demonstrate that greater
integration actually leads to more effective outcomes? How do we
go about integrating existing programs, and what efforts bring
the greatest payoff?
Often talent strategies discuss specific programs and outcomes
but often seem to skip over discussing the specific characteristics
of the talent involved. For example, a talent strategy might be to
buy talent from the outside at above-market compensation rates,
but how does this differentially apply to different talent groups?
Some groups or individuals are likely to be more responsive to
compensation inducements than others (for example, customer
service representatives versus medical researchers). What are the
key talent differences that make them more or less responsive to
different programs and processes? How does a program need
to adapt to the specific talent group?
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Key research questions are:
• How can we make the best choices on which talent programs
and processes to use to achieve specific business and talent
strategies?
• How can programs be adapted to reflect local norms, situational factors, and business conditions without losing
effectiveness?
• How can programs be managed over time to remain consistent with the original program objectives?
• How important is it to integrate talent programs and practices, and how can that be efficiently done?
• How much do individual or group talent differences affect
the effectiveness of a program?
Talent Pools and Differential Investment
Currently there is great interest in the use of talent pools, such as
high-potential talent, to identify and develop strategic talent. But
we have little research on the effectiveness of talent pools and
how they are identified and nurtured.
How do we know which talent groups in an organization are
critical to achieving strategic objectives? Can we demonstrate that
certain characteristics, such as hard-to-replace talent, actually
matter? Perhaps “rare and hard to imitate” talent (Barney, 2001) is
only a competitive advantage for a certain period of time before
a competitor leapfrogs over that advantage to reframe the competition and capture a different type of talent. How long is specialized talent sustainable as a competitive advantage?
High-potential talent pools (see Chapter 5 by Rob Silzer and
Allan H. Church) are so popular that in some organizations they
seem to be an unquestioned talent program with little underlying thought and few clear objectives. What are the key characteristics of someone who is high potential? Can these characteristics
be developed to increase a person’s likelihood that he is seen as
a high potential? How can we measure the outcomes and benefits of this program beyond just comparing promotional rates
(a confounded variable)? How early in an individual’s career can
you identify her as a high-potential individual?
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How can we evaluate the usefulness of differential investment in talent? We should define and be able to measure the talent return on investment for a specific investment in talent. How
should we make decisions on where to invest? What impact does
differential investment have on the talent who get the resources
and the other employees who don’t? What is the impact on organizational outcomes?
The composition of talent pools also needs further study.
Typically organizations annually look for the best high-potential
candidates for a specific talent pool but give little thought to
what mix of talent or what number of individuals is needed.
What combination of talent (potential level, performance mix,
career stage) should be identified to have a sustainable talent
pool over time?
What organizational resources should be included in the differential investment in talent? Are some investments (for example,
compensation level, development experiences, or career advancement) more effective with certain individuals or at different career
stages or in certain geographies? How much investment is sufficient? When does a particular investment provide diminishing
returns? What is the appropriate level of talent investment to maximize returns?
Key research questions are:
• How do we accurately identify the critical, strategic talent pools?
• What are the core characteristics of being high potential, and
how early can they be identified in individuals? Can these
characteristics be developed?
• Can we measure the talent return on investment of differential investments in talent pools? What level and what type of
investment is the most efficient and effective?
• What is the ideal mix of talent in a talent pool in order to
have sustainable talent?
Talent Decisions
In the past, decisions regarding talent typically have been based on
personal observations and experience. Often the most senior person in the room made the final call about an individual. However,
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we know that this type of decision making often has great potential
for errors (Dawes, 1988; Hastie & Dawes, 2001; Tichy & Bennis,
2007). How can we build a decision-making process regarding talent that is data based and effective? Do we need to construct a
talent decision-making science, as Boudreau and Ramstad (2007)
have suggested, or can we improve the talent decisions by introducing objective decision-making techniques (Dawes, 1988; Hastie
& Dawes, 2001) into the process? How can we improve the quality of each decision and also improve the overall decision-making
process in the organization? What are the most important decision-making characteristics to include (such as making decisions
based on objective data, getting others involved in the decisions,
or focusing on the avoidance of typical decision errors)?
Key research questions are:
• How can we improve the quality and effectiveness of talent
decisions?
• Can well-known decision-making techniques significantly
improve these decisions?
• How important is it to first improve the quality and rigor of
the talent data?
• How easily can managers and leaders learn and adopt these
techniques?
• What outcome measures can we use to provide feedback to decision makers on the quality and effectiveness of their decisions?
Talent Measures and Outcomes
Most organizations now stick to basic talent metrics, such as turnover and time to fill a position, if they measure talent outcomes
at all. These measures are very broad and may not be directly
relevant to the specific talent programs and processes. There is
emerging interest in developing more useful and precise talent
metrics (see Chapter 12 by John C. Scott, Steven G. Rogelberg,
and Brent W. Mattson). But what are the right outcome measures for talent management systems, programs, and practices?
How do we measure achievement of program objectives, talent
strategies, and business strategies?
Most current measures are either subjective or based on very
general information. Can we develop more rigorous, relevant,
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and objective measures that also parcel out the influence of
other related factors such as business and economic conditions?
What are those other influential factors? How can we accommodate the dynamic nature of many talent programs and processes
and still get a sound outcome measure?
The organizational level of the measure is also important. What
are the complexities and limitations of measuring talent management effectiveness against broad organizational performance?
What is the best organizational level to establish these metrics:
organization-wide, business unit, department, work group, or specific talent group? Are some organizational performance criterion
measures, such as profit margin, inappropriate to use because of
the complex set of variables that can have an impact on them?
How rigorous do the measures need to be? What measurement standards, such as reliability and validity, should we insist
on following in developing these measures? What type of data
and data analysis capabilities are needed to provide high-quality,
objective talent data? At what point does a focus on data analysis
interfere with sound judgment?
How important is it to have a solid underlying model of talent
management to guide the interpretation of the outcome results?
How can outcome measures be most useful in guiding future talent decisions?
Key research questions are:
• What are the most useful and precise talent measures?
• Can we develop outcome measures that are objective and rigorous but still useful?
• At what levels in the organization should we measure talent
outcomes and over what period of time?
• Should we rely on objective data-based outcome results or
should they be interpreted using an underlying model of
organizational talent as a guide?
