Offhand I can think of several very good reasons why a musician would want to be covered by a union contract. A union agreement provides both management and employees with a standardized set of rules, obligations and entitlements concerning terms and conditions of employment which otherwise would not exist. In most states, employees are presumed employed “at will,” meaning that they may be dismissed for any reason, good or bad, as long as it is non-discriminatory or doesn’t violate civil service laws. To counter this presumption, most union agreements provide employees with protection against arbitrary discharge by requiring the employer to have “just cause” before it disciplines or discharges an employee covered by its terms. Perhaps the greatest benefit of a union contract, however, is that most provide a quick and inexpensive means for dispute resolution: arbitration. In this article, I will explore in basic terms what arbitration is and what it is not.
BYPASSING THE COURTS
A union agreement is a contract and is similar in many respects to an ordinary commercial contract. However, if a commercial contract is breached, normally the only remedy the injured party has is to initiate a lawsuit. This, more often than not, is an expensive proposition.
Union agreements bypass the necessity of suit by containing a grievance procedure. This is less formal than going to court. And, in most circumstances, the union processes the grievance at no additional cost to the covered employee.
If a union agreement is breached, the injured party can submit a grievance detailing the nature of the breach. The scope of grievable offenses is limited by the terms of the grievance clause. Some grievance clauses provide a wide range of issues which can be grieved. Others are more narrowly drawn.
Grievances usually take two forms; those that pertain to disciplinary matters and those that pertain to contractual interpretation. There are, of course, situations which call for an arbitrator to deal with both.
Once submitted, a grievance goes through various steps of processing. At each subsequent level, the grievance is adjusted by a higher level of management. If it is satisfactorily resolved at any step or withdrawn, the grievance procedure is terminated.
ARBITRATION IS THE FINAL WORD
The last step of the grievance process is most often final and binding arbitration. This occurs when all prior steps have failed to adequately resolve the grievance. Arbitration is often referred to as “alternative dispute resolution” or “ADR.” It is a process by which a third party – often a labor professional, retired judge or clergyman – is authorized to make a final and binding determination of who should prevail in the dispute.
A date is then set for an arbitration hearing – a mini-trial of sorts at which the parties present proof of their respective positions. Evidence is submitted and testimony is taken under oath. However, the procedure is less formalized than a court trial and often takes only one or two days to complete.
The arbitrator serves as both judge and jury, making findings of both fact and law. After the completion of the arbitration hearing, the arbitrator renders his or her award (usually within 30 to 45 days).
THE ROOT OF THE MATTER
A fundamental tenant of labor arbitration is that the arbitrator’s award must have its basis in the parties’ collective bargaining agreement. In 1964, the U.S. Supreme Court in three decisions known as the “Steelworker’s Trilogy” held that a labor arbitrator is not authorized to add to or otherwise modify the unambiguous terms of a collective bargaining agreement. Of course, if the terms have an ambiguity, the arbitrator is authorized to glean the intent of the parties by examining the bargaining history of the ambiguous provision. If the award has at least a minimal foundation in the collective bargaining agreement, it will not be voided by a court. Hence, unlike a judicial decision, once an award is issued, there is no right to appeal it to a court or higher authority.
Many believe that the best thing about a union contract is higher wages; historically, union workers make a third more than nonunion workers. Beneficial economic terms are meaningless, however, without a quick and inexpensive means of enforcing those terms. Arbitration provides that means and is probably the best tool for effectuating and administering industrial fairness.
Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.