ARBITRATION 1996AT THE CROSSROADS

ARBITRATION 1996AT THE CROSSROADS

PROCEEDINGS OF THE FORTY-NINTH

ANNUAL MEETING

NATIONAL ACADEMY OF ARBITRATORS

Toronto, Ontario, Canada May 28-June 2, 1996

Edited by

Joyce M. Najita

Director, Industrial Relations Center

University of Hawaii at Manoa

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DEDICATION

This 49th Annual Proceedings of the National Academy ofArbitrators is dedicated to past president of the Academy, SylvesterGarrett (1963), who passed away recently. Helen Witt remembersthe "man" that he was, and his signally outstanding contributionsto the Academy and the arbitration profession are memorializedby past Academy presidents Lewis M. Gill (1971) and Eli Rock(1973), beginning on the following page.

In Memoriam

Sylvester Garrett1912-1996

It's a tough assignment to do justice in a short space to theremarkable career of Syl Garrett, who died January 12,1996, at theage of 84 after a long battle with cancer.

It is perhaps symbolic of his unique stature in the profession thatthe parties in the steel industry, though well aware of his drasticallyweakened condition, still wanted him to serve, if he could, as thearbitrator in their wage reopener negotiations later this spring. Syl

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DEDICATION vii

had been the permanent arbitrator for U.S. Steel and the Steel-workers from 1951 to 1979, and had been called back again andagain to serve them in various capacities thereafter until shortlybefore his death. And while the steel industry was his major focus,there were many other highlights in his arbitration career—suchas playing pivotal roles in settling disputes in the local transitindustries in New York and Washington, and in the airline andother industries.

Syl's contributions to the Academy were similarly outstanding.His presidential address in 1964 on the role of lawyers in arbitra-tion was and is a landmark on that subject. His many other servicesfor the Academy perhaps culminated in 1974, when he joined withBill Simkin and Ralph Seward as the Academy representatives inhammering out the Code of Professional Responsibility with rep-resentatives of the AAA and the FMCS.

Those of us who had the good fortune of being very closepersonal friends of Syl's have an endless host of additional fondmemories of him to treasure. (Eli goes back with him to the earliestWar Labor Board days in 1942, Lew even farther back in the early1930's.) It is a real privilege for us to offer, on behalf of all of Syl'sclose friends in the Academy, this rather inadequate tribute.

Lew Gill and Eli Rock

[Editor's Note: This eulogy appeared in the April 1996 issue ofThe Chronicle.]

The reports of his death were not exaggerated. They said he was"a giant in his profession," "a gifted analyst," and "a man ofenormous intelligence whose decisions reflected an innate senseof fairness and insights into human nature." They told of hisleadership as Chairman of the Regional War Labor Board and histhen-unprecedented tenure as chairman of a major umpireship,the United States Steel/United Steelworkers of America Board ofArbitration. They chronicled dramatic and important arbitrationdecisions and mediation successes over five decades that helpedshape labor relations in the private industrial sector and in publicsector transportation, easing parties past serious obstacles in theirpaths.

But the reports did not get to the soul of the man. For beneathhis thick skin of sometimes blustery competence was an inner selfwho loved cats and had a special language for them, who loved trees

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and trillium, valuing one for its strength and vigor and one for itsfragile beauty, who saw mountains and valleys as a metaphor for hislife and chose to be cast among the mountains in death. He wasdevoted to family and friends, many of whom he cherished for alifetime. He was generous to the edge of profligacy with his worldlypossessions and, in the same measure, with his compassion for andloving acceptance of the human frailties and foibles found in us all.

Syl was not always patient. He did not "suffer fools gladly," for hehad a unique talent for getting to the heart of the matter and noreticence about revealing it. But intertwined with his remarkableself-discipline was an unbounded sense of humor, which made himquick to laugh and eager for fun and camaraderie. A great lover ofwords, he was a master of the double entendre or "bon mot," awelcome and engaging guest at social events, and a refreshing,provocative presence at meetings.

But perhaps Syl's most notable characteristic was his zest for lifeand sanguine acceptance of all its aspects. Without ever flinching,he took life in stride with an infectious sense of adventure and gavethe best that he had. He was not a man one was likely to forget. Itwill be a joy to remember him.