Organizational Acceptance
Several chapters have noted the need for a cultural mindset for
talent (see Chapter 1 by Rob Silzer and Ben E. Dowell ) or a talent stewardship (see Chapter 2 by Marcia J. Avedon and Gillian
Scholes) in order to have a highly effective talent management
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system. Also mentioned is the importance of installing talent
management as a core business practice (see Chapters 1 and 2 as
well as Chapter 9 by Ben E. Dowell). These assume an organizationwide acceptance of talent management.
This raises some important issues. What are the organizational
readiness factors for gaining this broad acceptance? Are some
organizations more ready than others? How critical is CEO support for establishing talent management as both a cultural mindset and a core business practice? Is CEO support necessary and
sufficient? How do you introduce, communicate, and embed
these organizational values? How do you maintain them over
time? Do they require constant support and communication?
What are the early signs that organizational acceptance is declining? Once accepted, what actions does an organization need to
take to maintain acceptance? What is the impact of changing the
allocation of resources to talent management?
Key research questions are:
• What are the key characteristics of a cultural mindset in
practice?
• How can an organization introduce this concept, and are some
organizations more ready than others than others to accept it?
• What factors, such as CEO support, are needed to embed a
talent mindset in an organization?
• How can talent management get accepted as a core business
practice? Is CEO endorsement and active support enough?
• How do you measure the impact of having a talent mindset in
the organization?
Talent Management Talent
Over the years, HR professionals working in the area of talent
have moved from being specialists in specific talent areas, such as
staffing or training and development, to broader roles in management development and leadership development. More recently
they have broadened their roles even further by working in organizational development or as an HR consultant to a business unit.
Now some of them are being asked to step up to an even broader
role as a talent director (or maybe in the future to chief talent
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officer) for a business unit. This requires knowledge (and preferably experience) in the full range of talent programs and processes
but also an understanding of talent and business strategies and business in general. They will need to be partners with the senior
business executive much as a chief financial officer is today.
These broader roles require talent professionals to have both
a broader and a deeper background, which raises several questions that HR will need to address. How can an HR professional
gain this breadth and depth? What individual characteristics
(skills, abilities, motivations) are needed to operate effectively as
a chief talent officer? Will they need to gain line management
experience to fully understand the connection between business
strategy, talent management, and business performance?
Key research questions are:
• How can we fully describe this broader and deeper talent
management role?
• What skills, abilities, and motivations are needed to be effective in this critical role?
• How early in their careers can we identify individuals with
potential for these roles?
• Should organizations develop a program for high-potential
talent officers similar to ones found in finance, to build this
critical talent pool?
Conclusion
A large number of questions regarding the effectiveness of talent management still need to be addressed. The most important
priority may be to study how talent management efforts can be
more directly linked to business strategies and outcomes. It is
challenging to do nonsurvey-based research on talent management in organizations. But we need to find new ways to study
these complex issues.
Readers are encouraged to review Chapter 12 on managing and measuring the talent management function for a better understanding of talent management metrics. In addition,
relevant research issues have also been identified in most of the
other chapters.
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References
Barney, J. B. (2001). Is the resource–based “view” a useful perspective
for strategic management research? Yes. Academy of Management
Review, 26(1), 41–56.
Boudreau, J. W., & Ramstad, P. M. (2007). Beyond HR: The new science of
human capital. Boston: Harvard Business School.
Dawes, R. M. (1988). Rational choice in an uncertain world. Orlando, FL:
Harcourt.
Gubman, E. L. (1998). The talent solution: Aligning strategy and people to
achieve extraordinary results. New York: McGraw-Hill.
Hastie, R., & Dawes, R. M. (2001). Rational choice in an uncertain world:
The psychology of judgement and decision making. Thousand Oaks,
CA: Sage.
Lawler III, E. E. (2008). Talent: Making people your competitive advantage.
San Francisco: Jossey-Bass.
Lewis, R. E., & Heckman, R. J. (2006). Talent management: A critical
review. Human Resource Management Review, 16, 139–154.
Tichy, N. M., & Bennis, W. G. (2007). Judgment: How winning leaders
make great calls. New York: Penguin.
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Employee and Labor Relations
HRM 534
Labor and Employment Arbitration
Topics
• Development of labor arbitration
• Elements of a typical arbitration
proceeding
• Comparison of arbitration and judicial
proceedings
• The arbitrator’s decision
• Current issues affecting arbitration
Arbitration Types
• Grievance labor arbitration
• Employment arbitration
• Differences
– Union presence
– Arbitrator selection
– Decision-making framework
Development of Labor Arbitration
•
•
•
•
Early years
Executive Order 9017
National War Labor Board
Steelworker’s Trilogy
– Common Law of the Shop
Elements of a Typical Arbitration Proceeding
• Arbitrator sources
• Ad hoc versus permanent arbitrators
• Arbitrator profile
Elements of a Typical Arbitration Proceeding,
continued
•
•
•
•
Decision to arbitrate
Prehearing activities
The arbitration hearing
Post-hearing brief
Comparison of Arbitration and Judicial
Proceedings
• Differences
• Evidence
• Railway and airline industries
The Arbitrator’s Decision
• Classic approach
• Narrative storytelling approach
• Decision-making guidelines
– Witness credibility
– Ambiguous language
The Arbitrator’s Decision, continued
• Decision-making guidelines, continued
– Parole evidence rule
– Intent of the parties
– Past practice
– Previous arbitrator decisions
PROPERTIES
On passing, 'Finish' button:
On failing, 'Finish' button:
Allow user to leave quiz:
User may view slides after quiz:
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After user has completed quiz
At any time
Unlimited times
Current Issues Affecting Arbitration
• Legal Jurisdiction
• Equal Employment Opportunity
Commission
• National Labor Relations Board
• Misco Decision
Current Issues Affecting Arbitration,
continued
• Arbitration effectiveness
• Arbitrator capabilities and ethics
• Procedural problems
– Time delay
– Cost
Current Issues Affecting Arbitration,
continued
• Employment arbitration
• Arbitral dilemmas
• Arbitral deficiencies
Current Issues Affecting Arbitration,
continued
• Public policy implications
– Proceedings may favor employer
– Employees have burden of proof
– Extenuating circumstances may not be
considered
PROPERTIES
On passing, 'Finish' button:
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Unlimited times
Summary
• Development of labor arbitration
• Elements of a typical arbitration
proceeding
• Comparison of arbitration and judicial
proceedings
• The arbitrator’s decision
• Current issues affecting arbitration
Slide #
HRM 534_W9_P2: Employee and Labor Relations:
Labor and Employment Arbitration
Slide Title
Slide Narration
Slide 1
Introduction
Welcome to Employee and Labor Relations.
In this lesson we will discuss labor and employment
arbitration.
