grievance arbitration in public employment

191 Pages·2007·18.7 MB·English

_CENTER FOR LABOR RESEARCH AND EDUCATION
JINSTITUTE OF INDUSTRIAL RELATIONS
UNIVERSITY OF &ALIFORNIABERKELEY)
GRIEVANCE
ARBITRATION
IN PUBLIC
EMPLOYMENT
By PAUL D. STAUDOHAR
GRIEVANCE
ARBITRATION
IN PUBLIC
EMPLOYMENT
by PAUL D. STAUDOHAR
CENTER FOR LABOR RESEARCH AND EDUCATION
INSTITUTE OF INDUSTRIAL RELATIONS
University ofCalifornia, Berkeley
©:) 1977 BYTHE REGENTS OF THE UNIVERSITY OF CALIFORNIA
PRINTED IN THE UNITED STATES OF AMERICA
BYTHE UNIVERSITY OF CALIFORNIA PRINTING DEPARTMENT
11NN 14
PREFACE
THIS BOOK examines and analyzes the system of public employment
grievance arbitration as it is developing nationally. A means ofresolving
employee grievances is fundamental to sound labor-management rela-
tions, by helping to prevent strikes and down time and providing a
constructive mechanism for channeling disputes into productive out-
comes. While not as extensive as in private industry, grievance arbitra-
tion in public employment is increasing rapidly. Since the consideration
ofgrievances under formal review procedures established in collective
bargaining agreements is relatively new in the public sector, little
research has been conducted.
Important differences are emerging in the way the system operates
that need identification and explanation. How these differences impact
on labor-management relations is ofinterest to scholars and practition-
ers. Underlying the grievance arbitration process are legal structures.
Statutes, and decisions by courts and administrative agencies, deter-
mine such issues as the scope ofthe arbitrator's authority, reconciliation
with civil service procedures, individual rights, and grounds for review
ofarbitration decisions.
One objective ofthe research was to examine the law by jurisdiction
to identify national trends. A second objective was analysis ofdata, from
individual jurisdictions and government research agencies, to show the
characteristics of appeals systems, e.g. number of procedural steps,
timeliness requirements, and source offinal decision. Numerous deci-
sions have been made by neutral arbitrators in public employment.
Therefore a third objective was to analyze a substantial number ofthese
decisions individually and collectively, as to issues decided, outcomes,
aind unique problem areas.
Several persons made significant contributions to this book. To Nor-
man E. Amundson, Chairman, Center for Labor Research and Educa-
tion, and Betty V. H. Schneider, Director, California Public Employee
iii
iv PREFACE
Relations Project, both at the Institute ofIndustrial Relations, Univer-
sity ofCalifornia, Berkeley, I am particularly indebted. They provided
guidance and helpful suggestions throughout the research. Special
credit is due Joel Seidman, Emeritus Professor at the Graduate School
ofBusiness, University ofChicago. Professor Seidman's knowledge and
experience in labor-management relations for over four decades is
widely venerated. He gave generously of his time, and made several
important suggestions. Thanks are also due William B. Allender, Re-
gional DirectoroftheAmericanArbitration Associationin San Francisco,
and James R. Lucas, San Francisco arbitrator, who reviewed the
manuscript.
Valuable research assistance was provided by D. Gwendolyn Lloyd,
Librarian, and Clara S. Stern, Associate Librarian, of the Institute of
Industrial Relations at Berkeley; and Bonnie G. Cebulski, Associate
Director, and Marla Taylor, Assistant Editor, of the California Public
Employee Relations Project. Manuscript typing was done by Carolyn J.
Williams, Janet Nexon, and Margaret Espeleta of the Institute of
Industrial Relations. Additional help in preparing the manuscript was
received from Janet Kaehms and Rosanne Battaion ofCalifornia State
University, Hayward.
PAUL D. STAUDOHAR
July, 1977
CONTENTS
..............
INTRODUCTION 1
Chapter 1 GRIEVANCE PROCEDURES ........... 5
.............
Functions .............. 5
................
Advantages 6
.................................
Frequency ofUse 6
......................
Negotiating Grievance Language ........ 9
..........
Typical Language ........ ... 11
Procedural Steps and Timing ......... 13
............
Representation 14
..................................
Grievance Committees 15
...........................
Scope ofthe Grievance Procedure.......... 18
........
Communication ofRights ......................... 22
Constitutional Rights ............................ 22
Chapter 2 LEGALITY OF ARBITRATION .29
Introduction .29
Statutes .30
Unlawful Delegation Questions .32
Procedural and Substantive Arbitrability.36
Scope ofthe Arbitrator's Authority .41
Summarizing Comments .47
Grievance Arbitration and No-Strike Clauses.48
Concluding Remarks .53
Chapter 3 ARBITRATION PRACTICE AND PROCEDURE ..... 59
.....
Grievance Mediation ............................ 60
Grievance Factfinding ........................... 61
Frequency and Issues: Federal .......... 62
..........
v
CONTENTS
Vi
Frequency and Issues: State and Local ...... 63
.......
Whether to Arbitrate ............. 65
...............
Selecting the Arbitrator ........... 66
...............
Preparing for the Hearing ......... 68
...............
Hearing Procedures ............... 70
..............
Evidence 72
.....................................
Subpoenas ..................................... 75
Application ofthe Law by Arbitrators ...... 75
........
Remedies ..................................... 77
Transcript ofthe Hearing 79
.........................
Costs 80
.....................................
Expedited Arbitration ............. 83
...............