Helen Witt

[Editor's Note: This eulogy appeared in the April 1996 issue ofThe Chronicle.]

PREFACE

Toronto, a "place of meeting" in the Huron Indian language,provided the setting for the National Academy of Arbitrator's49th Annual Meeting, held at the Westin Harbour Castle Hotel,May30-June 1, 1996.

In his presidential address, J.F.W. (Ted) Weatherill, remindingAcademy members of their responsibility to "face the facts of ourtime without discarding values that enlightened our past," calledfor welcome and support of efforts now being made to define andto give life to new forms of representation, new methods oforganizing workers, and new methods of conflict resolution. Theglobalization of the economy, he said, involves the globalization ofthe need for justice in the workplace for billions of people forwhom traditional labor-management arbitration is only one of anumber of forms of dispute resolution (Chapter 1).

Distinguished speaker, Professor Jean-Claude Javillier, Univer-sity of Paris II (University Pantheon-Assas), commenting on thesweeping historical change occurring at the close of the 20thcentury, stressed the need for new institutions and methodsof representation for citizens, as well as workers. He believessocial dialogue can help to facilitate these changes, and that inthe changing world American arbitrators will guide their Euro-pean counterparts toward the kinds of adaptations institutionsneed to make if justice is to be achieved in the third Millennium(Chapter 2).

Warren K. Winkler, Pauline C. Pasieka, and Cori L. Kalinowskipresented a detailed discussion on the Canadian arbitration expe-rience to indicate how arbitrators seek to balance free speechrights with competing interests in a variety of scenarios involvingemployee or union statements about the employer, other employ-ees, third parties, non-union issues, and employer communica-tions about the union or employees. They conclude that while theCanadian Charter of Rights and Freedoms guarantees the rightand freedom of thought, belief, opinion, and expression, it is stillin its infancy. Arbitrators, for the most part, have made decisions

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that impact upon speech without addressing the topic of freespeech and have applied arbitral principles that have evolved overthe years. Next, Lewis L. Maltby suggested principles for arbitratorsto use in determining whether an employee's speech is properlysubject to discipline. Michael Harren chose to demonstrate thebalancing of free speech rights of the employee and the businessneeds of the employer by examining arbitration awards involvinga variety of examples of off-duty conduct (Chapter 3).

Addressing the growing problem of workplace violence, MarkBraverman pointed to the limits of present concepts and lawsregarding worker rights and employer responsibility and the dan-gers of adversarial-based systems of dispute resolution. He calledupon employers to develop crisis prevention plans and urgedneutrals, as well as human resource managers, attorneys, laborrepresentatives, and health professionals, to be open to change, toquestion underlying rules and assumptions related to disputeresolution, and to work together in the creation of structures thatpreserve the workplace as humane, profitable, and stable institu-tions in the face of the violence threatening the world around it.Jordan Barab agreed that an alternative, less confrontationalmethod for dealing with situations of worker-on-worker violence isneeded and, enumerating faults found in employer policies andprograms, recommended various measures, including a writtenviolence prevention program jointly agreed upon by managementand the union made available to all employees. Terming ar-bitrators as the "pathologists of the labour relations system,"Kenneth P. Swan supported the observation of panel membersthat arbitration cannot be expected to provide a reasonableresponse; a pro-active internal dispute resolution structure, care-fully designed to provide a smooth interface with the disciplinaryand grievance arbitration structure is the appropriate way torespond to the case of the troubled, and troublesome, employee(Chapter 4).

In keeping with Academy members' constant endeavor to polishtheir skills, Susan R. Brown called on arbitrators and advocates tofollow the lead of practitioners of alternative dispute resolution intailoring dispute resolution to individual needs. She urged mem-bers to expand their horizons and think of labor arbitration as aframework for resolving disputes rather than a rigid, unchange-able routine for processing grievances. David Grunebaum agreedthat extra hearing procedures should be adopted as a matter ofcourse and offered discovery, issue framing, joinder with other

PREFACE xi

claims, and arbitrability as areas that might better be handled in aprehearing procedure. Shawn C. Keenan related his exper-ience in resolving prehearing issues and noted the best way tocontrol the issues is to resolve them between the parties themselves(Chapter 5).