Slide 2
Topics
Next slide.
The following topics will be covered in this lesson:
Development of labor arbitration,
Elements of a typical arbitration proceeding,
Comparison of arbitration and judicial proceedings,
The arbitrator's decision, and
Current issues affecting arbitration.
Slide 3
Arbitration
Types
Next slide.
We will cover two different types of arbitration in this lesson.
Grievance labor arbitration involves the dispute-resolution
procedures from the last step in the grievance process.
Employment arbitration is initiated by the employer to
resolve statutory claims over issues including employment
discrimination and the application of company personnel
policies. There are several important differences between these
types of arbitration.
Grievance labor arbitration only occurs in the presence of a
labor union and in accordance with the grievance process
outlined in the collective bargaining agreement. Employment
arbitration is dictated by an employer to resolve disputes in a
nonunion environment, or in a union environment over issues
not covered by the labor agreement.
Grievance labor arbitrators are usually very experienced in
resolving disputes between management and unions.
Employment arbitrators may be selected expressly because they
have little experience in labor issues.
Grievance labor arbitration decisions are governed by the
framework created by the collective bargaining agreement.
Employment arbitration is governed by applicable laws and
company policies.
Next slide.
Slide 4
Development of
Labor
Arbitration
Labor arbitration has existed in the United States since the
Civil War, but was rarely used until World War Two. The
arbitrator's decision was not binding on either management or
the union, and either party was free to ignore the decision if
they did not agree with it.
Most collective bargaining agreements in the second half of the
nineteenth century and the earlier part of the twentieth century
were vaguely worded and gave arbitrators very little guidance.
As a result, arbitrators tried to help unions and management
reached a consensus decision that both would agree to.
President Franklin Roosevelt issued Executive Order Nine
Zero One Seven to hasten the resolution of labor disputes
that might impact the war effort during World War Two.
This Executive Order prohibited union strikes or management
lockouts and created the National War Labor Board. The
National War Labor Board consisted of twelve presidential
appointees including four union representatives, four
management representatives, and four representatives of the
public. The National War Labor Board encouraged collective
bargaining between management and unions, and helped
resolve labor disputes over the terms of those agreements.
Although the Board got involved in labor disputes when
necessary, it encouraged management and unions to resolve
their differences together even if this required mediation or
arbitration. Arbitration was not legally binding on either party.
The United States Supreme Court strengthened the role of a
labor arbitrator with three decisions handed down in 1960.
These decisions become known as the Steelworkers' Trilogy.
One important point gave the arbitrator authority to determine
the merits of a grievance and not the judicial system. The
trilogy recognized that labor arbitrators have more expertise
than most judges in interpreting the common law of the shop.
The common law of the shop refers to the experiences and
practices within a particular facility. Arbitrators have wide
latitude in resolving labor disputes, and they have no obligation
to explain their reasoning to the courts. Arbitrators were
endorsed by the courts as the most qualified individuals to
resolve grievances, as long as the arbitrator's decision is based
on the language in the collective bargaining agreement.
The Supreme Court still retains the authority to determine if the
grievance should go to arbitration if one party claims that the
collective bargaining agreement does not require arbitration on
a particular subject. The court also ruled that responsibilities
and obligations of the employer and the employees are not
nullified by the expiration or termination of a labor agreement if
the cause of the dispute arose while the labor agreement was in
force.
Slide 5
Elements of a
Typical
Arbitration
Proceeding
Next slide.
When arbitration is necessary to resolve a labor dispute,
arbitrators are typically chosen from one of three sources.
The Federal Mediation and Conciliation Service maintains a
list of qualified arbitrators along with some biographical
information about each individual. The Service notifies the
arbitrator if he or she has been selected, and follows up to
ensure that decisions are reached in a timely manner.
The American Arbitration Association is a private nonprofit
organization that provides lists of arbitrators in each region and
supports the arbitration process with some administrative
services.
Arbitrators may also be chosen from lists maintained by one of
the twenty-six state and local arbitration agencies. The largest
of these agencies is the New York Employment Relations
Board. The services offered by these agencies may vary
widely.
The Supreme Court believes that the best way to handle the
arbitration process is through a method mutually agreed upon
between the union and management.
Ad hoc arbitrators are chosen on a case-by-case basis as the
need arises, and are used in about seventy-four percent of all
arbitration cases. Approximately five percent of collective
bargaining agreements identify a permanent arbitrator to
resolve all labor disputes while the collective bargaining
contract is in force. Some labor agreements specify a fixed list
of arbitrators, and the arbitrator for a particular dispute is
selected from this list on a rotating basis. Permanent arbitrators
are often able to resolve disputes more quickly, in part because
they are usually more familiar with the intricacies of a particular
situation. Ad hoc arbitrators are often more flexible when
flexibility is important, and may be more knowledgeable on
certain issues, even if they are less familiar with the parties
involved.
Arbitrators tend to be men older than fifty. They usually have a
law degree or other graduate degree, and average more than
fourteen years of arbitration experience. The background
characteristics of a particular arbitrator might influence his or
her decision on a case, and the backgrounds of potential
arbitrators are usually of great importance to both sides when
selecting an arbitrator. Research has indicated that most
arbitrators base their decisions on the facts they have uncovered
as part of the proceedings, and that they are not heavily
influenced by their background characteristics.
Slide 6
Elements of a
Typical
Arbitration
Proceeding,
continued
Next slide.
The union and management must weigh several factors when
making the decision to arbitrate a particular dispute. These
factors include the costs of arbitration in terms of both dollars
and time, the likelihood of winning, the credibility of witnesses,
and the strengths or weaknesses of their individual positions.
The conflicting parties occasionally create a written brief for the
arbitrator before the hearing. These written briefs provide
background information on the conflict and give the arbitrator a
good idea about the information that will be presented during
the hearing. Prehearing stipulations are joint statements made
by all conflicting parties agreeing to specified facts. Since both
parties agree that these facts are correct, there is little need to
spend much time on them during the arbitration hearing. The
process of developing these prehearing stipulations occasionally
helps the two sides to come to an agreement without going
through with the arbitration hearing.
The arbitration hearing itself is where representatives from
union and management, or their legal representatives, present
their sides to the arbitrator. The degree of legal formality at an
arbitration hearing depends on the individual arbitrator and the
nature of the representatives from each side. Hearings usually
begin by introducing joint exhibits such as the collective
bargaining agreement, any prehearing stipulations, and the
written grievances and responses that have been prepared.
