Feb. 6, 2016 SIGN IN | REGISTER

Negotiations, Mediation Key to First Contract Arbitration

The employer and union in a particular case could select their own arbitrator or, if unable to agree on one, would choose their neutral arbitrator from this list. They could appoint their own arbitrators in a tripartite structure and in discussion of decision options, thereby building more opportunities for input and mediation in the process and giving the parties another way to inform the neutral arbitrator about how different decision options would affect the business and the workforce. Experience shows that these tripartite deliberations often produce agreement between the parties.The scope of issues to be considered would be limited to wages, hours and working conditions — the same issues that currently are mandatory subjects of collective bargaining. The arbitrators would be required to consider standard criteria in reaching their decisions, including the financial and competitive situation of the employer and comparisons with others in the same occupation and industry. Because these would be first contract negotiations, both the employer and the union would have ample opportunity to provide ideas and evidence on how changing, state-of-the-art practices and current competitive conditions should shape the outcome.Further opportunities for mediation and negotiation would be built into the tripartite process during and even after a draft award has been written.Experience, reinforced by evidence from econometric studies, demonstrates that the results of this type of arbitration system mirror negotiated settlements in comparable bargaining units in an industry and occupation. Moreover, arbitrators are inherently conservative and do not impose new ideas of their own that would turn out to be unworkable. The presence of employer and union arbitrators in the tripartite structure and deliberations provides further protection against such a possibility. So there is no factual basis for claims of critics that arbitrators will either inflate labor costs or impose decisions that are harmful to employers or workers.This is the real world of collective bargaining under arbitration, not some made up scenario painted by those who oppose designing a proven, fair system for resolving first contracts if one or both parties are unwilling to negotiate an agreement on their own. Unlike last best offer or baseball arbitration where one side would win all at the expense of the other, on an issue or whole contract, this approach would seek to find the agreement the parties should have reached had they bargained to finality.Most importantly, it would ensure an agreement will be achieved, something that has been out of reach under the current failed law for more than 40 percent of employee groups that vote for representation. It is time to build these provisions into the labor law bill before Congress and debate them on their merits and track record.Thomas A. Kochan is the George M. Bunker Professor of Management at MIT’s Sloan School of Management and co-director of the MIT Institute for Work and Employment Research. Arnold Zack is past president of the National Academy of Arbitrators. Both are faculty members at the Harvard Law School Labor and Worklife Program.

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