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Negotiating Protective Dispute Settlement Procedures

This guide discusses vital strategies for unions in negotiating protections during dispute settlements. It emphasizes the importance of retaining management’s reserved rights while ensuring unions secure contractual protections. Key points include the significance of written agreements, grievance mediation, and avoiding detrimental clauses like the zipper clause. Additionally, it highlights the role of clear communication and documentation, including grievance dispositions and correspondence. By adopting effective negotiation tactics, unions can better level the playing field and uphold member rights.

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Negotiating Protective Dispute Settlement Procedures

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  1. Negotiating Protective Dispute Settlement Procedures Union efforts to level the playing field

  2. Conventional Wisdom: Reserved Rights of Management • Management retains all rights not given up • Unions duty to get contractual protection • If past practice to the contrary negotiated language still rules • get it into the contract • get a memo of understanding • avoid the zipper clause

  3. Stretching the Agreement • Viewed as part of the agreement are • Letter of Agreement • Grievance settlements • Arbitration awards but not dicta • Supporting your view • Parol evidence if there is ambiguity • A record of correspondence confirming actions • Keep a log of Grievance dispositions

  4. Negotiated Languageto Push For • Try to get • actual rather than constructive notice • union right to grieve • list of offenses • right of union presence when disciplining • commitment to corrective discipline • grievance mediation • washout clause • maintenance of standards

  5. Negotiated Language to Avoid • Attendance program commitment (or even participation in drafting) • Fixed escalated penalties for wrongdoing • Seniority as the tie breaker in promotions • Loser pays all • Permanent Arbitrator or too small panel • Tripartite arbitration panel • Zipper clause

  6. Don’t Go Down with the Myth of Daugherty’s 7 Tests • Investigation: Desirable, not mandatory • NRAB context • appellate • no live grievant or witnesses • no cross examination • Outside railroads • witnesses, grievant, • no need for prior hearing • Arbitrator provides due process standards

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