As with formal legal proceedings, arbitration hearings typically
contain opening statements, examination and cross-examination
of witnesses, the introduction of evidence, and closing
arguments. In some situations, both parties agree that a written
transcript of the hearing should be prepared.
A post-hearing brief is a written summation of the facts of the
case, the applicable language in the collective bargaining
agreement, arguments and counterarguments by each side, and
the decision each side requests from the arbitrator. The use of
post-hearing briefs has been increasing in recent years. The
time it takes to prepare these briefs has extended the time
necessary for the arbitrator to reach a decision.
Slide 7
Comparison of
Arbitration and
Judicial
Proceedings
Next slide.
There are several important ways that arbitration hearings are
different from formal judicial proceedings. Witness
testimony is not always taken under oath and transcripts are not
always prepared. Arbitrators may subpoena witnesses, just as
judges can, but arbitrators have less power to enforce a
subpoena if the individual chooses not to attend the hearing.
However, the absence of a subpoenaed witness may influence
the arbitrator to rule in favor of the side that would have
benefited by the testimony if it were provided.
Courtroom judges are obligated to follow established legal
principles. Arbitrators tend to rely on the common law of the
shop when resolving disputes. Conflicting parties generally
choose their arbitrator, while judges are assigned randomly by
the court system. The decisions of an arbitrator are usually
final, while most judicial decisions may be subject to appeal.
Formal judicial proceedings usually have strict rules of
evidence that apply to ensure the evidence is accurate and
credible. Arbitrators are usually much more liberal regarding
the types of evidence they will permit at a hearing. If the
parties make settlement offers before the arbitration hearing,
these settlement offers are not normally considered as evidence.
The Railway Labor Act lays the groundwork for grievance
arbitration in the railway and airline industries. This Act
classifies disputes as either major or minor. Minor disputes
involve differences in interpretation or application of the
collective bargaining agreement. Major disputes involve
conflicts that arise while a collective bargaining agreement is
being negotiated. Only major disputes are legally permitted to
serve as the basis for a labor strike.
Slide 8
The Arbitrator's
Decision
Next slide.
Arbitrators usually make their decisions within one or two
months after the hearing is completed. These decisions are
presented in writing to the conflicting parties.
Some arbitrators write their decisions following the classic
approach. The classic approach involves stating who the
conflicting parties are, listing the issues, and stating the facts
and pertinent provisions of the labor agreement. The arbitrator
will summarize the positions of both sides, analyze the
evidence, and explain the final decision.
Other arbitrators used the narrative storytelling approach.
This approach involves explaining all relevant events in
chronological order. The conclusion to the narrative is the
arbitrator's decision.
Whichever approach is used, the final decision should
demonstrate that the arbitrator fully understood all of the
matters brought up in the hearing. This decision should also
explain why the arbitrator arrived at the decision being
described. Arbitrators usually try to draft their decisions to
convince to both parties that all arguments were heard, that the
decision-making process was fair and objective, and that the
final decision makes sense.
Most private-sector arbitration issues are final and binding, so
the arbitrator's decision is very important to both parties. The
decision is important both for the resolution of the particular
case at hand as well as for the precedent that may be set,
including the contribution to the common law of the shop.
Arbitrators typically apply several guidelines when reaching
their decisions. In most cases, the charging party has the
burden of proof and must convince the arbitrator that their
arguments are the correct ones.
Assessing the credibility of witnesses is both difficult and
important. The body language and behavior of a particular
witness during the hearing can greatly influence the perceived
credibility of that witness. Credibility can also be enhanced or
destroyed if the testimony is inconsistent or appears to be selfserving.
When the language in the collective bargaining agreement is
clear arbitrators generally follow the language as it is written.
When the contract language is not clear or ambiguous, the
arbitrator has more latitude in reaching a decision and usually
tries to determine the intent of the original contract negotiators.
Arbitrators usually try to resolve ambiguity by considering the
context of the entire labor agreement.
Slide 9
The Arbitrator's
Decision,
continued
Next slide.
The parole evidence rule often influences which evidence
arbitrators will permit in the hearing. This rule states that
evidence should not try to change or contradict the written
language within the labor agreement.
Arbitrators often follow the guideline of the intent of the
parties. This guideline leads arbitrators to evaluate what union
and management labor negotiators had in mind when they
negotiated the original labor agreement or engaged in actions
that resulted in a grievance being filed. This intent can be
proven in a number of ways. Intent can be proven through
written proposals made during contract negotiations or other
written notes that try to show the reasoning behind managerial
decisions.
Arbitrators, like judges, often prefer to make decisions that
follow precedents that were set in the past. Arbitrators may
apply precedents through the principle of past practice. The
principle of past practice requires identifying identical situations
that have occurred in the past in which a particular resolution
was accepted by both parties. Managers are usually more
concerned than union officials about these precedents because it
is management that is typically involved in administering the
labor agreement on a regular basis. Arbitrators will typically
consider the results of previous arbitration hearings if those
hearings covered similar situations.
Next slide.
Slide 10
Check Your
Understanding
Slide 11
Current Issues
Affecting
Arbitration
There are a variety of legal or procedural issues that affect
modern labor relations arbitration. The first issue is legal
jurisdiction. Legal jurisdiction is the right of a particular
entity to rule on a case involving a labor dispute. Although
several Supreme Court decisions have strengthened the role of
arbitrators in resolving labor disputes, there are some situations
which may be more appropriately resolved by other entities.
For example, a grievance alleging wrongful discharge may be
properly heard by the National Labor Relations Board. A
grievance involving illegal discrimination may be under the
purview of the Equal Employment Opportunity
Commission. Determining exactly who should rule on the
grievance can become complicated. It may be appropriate for a
grievant to pursue a remedy via more than one of these
processes simultaneously.
The National Labor Relations Act gives the National Labor
Relations Board authority to rule on any issue involving unfair
labor practices. The fact that a collective bargaining agreement
exists which addresses this specific issue does not prevent the
National Labor Relations Board from getting involved in the
case.
The Misco decision was a Supreme Court ruling that restated
the principle that clauses in collective bargaining agreements
cannot be enforced in a court if they violate the law or other
public policy. This decision also supported the wide decisionmaking authority given to arbitrators in the Steelworkers'
Trilogy. Similarly, employers do not have to abide by arbitrator
decisions that require them to violate the law. For example, an
airline would not have to reinstate a terminated pilot if the
airline discovered that the pilot's credentials were falsified.
Slide 12
Current Issues
Affecting
Arbitration,
continued
Next slide.