An actual arbitration case involving the emerging topic of testingfor promotions served as the subject for discussion by the partici-pants, including the two counsel and expert witness. William J.Armstrong provided the background facts, the company andunion arguments, and comments on the arbitrator's award. Theunion's position and arbitrator's award were detailed by JohnCarpenter, followed by Theresa J.B. Kline, who served as theunion's expert witness, and Sean Magennis, who representedthe consulting company that developed one of the tests used in theselection process (Chapter 6).

The obligation to reasonably accommodate employees withdisabilities in Canada was discussed in detail by Katherine Swinton.Elizabeth Mclntyre and Sheilagh Turkington explained therole of unions under Canadian law in the accommodation ofworkers with disabilities and offered suggestions to facilitate pre-vention and resolution of disputes between the parties as well asbetween members of the bargaining unit. Marc Jacobs put forwardan interactive process for determining reasonable accommoda-tion based on an analysis of court cases and arbitration awards(Chapter 7).

The topic of subcontracting under different settings was exam-ined in several sessions. M.G. Mitchnick examined in detail theCanadian treatment of the issue of subcontracting by arbitratorsand the labour boards and contrasted it with the development ofthe law as it has taken place in the U.S. The union view wasarticulated by Gary S. Widen, followed by Robert Macpherson whocommented from a management perspective on the Canadiandevelopments (Chapter 8).

Experience with contracting out disputes in the steel industrywas recounted by Shyam Das, in particular the significant rolearbitration has played in the parties' evolving relationship. Theproblems arising out of the 1986-87 bargaining—the applicationof the major new construction exception and the remedy forrepeated violations of the advance notice requirement—and theirresolution were covered by Carl B. Frankel. Richard I. Thomaspresented management views about the "major new construction"exception. HerbertL. Marx's examination of the railroad industry's

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30 years' experience with contracting out provisions rounded outthe discussion of contracting out clauses (Chapter 9).

The topic of privatization or subcontracting of municipal ser-vices was covered by Stephan Fantauzzo and Michael L. Yoder intheir accounts of the Indianapolis experience (Chapter 10).

Discussions of the future were presented in two segments. Apaper given at the Academy's Continuing Education Conferencein San Antonio, Texas, on November 11,1995, is included in whichProfessor F. Ray Marshall, former Secretary of Labor and Memberof the Dunlop Commission, discussed the basic problems con-fronting American workers and managers and the origins of theseproblems. He sees a "sustainable high value added (SHVA)"economic strategy as more capable of restoring broadly-sharedeconomic growth than any of the other models (Chapter 11). In asession devoted to a discussion of decisionmaking in the workplaceof the future, "Buzz" Hargrove spoke about workplace changeunder the Canadian experience. He was followed by Robert J.Pleasure, who articulated the AFL-CIO view on the evolving needsof workers, and Roy L. Heenan, who called for a change from theold system of adversarialism to a new relationship based on coop-eration (Chapter 12).

Honorary life member Alan B. Gold took center stage and withinimitable style delighted the members with reminiscences ofhis personal life journey in the traditional "fireside chat" (Chap-ter 13). The Academy honored the first Canadian member ofthe Academy Jacob Finkleman in absentia by presenting himwith honorary life membership. The Academy also honored PastPresident (1965) Sylvester Garrett, who passed away in 1996,with a memorial. This volume is dedicated to his memory. In otherbusiness, the Academy adopted amendments to the Code of Pro-fessional Responsibility for Arbitrators of Labor-Management Dis-putes relating to employment disputes and advertising standards.

For this year's excellent program arranged by the ProgramCommittee, chaired by Elizabeth Neumeier, and the outstandingwork by Richard L. Verity and members of his ArrangementsCommittee, the officers and members of the Board of Governorsof the Academy offer their gratitude and appreciation. We thankthe contributors for their cooperation and Anne Scott, who steppedin as BNA editor midway in the process, for her amazing work.Camille Christie, BNA special editor, who so expertly guided theproduction of the Academy Proceedings for the last 13 years,

PREFACE xiii

passed away this past September and her special touch is missingfrom this volume. I would also like to acknowledge the invaluableassistance of the staff of the Industrial Relations Center in thepreparation of this volume for publication.

