Use of Collective Bargaining History in Arbitration - Chapter 12 - AAA Handbook on Labor Arbitration & ADR, 3rd Edition
Tom Barnes is an Arbitrator on AAA, FMCS, MERC (Mich. since 1988) and several permanent panels. He has been in private practice for over 40 years as an employer labor and employment counsel, has spent 3 years as a consultant to health care unions and, has acted as settlement counsel on major employment damage cases.
USE OF COLLECTIVE BARGAINING
HISTORY IN ARBITRATION
It is somewhat ironic that while all collective bargaining agreements (“CBAs”) have their genesis in bargaining history, the origins and evolution of a collective bargaining provision is not often offered evidence in an arbitration hearing. As an advocate for nearly 40 years, I seldom offered such testimony. That may emanate from the fact that 70% of my cases were discharge or discipline matters under just cause provisions and bargaining history is usually of little significance. This may be due to a variety of other factors, viz: the authors are not available to testify; the origins are forgotten by succeeding negotiators on both sides of the table; bargaining notes, much less minutes, were not kept or are indiscernible . . . the sum of which is that the collective history is lost. With that lost history, any chance of demonstrating the real intent of the parties or disabusing an arbitrator of what appears to be plain meaning of a CBA provision evaporates as well.
This is not a law review article. These are observations from four decades of negotiating labor agreements for both management and labor. That was in the setting of where the “sausage was being made” and thus these are reflections not from the flight deck but the bilge deck. In that connection, fine points of evidence such as relevancy, admissibility, hearsay, attorney-client and work product privileges, and parol evidence, all relevant in the admission of bargaining history, are not the focus. Rather, the practical aspects of how CBAs are negotiated and how arbitrators may consider such recorded labor history, is the focal point.