The judicial system believes that arbitration has been generally
effective because it has reduced the backlog of court cases, and
because it perceives that arbitrators make fair decisions more
quickly than a court and for a much lower cost to both parties.
However, it is difficult to objectively measure the effectiveness
of arbitration because the outcome of the case had it went to
court would never be certain. The fact that management and
labor unions continue to agree to resolve disputes through
arbitration can be considered substantial evidence that
arbitration is effective and fair overall.
Some observers have criticized the abilities or ethics of an
arbitrator who continually seeks compromise solutions, instead
of ruling for one party and against the other party. There is a
perception that some arbitrators' decisions may be influenced by
past support received from one of the parties. Some people also
have a perception that favors done for the arbitrator in the past
should influence the arbitrator to rule in their favor on future
decisions.
The National Academy of Arbitrators, the Federal Mediation
and Conciliation Service, the American Arbitration Association
and the National Mediation Board have jointly developed a
code of professional responsibilities for arbitrators. One
important clause in this code states that arbitrators should
voluntarily withdraw from a case if they don't believe they have
the technical competence to rule on a case involving the issue in
dispute. Another clause states that arbitrators should maintain
the privacy of both parties unless both parties agree to release
the information publicly. Arbitrators should also reveal any
possible conflicts of interest when they are first appointed to
hear the case.
There is also some concern that arbitration decisions are binding
and are not routinely subject to a possible appeal, as would be
the case in a judicial decision.
There are two primary procedural problems that may develop
during the arbitration process. One issue is the amount of time
it takes between the time a grievance is filed and when the
arbitrator makes a decision, which averages about three hundred
fifteen days. The other issue is the cost of the arbitration
proceedings.
The time delay associated with arbitration hearings can become
a significant problem if the dispute involves the termination of
an employee. The individual's future is uncertain until the case
is resolved. The employer usually needs the position filled as
soon as possible and may be liable for back pay to the
discharged employee.
There are several reasons for the extensive delay in concluding
arbitration proceedings. A shortage of acceptable arbitrators
combined with hesitancy to use an unknown arbitrator is one
cause for the delay. The grievance process itself may take
weeks or even months before it even gets to arbitration. Good
arbitrators typically hear a large number of cases and there may
be difficulty in choosing hearing dates convenient for all
parties.
Arbitration costs include the time spent in the hearing itself,
travel time, time spent reviewing the case before and after the
hearing, and other associated expenses. If either party hires an
attorney to help it prepare its case, expenses will rise further.
Having the arbitrator review records or hear witnesses that are
not directly relevant to the proceedings also adds to the time and
expense.
Next slide.
Slide 13
Current Issues
Affecting
Arbitration,
continued
Employment arbitration occurs when employers require
employees to settle disputes using arbitration rather than
pursuing a remedy in the court system. Employment arbitration
may occur whether or not a labor union exists in that firm. One
advantage of this policy is that it reduces the time and expense
of resolving disputes. One disadvantage is that the arbitrators
may not be completely impartial since they are hired by
management. The Supreme Court has ruled that employment
arbitration is legal and proper if it was agreed on in advance by
management and the employees.
One dilemma associated with mandatory employment
arbitration is that it may be inconsistent with some federal laws,
such as civil rights laws. Another dilemma may arise when the
language in a labor contract overlaps with a law or statute. In
the case of overlap, arbitrators should reach decisions that
follow the appropriate law or statute. Arbitrators should decide
cases based on the language and intent in the collective
bargaining agreement if the dispute does not involve a specific
law or statute.
In addition to resolving disputes less expensively and more
quickly than a judicial proceeding, arbitration proceedings are
often more predictable than the decisions that a jury may return.
Arbitration proceedings are usually held privately, and the
privacy aspect is usually of great interest to employers.
Research has indicated that the employment arbitration process
may actually be more fair overall to employees. Most employee
complaints rarely get to the courtroom, and almost half of the
courtroom decisions favorable to employees are overturned on
appeal.
One challenge employees face in employment arbitration cases
involving discipline or discharge is that the burden of proof falls
on the employee to prove that the employer acted
inappropriately. This burden of proof falls on the employer in
traditional labor union-management arbitration.
The legal system has identified some deficiencies with the
arbitration process. Arbitrators may not possess the legal
expertise necessary to understand complex cases. Arbitration
hearings are not normally formal enough to ensure that both
parties receive their full right to due process with respect to
discovery of evidence, the examination of witnesses, and
maintaining an official hearing record. Some arbitrators are not
very effective at communicating the reasons behind the
decisions they make.
Slide 14
Current Issues
Affecting
Arbitration,
continued
Next slide.
Research into the decisions released by employment arbitrators
has raised several public policy issues. One issue is that the
employment arbitration proceedings generally favor the
employer and not the employee. Employment arbitrators
typically have a background in management and they are
usually hired by management. Employees inexperienced in the
arbitration process have the burden of proof, which is often
difficult even if they hire a lawyer to represent them.
Employment arbitrators are less likely than a jury to consider
extenuating or mitigating circumstances such as a long history
with the employer and a good work record.
Employers have the burden of proof in a typical labor
arbitration process. This follows the general legal principle that
an employee is innocent unless the employer can prove the
employee is guilty. Labor arbitrators are chosen and paid for by
both sides so they are less likely to be biased in favor of the
employer. Labor arbitrators are more likely than employment
arbitrators to look for middle ground and reach a compromise
decision.
Should disputes reach a jury trial, juries are usually more likely
to consider mitigating and extenuating circumstances than
arbitrators, and therefore tend to reach decisions more favorable
to the employee than employment arbitrators.
Next slide.
Slide 15
Check Your
Understanding
Slide 16
Summary
We have reached the end of this lesson. Let’s take a look at
what we’ve covered.
We started our discussion by defining grievance labor
arbitration and employment arbitration, and explaining the
differences between them. Next, we discussed the
development of labor arbitration over the last one hundred
fifty years, and reviewed some of the legal basis for the
arbitration process.
Our focus then moved to the elements of a typical arbitration
proceeding. This included identifying how arbitrators are
chosen, the differences between ad hoc and permanent
arbitrators, and the profile of the typical arbitrator. We
reviewed how management and unions decide to arbitrate, the
activities that occur on both sides before the arbitration hearing,
and major aspects of the arbitration hearing itself.
Next, we discussed the differences between arbitration and a
judicial proceeding. These included procedural differences
and significant differences in the rules of evidence. We briefly
mentioned how arbitration is handled differently in the railroad
and airline industries.
We moved on to a discussion about the arbitrator's decision.
