Over the next few weeks, I am going write a bit about “arbitrability,” which is the question of whether a labor dispute can be arbitrated. Before I discuss the main topic, I want to share my understanding of the purpose of arbitration. Without a union contract, every term and condition of employment is set by the employer. Unions negotiate take-aways; every term in an agreement is one that the Union has helped set, taking away management’s authority over that issue. For example, before there’s a union, the employer may have unlimited discretion to deny vacation requests or set vacation schedules. After the union negotiates a contract, the employer must follow whatever they’ve agreed to, like seniority bidding on vacation use. This means the union has “taken away” the employer’s discretion on this issue.
The only exception to this principle is the grievance procedure, which is a take-away from the Union. With a grievance procedure, a union cannot have a strike or take other labor action that deprives the employer of its labor. The union must submit its dispute to the grievance procedure. The grievance procedure “takes away” the union’s right to strike. To ensure labor peace and stability, there’s a strong incentive to use the grievance procedure, up through arbitration.
It does occur, however, that there are issues that one side or the other does not believe should be arbitrated, or even grieved. When this happens, we say that there is an issue of arbitrability. There are two kinds of arbitrability: Procedural and substantive. I’ll take about procedural arbitrability in my next post.
Thanks for reading and let me know if there are any topics you’d like me to address!