December 1996 Joyce M. NajitaEditor

CONTENTS

DEDICATION v

For Sylvester Garret! vi

PREFACE ix

CHAPTER 1. Presidential Address: Wherefore? 1ByJ.F.W. Weatherill

CHAPTER 2. Distinguished Speaker: Labor Relationsand the Law in a Changing World 9

By Jean-Claude Javillier

CHAPTER 3. "Free Speech" Rights in the Workplace:How Should Arbitrators Draw the Lines? 18I. Introduction 18

By Reginald AlleyneII. Arbitration of Free Speech Issues in the

Canadian Workplace 22By Mr. Justice Warren Winkler, Paulene C.Pasieka, and Cori L. Kalinowski

III. Employee Perspective 49By Lewis L. Maltby

IV. Union Perspective 52By Michael Harren

CHAPTER 4. When Arbitration Is Not the Answer:Problem-Solving Approaches to Today'sWorkplace 61I. Introduction 61

By Tia Schneider Denenberg

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II. When Neutrals Confront Cases ofWorkplace Violence 63By Mark Braverman

III. Union Perspective 76By Jordan Barab

IV. Workplace Violence—The Proper Role forArbitration 85By Kenneth P. Swan

CHAPTER 5. Pre-Hearing Processes—Old and New . . . . 94I. Pre-Hearing Procedures: We Make the

Process What It Is 94By Susan R. Brown

II. Management Perspective 105By David Grunebaum

III. Union Perspective 114By Shawn C. Keenan

CHAPTER 6. Testing for Promotions 123I. Management Perspective 123

By William J. ArmstrongII. Union Perspective 133

By John CarpenterIII. Expert Perspective 149

By Theresa J.B. KlineFV. Expert Perspective 158

By Sean Magennis

CHAPTER 7. Reasonable Accommodation in theWorkplace: New Developments in theUnited States and Canada 164I. Disability and Discrimination in Canadian

Law 164By Katherine Swinton

II. The Role of Unions in Cases Involving theAccommodation of Employees with Disabilitiesin Canada 176By Elizabeth Mclntyre and Sheilagh Turkington

III. Management Perspective: A Process forDefining Reasonable Accommodation 192By Marc Jacobs

CONTENTS xvii

CHAPTER 8. Subcontracting in the 90s 201I. Contracting Out: Two Solitudes 201

By M.G. MitchnickII. Union Perspective 215

By Gary S. WitlenIII. Management Perspective 232

By Robert Macpherson

CHAPTER 9. Examining Contracting Out Clauses 236I. Arbitration of Contracting Out Disputes in

the Steel Industry 236By Shyam Das

II. The Steel Contracting Out Provision: A StrongClause Negotiated from "Weakness" 247By Carl B. Frankel

III. Some Management Views about "Major NewConstruction" in the Steel Industry 265By Richard I. Thomas

IV. Examining Contracting Out Clauses in theRailroad Industry 274By Herbert L. Marx, Jr.

CHAPTER 10. Competitive Bidding and MunicipalServices 284I. Redesigning Government: A Labor Perspective

on the Indianapolis Model 284By Stephan Fantauzzo

II. Competition and Privatization of MunicipalServices 289By Michael L. Yoder

CHAPTER 11. The Future Shape of IndustrialRelations 297

By F. Ray Marshall

CHAPTER 12. Decisionmaking in the Workplace ofthe Future 310I. Introduction 310

By Anthony V. SinicropiII. Workplace Change and Stormy Weather—

The Canadian Experience 311By Basil "Buzz" Hargrove

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III. A View from the AFL-CIO 321By Robert J. Pleasure

IV. Management Perspective 325By Roy L. Heenan

V. Discussion 330

CHAPTER 13. Reminiscences 341I. Introduction 341

By Frances BairstowII. Fireside Chat: "Ever Paddling Madly

Underneath" 342By Alan B. Gold

APPENDIX A. National Academy of Arbitrators Officers

and Committees, 1996-1997 364

AUTHOR INDEX 373

TOPICAL INDEX 381