We reviewed the classic approach and the narrative storytelling
approach to writing a decision, and the guidelines arbitrators
follow when reaching their decisions.
Our last focus was on several current issues affecting
arbitration. These issues included the determination of legal
jurisdiction and the roles of federal agencies such as the Equal
Employment Opportunity Commission and the National Labor
Relations Board. We also mentioned how Supreme Court
decisions have strengthened the role of the arbitrator. Next, we
discussed some of the questions that have arisen about the
effectiveness of arbitration, some of the criticisms of arbitrator
capabilities and ethics, and several procedural problems that are
related to the arbitration process.
Next, we discussed how employment arbitration differs from
grievance labor arbitration, dilemmas faced by arbitrators, and
some deficiencies in the arbitration process. We ended the
lesson by discussing some public policy implications of
arbitration.
This completes this lesson.
Employee and Labor Relations
HRM 534
Contract Administration
Topics
• Grievances: definition, sources, and
significance
• Steps in the grievance procedure
• Grievance resolution: relationships and
flexibility
• Power relationships
• The union’s duty of fair representation
Grievances: Definition, Sources, and Significance
• Definition
• Written grievances - advantages
• Grievance approaches
– Therapeutic
– Legalistic
Grievances: Definition, Sources,
and Significance, Continued
• Grievance filer profile
• Settling point influence
• First-line supervisors
Reasons to File a Grievance
•
•
•
•
•
•
Protest contractual violation
Draw attention to problems
Feeling of importance
Getting something for nothing
Grievance significance
Grievance processing preparation
Steps in the Grievance Procedure
• Step 1: Discuss with supervisor
– File written grievance
– Goal: resolve as early as possible
• Step 2:
– Union grievance committee
– Management labor relations representative
• Step 3:
– Involve more senior officials
Steps in the Grievance Procedure, continued
• Step 4: Alternative dispute resolution
– Grievance mediation
– Mediation approaches
• Transformation (collaborative) mediation
• Evaluative mediation
Steps in the Grievance Procedure, continued
•
•
•
•
•
•
Open door policies
Nonunion mediation
Ombudsperson
Peer review systems
Employment arbitration
Early neutral evaluation
PROPERTIES
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Grievance Resolution: Relationships and Flexibility
• Codified relationships
– Importance
– Challenges
• Supervisory authority
Power Relationships
• Exist when different people or entities in a
relationship have different degrees of power
• Conflict in power relationships
• Empathetic relationships
• Flexible considerations
The Union’s Duty of Fair Representation
• Legal duty
• Fair representation challenges
• Supreme Court rulings
PROPERTIES
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Summary
• Grievances: definition, sources, and
significance
• Steps in the grievance procedure
• Grievance resolution: relationships and
flexibility
• Power relationships
• The union’s duty of fair representation
HRM 534_W9_P1: Employee and Labor Relations:
Contract Administration
Slide #
Slide Title
Slide Narration
Slide 1
Introduction
Welcome to Employee and Labor Relations.
In this lesson we will discuss contract administration.
Slide 2
Topics
Next slide.
The following topics will be covered in this lesson:
The definition, sources and significance of grievances,
Steps in the grievance procedure,
Resolving grievances through relationships and flexibility,
Power relationships, and
The union's duty of fair representation.
Slide 3
Grievances:
Definition,
Sources and
Significance
Next slide.
Labor negotiations may get all of the media attention and public
interest, but actually administering the contract once it has
been signed takes much more time and effort on the part of both
management and the union leadership. Administering the
contract requires applying and interpreting all of the clauses in
the labor agreement. Once leaders on both sides are into the
nitty-gritty of applying and interpreting the contract, they often
discover that it was not quite as clear as it appeared to be when
it was originally signed.
When managers and employees have different understandings
about some of the labor contract’s provisions, one party may file
a grievance against the other. A grievance is an employee's or
employer's alleged violation of the labor agreement that is
submitted to the grievance procedure for resolution by
representatives of the union and the employer. Handling
grievances usually takes up the majority of the time and effort
involved in administering a labor agreement.
Grievances should be expressed in writing if they cannot be
resolved at a very low level in the organization. There are
several advantages of expressing grievances in writing. One
advantage is that it helps to maintain a written record of the
problems that arise and their solutions. These precedents can
help guide future actions in similar situations. A second
advantage is that a written grievance can help reduce the
emotion felt by the party initiating the grievance. Face-to-face
confrontations can become very heated and emotional, and
some individuals may find it difficult to remain calm and
rational. A third advantage is that a written grievance can help
ensure that the grievance procedure focuses on the original
issue without expanding into drawn-out philosophical
discussions. A fourth advantage from the management
perspective is that some employees may be apprehensive
about signing a written grievance. This apprehension may be
due to a fear of retaliation when it comes time for performance
reviews and promotion decisions. A fifth advantage is that the
requirement to submit grievances in writing probably reduces
the total number of grievances that get filed.
There are two basic approaches to defining a grievance. The
therapeutic approach depends on the employee's allegation
that he or she actually has a grievance. This can be thought of
as venting a complaint, and it may or may not involve actually
initiating the grievance procedure. The legalistic approach is
followed when an employee insists that the labor agreement has
been violated in some way.
Slide 4
Grievances:
Definition,
Sources and
Significance,
continued
Next slide.
Researchers have studied the characteristics of employees who
file grievances. Grievance filers tend to be younger and more
active in the union than the average employee. They tend to be
less satisfied with their jobs and their supervisors, and
surprisingly less satisfied with their unions. In the years leading
up to the filing of a grievance, grievance filers tend to have
higher performance evaluations, better attendance records, and
higher promotion rates than non-filing coworkers.
However, after these individuals have filed a grievance, their
performance evaluations and promotion rates tend to drop
significantly. Not surprisingly, their turnover rates tend to
increase. There is not yet enough data to generalize
conclusions, but there does appear to be some form of
retaliatory behavior occurring against those who file grievances
which encourage these individuals to leave their employers.
This is a disadvantage for the employers because they appear to
be losing some of their better performing employees.
The point at which grievances are settled also matters.
Employees whose grievances are settled in the first step of the
grievance procedure tend to have higher performance
evaluations and promotion rates compared to employees whose
grievances were resolved later in the process.
Research also indicates that supervisors who have had
grievances filed by their subordinates tend to have lower
performance ratings and lower promotion rates than other
supervisors in the same organization who have not had any
grievances filed against them. Not surprisingly, supervisors
who have had more grievances filed tend to be poorly
performing supervisors, and they tend not to last very long in
the organization.