Chapter 4 RIGHTS OF REPRESENTATION ........ 89
.............
Private Industry Unfair Practice Appeals ..... 90
......
NLRB Deferral to Arbitration ........ 91
.............
Public Employee Appeal Jurisdiction 93
...............
Role ofAdministrative Agencies ....... 94
............
Private Industry Representation Rights ...... 96
.......
Public Employee Representation Rights ..... 99
.......
Conclusions 101
....................................
Chapter 5 ARBITRATION CASES 105
.............................
Section 1, Arbitrability and Management Rights 106
.....
Notification ofa Grievance and Time Limits ......107
Definition ofa Grievance .......................112
Management Rights 116
...........................
Suggested Readings on Arbitrability .............119
Section II, Past Practice 119
..........................
Clear Contract Language 120
.......................
Ambiguous Contract Language-Duration of
Practice and History ofNegotiation 123
............
Suggested Readings on Past Practice.............128
Section III, Seniority 128
............................
Seniority Cases 130
................................
Suggested Readings on Seniority ................136
Section IV, Employee Rights and Benefits 136
..........
Time Worked and Overtime 137
....................
Merit Step Increases and Promotion 142
.............
Leave ofAbsence .............................146
CONTENTS vti
Suggested Readings on Employee Rights
and Benefits 149
................................
Section V, Job and Classification Control 150
...........
Work Assignments 150
............................
Job Classification 153
..............................
Transfer and Layoff 156
........ ...................
Suggested Readings on Job Classification
and Control 160
...............................
Section VI, Discipline and Discharge 160
..............
Due Process and Procedural Requirements 162
.......
Just Cause Found and Penalty Upheld 166
...........
Just Cause Not Found 171
.........................
Just Cause Found and Penalty Modified 175
..........
Suggested Readings on Discipline and Discharge . .178
Appendix
American Arbitration Association Expedited Labor
Arbitration Rules 181
.............................
LIST OF TABLES
TABLE
1. Organized Full-Time Employees by Level and
Type ofGovernment, 1975 ......... 1
......................
2. Percent of Full-Time Employees Organized by
Function and Level ofGovernment, 1975 ...... 2
............
3. Negotiated and Agency Grievance Procedures in
State and Local Agreements by Level ofGovernment, 1973... 7
4. Grievance Procedures in State and Local Government
Agreements by Level ofGovernment, 1974 ..... 8
............
5. Negotiated Grievance Provisions in Police and
Fire Agreements, 1973 ........... 10
..............
6. Employee Organization Role in Grievance Procedures by
Level ofGovernment and Employee Organization in
State and Local Agreements, 1973 16
.........................
vtii CONTENTS
7. Scope ofGrievance Procedure in State and
Local Agreements by Level ofGovernment, 1973 ..... 19
......
8. State Laws Providing for Grievance Arbitration, 1976 ........ 31
9. Work Stoppage Provisions in State and
Local Government, 1974 ............... 52
..................
10. Grievance Arbitration in Collective Bargaining Agreements
in the Federal Service, 1975 62
..............................
11. Issues Decided in Favor ofAgency or Union in
Arbitration Awards in the Federal Service, 1976 63
.............
12. Grievance Arbitration Procedures in State and Local
Government Agreements, by Level ofGovernment, 1974 .... 64
13. Average Per Diem Rates, Fees and Expenses Charged by
Arbitrators Based on Closed Arbitration Award Cases
Sampled for Fiscal Years 1970 through 1975 ..... 81
...........
14. Union's Cost ofArbitration for a One Day Hearing, 1976. 82
15. Allocation ofArbitration Costs Between Parties in
State and Local Government, 1973 ....... 83
.................
16. Expedited Arbitration in Steel, Postal Service, and
AAA Procedures, 1976 ........... 84
........................
INTRODUCTION
BY 1977 there were about 13 million state and local government em-
ployeesand2.6millionfederalemployees. Since Executive Order 10988
was issued in 1962, union organization and collective bargaining of
federal employees have risen dramatically. About 50 per cent of the
federal workforce is currently represented in collective bargaining.
In October 1975, a total of4.7 million or 49.9 per cent ofall full-time
state and local government employees belonged to "employee organiza-
tions," groups which attempt to provide input into the government's
policies regarding conditions of employment. Some 4.2 million em-
ployees, or approximately 35 per cent ofall state and local government
employees, were represented in bargaining units. (See Tables 1 and 2.)
TABLE 1
ORGANIZEDFULL-TIME EMPLOYEES BYLEVELANDTYPEOF GOVERNMENT, 1975
Level andType Organized full-time Employees
ofGovernment Number Percene
Total 4,702,228 100.0
State Governments 1,004,961 21.4
Local Governments 3,697,267 78.6
Counties 507,086 10.8
Municipalities 1,077,500 22.9
Townships 117,529 2.5
School districts 1,884,626 40.1
Special districts 110,526 2.3
aThe figures refer to the percentage of organized workers that are employed by the types of
government. Forexample, 21.4percentinstategovernments, meansthatthispercentageofthe
total employees organized are employed by state government, not that 21.4 per cent ofstate
government employees areorganized.
Source: U.S. Department ofCommerce, Bureau ofthe Census and U.S. Department ofLabor,
Labor-Management Services Administration, Labor Managemnent Relations in State and Local
Governments: 1975, Stateand LocalGovernmentSpecialStudiesNo. 81 (Washington, D.C.: U.S.
Government Printing Office, 1977), p.1