Slide 5
Reasons to File
a Grievance
Next slide.
There are a number of common reasons why employees might
file a grievance. The first reason is to protest a contractual
violation. Labor negotiators are primarily concerned with
coming to agreement on major issues, and are not normally as
worried about the specific wording of every clause. This would
be true especially in cases where there have been few serious
disagreements between the management and the union. The
result is that contract clauses may leave too much room for
ambiguity or interpretation. When supervisors and employees
have different interpretations of contract clauses, conflict will
develop that may result in grievances being filed.
Grievances may be filed to draw attention to a problem
within the work environment. The problem may be related to
safety concerns, obsolete equipment, or some other aspect of the
work environment that employees are unhappy with. Unions
may encourage a number of members to file grievances over the
same issue to set the stage for a negotiating point in a future
round of contract negotiations.
Grievances may be filed to make the employee and the union
feel important. Employees who are union officials may file
grievances to demonstrate their union support in the hope it will
help them to earn higher leadership positions in the union.
Some employees may file a grievance in an effort to get
something for nothing. It may take little effort to file a
grievance, and the employee may benefit if the grievance
happens to be upheld. For example, an employee who wants
overtime pay without working the extra shift may hide from the
boss who is looking to offer that employee the overtime work.
When the overtime must be given to another employee, the
original employee may file a grievance claiming that an
administrative error was made and that the original employee is
required to be paid the overtime in accordance with the
collective bargaining agreement.
Employee dissatisfaction can have major effects in the
workplace whether or not a union represents the employees. If
the firm is not currently unionized, dissatisfaction may lead to a
successful union organizing campaign.
No collective bargaining contract could possibly hope to
address every possible situation that might develop in the
workplace. Conflict may develop if employees perceive that
managers are acting unfairly on issues that are not specifically
addressed by the labor contract. Union leaders will often
support their members in grievances related to these issues as a
show of support for the member more than because they believe
the managers acted improperly.
When a grievance is filed, representatives for management and
the union should thoroughly prepare for the grievance
process. The first preparation step should include gathering
evidence relating to the situation. Evidence may include
statements from witnesses, appropriate administrative records,
and photographs of certain areas of the workplace. The
evidence should be reviewed to determine which facts are
actually supported by the evidence. Part of this review should
include determining the reliability, credibility and accuracy of
each piece of evidence. Once the facts have been verified,
grievance hearing participants should prepare their own
arguments and try to create challenges for the anticipated
arguments of the other side.
Slide 6
Steps in the
Grievance
Procedure
Next slide.
The grievance procedure that will be in effect is almost always
specified in detail in a collective bargaining agreement. There
may be a wide variety in the actual procedural steps from one
organization to the next.
The first step in the grievance process is for the employee to
discuss the issue with the first-line supervisor. The union
steward may or may not be present for this initial discussion. If
the issue is not resolved, a written grievance will be filed either
by the employee or by the union steward acting on the
employee's behalf. The supervisor will then respond to the
grievance in writing.
The purpose of the initial discussion between the grievant and
the supervisor is to resolve the situation informally and as
quickly as possible, which is usually better for both sides than
a protracted grievance process.
If the grievance was not resolved in the first step, the second
step is usually to hold a hearing with the union grievance
committee, management's labor relations representative,
and the individuals involved in step one. They will attempt to
resolve the grievance by considering the precedents that have
been set throughout the facility. The union grievance committee
and the labor relations representative may be able to come to a
compromise agreement that will be satisfactory to everyone
concerned.
If the grievance has not been resolved in the second step, the
third step will bring in appropriate senior officials from
both the management and the union. If the union is part of a
national or international labor union organization, the national
or international organization may send a representative.
Resolving grievances at this level often affects operations
throughout the facility, and it will be important to collect as
much information and input as possible before making a
decision. Ideally, the senior officials that have been brought
into the grievance process at this level should not be personally
involved with the original grievance and may be able to assess
the situation more objectively.
Slide 7
Steps in the
Grievance
Procedure,
continued
Next slide.
If the grievance is not resolved in step three, the fourth step may
require the grievance to go to either mediation or arbitration,
depending on what has been negotiated in the collective
bargaining agreement.
Mediation is usually used before arbitration. Grievance
mediation is a formal step in the grievance procedure designed
to resolve grievances without the use of arbitration. The
mediator is able to view all sides of the grievance objectively
and encourage the conflicting parties to come to a compromise
solution to resolve the impasse. Having these solutions
suggested by a mediator may allow conflicting parties to save
face since they did not have to accept a proposal made by the
other party. Mediation is usually much faster and less
expensive than arbitration, which is why it is the preferred
alternate dispute resolution method.
Mediators may choose one of several approaches.
Transformation mediation, or collaborative mediation,
occurs when the mediator tries to get the parties to fully
understand their own position as well as the position of the
other party. By helping the conflicting parties understand the
perspective of the other parties, it is often easier for both parties
to accept a compromise solution.
Mediators who use the evaluative mediation approach
concentrate on showing the respective strengths and weaknesses
of each party's position, rather than trying to help craft a
particular solution.
Mediators who use the directive mediation approach or
results-oriented mediation approach try to develop
compromise solutions that the mediator feels both parties will
accept and then try to get the conflicting parties to accept them.
If mediation is not successful, the dispute will then usually
proceed to arbitration. The arbitrator will consider both sides
and then dictate a solution to the grievance.
Slide 8
Steps in the
Grievance
Procedure,
continued
Next slide.
There are other forms of alternative dispute resolution which are
more likely to exist in non-union organizations. An open door
policy allows workers to discuss any complaints with their
immediate supervisors. If the worker is not satisfied with the
response of the immediate supervisor, the worker may appeal to
a more senior manager. One disadvantage of an open door
policy is that employees may be reluctant to take advantage of
the policy due to a fear of retaliation.
Some nonunion organizations have a process in place to
mediate disputes even though there is no collective bargaining
agreement to require mediation.
Some organizations create an ombudsperson program. One
employee is appointed to serve as the ombudsperson. The
ombudsperson consults with employees who have grievances
and advocates on their behalf to management. The
ombudsperson must depend on management to solve the
problem, so the effectiveness of this program can vary widely.
A peer review system involves appointing a committee
containing both workers and managers. The workers usually
outnumber the managers on these committees. Employee
complaints are heard by this committee, and the committee
makes a final and binding decision.
Some employers mandate an employment arbitration program
to send disputes to an independent arbitrator. Since these
arbitrators are paid for by the employer, there is some question
about how independent and objective they actually are.
An early neutral evaluation is a process in which a neutral
third party is chosen jointly by the employee and the employer.
This individual conducts an informal hearing at which the
parties present their evidence and arguments. The neutral
evaluator tries to help both sides see the strengths and
weaknesses of their arguments, and offers a nonbinding opinion
on what the resolution should be. One disadvantage to this
procedure is that both parties may choose not to reveal their real
positions in order to protect themselves in case the dispute ends
up in court.
Next slide.
Slide 9
Check Your
Understanding
Slide 10
Grievance
Resolution:
Relationships
and Flexibility
Codified relationships stress the rights and privileges of union
stewards and first-line supervisors that are established through
the collective bargaining agreement and various union and
management publications. First-line supervisors and union
stewards are urged to treat each other as equals during the
grievance resolution process. The supervisor and the steward,
and indeed the entire organization, benefit when grievances can
be resolved between supervisors and stewards.
All union officials should be careful to follow the grievance
resolution process established in the collective bargaining
agreement. Even if lower-level managers and supervisors do
not have authority to resolve the grievance, they should still be
included in the process.
Some first-line supervisors find it difficult to treat union
stewards as organizational equals during the grievance process.
It can be challenging to treat the steward as an equal some of
the time when the steward is a direct report of the supervisor the
majority of the time.
First-line supervisors should have the authority to resolve
many grievances at the first step of the grievance process.
Rapid resolution is usually in everybody's interest, and
resolution at this low level can avoid setting plant-wide
precedents that might be unfavorable to management.
Slide 11
Power
Relationships
Next slide.
A power relationship exists when different people or entities
in a relationship have different degrees of power. Conflict
can develop in a power relationship when supervisors and union
shop stewards have different goals or interests. These conflicts
may develop despite good intentions on both sides. For
example, supervisors might want to talk frequently to
employees to identify and solve problems as quickly as
possible. On the other hand, union stewards usually want to
discuss problems with employees before they are brought up to
the supervisor.
Union stewards tend to be long-serving, experienced
employees, while many first-line supervisors have little
supervisory experience and even less experience dealing with
labor unions and collective bargaining agreements. This may
allow the union steward to intimidate supervisor intentionally or
unintentionally. An experienced supervisor could also try to
intimidate the steward by assigning the steward undesirable
work assignments and limiting the time that the steward has to
perform union-related duties.
Empathetic relationships develop between individuals when
each person is aware of, understands, and respects the
other's situation. Companies almost always function more
effectively when the union and management are able to work
together cooperatively and professionally. Individuals who
understand this reality are often able to develop empathetic
relationships with their counterparts on the other side of the
bargaining table.
In theory, each grievance should be considered individually on
its own merits. In practice, the union and management must
consider their stances on each grievance with respect to the
overall labor contract and the overall relationship with the other
party. Many grievances involve different interpretations of
labor agreement clauses that are often ambiguous in the first
place. It is often in the best interests of both sides to
compromise in order to maintain overall harmony, even if the
grievant is not happy with the resolution.
It may be easier to resolve disputes through mediation or
arbitration, but this may set precedents that one side or the
other, or perhaps both sides, may not wish to be set. Arbitration
is often costly in terms of both dollars and hours, and usually
both unions and management would prefer to avoid it whenever
possible.
The desire to avoid arbitration is so strong that management and
union leaders often create a third and one half step in the
grievance procedure. This step is not usually included in the
labor agreement. After the third step in the grievance process,
but before the fourth step of mediation or arbitration, union
leaders and management may get together to discuss a
number of cases scheduled to be mediated or arbitrated. In
these sessions, management and union representatives are
sometimes more willing to wheel and deal and compromise
on a number of issues than they would be on any of the issues
individually. The union typically gets a more favorable
compromise on some of the issues, and management gets a
more favorable compromise on other issues. Both sides
typically agree that grievances resolved in this manner will not
be used to set precedents for future grievances. Some critics of
this step believe that it interferes with the union's obligation of
fair representation.
Slide 12
The Union's
Duty of Fair
Representation
Next slide.
The union has a legal duty to fairly represent all bargaining
unit employees when negotiating or administrating labor
contracts, whether or not individual employees are members
of the union. This can create challenging issues. Individuals
must be willing to give up some freedoms in order for the union
to be able to represent them. At the same time, individuals'
rights to dissent from union activities also require protection.
Employees also need protection from corrupt or negligent union
representatives.
Fair representation issues may fall under the jurisdiction of the
National Labor Relations Board or the federal district courts,
which tends to muddy the waters if the two entities disagree on
a particular point.
Many union decisions benefit some bargaining unit members
while hurting others. This reality makes it difficult for unions to
fairly represent all bargaining unit members all of the time,
especially when issues related to a particular grievance may
conflict with overall union goals and policies. Issues involving
seniority are at the center of fair representation disputes.
The Supreme Court has ruled that the union will satisfy its fair
representation obligation if it considers the interests of all
members, takes its ultimate position honestly in good faith, and
without hostility or arbitrary discrimination. The Supreme
Court has also ruled that union officials should be given wide
latitude in the performance of their duties to act in the best
interests of the bargaining unit overall.
Next slide.
Slide 13
Check Your
Understanding
Slide 14
Summary
We have reached the end of this lesson. Let’s take a look at
what we’ve covered.
We started our discussion by examining grievances. We
defined what a grievance is and why it is beneficial for both the
union and management for grievances to be presented in a
written form. We briefly discussed the therapeutic and legalistic
approaches employees may follow when filing a grievance.
Next, we talked about the typical characteristics of an
employee who files a grievance. We explained how the point
in the grievance procedure where the grievance is resolved may
have a large influence on the employee and the supervisor
involved.
We moved on to several common reasons why employees may
file a grievance. This included a review of the significance of
the grievance process, and the steps both the union and
management should take as they prepare for the grievance
process. This led to a review of the four steps in the grievance
procedure, as well as several ways to use alternate dispute
resolution techniques to resolve grievances.
Next, we discussed grievance resolution. Here, we talked
about the importance of codifying relationships in the
workplace and the challenges that they can create. We also
discussed the benefits of allowing low-level supervisors enough
authority to resolve grievances in the first step in the grievance
procedure.
We moved on to a discussion of power relationships and
empathetic relationships. We then covered why it can be
necessary to be flexible when resolving grievances to ensure the
long-term interests of both the union and management are
considered.
We closed with a discussion of the union's duty of fair
representation and the influence that the Supreme Court has
had on fair representation issues.
This completes this lesson.
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