Arbitration decisions tend to stick
There’s a downside to agreeing to decide disciplinary matters in arbitration. Once you agree to have your decisions second-guessed in arbitration, don’t expect to get the arbitrator’s decision easily overturned.
Essentially, only decisions that seem arbitrary and capricious can be overturned. Decisions that turn on credibility usually stick.
Recent case: Christina worked at a call center where workers were represented by a union. The collective bargaining agreement provided for arbitration of discharge decisions.
When Christina was called into a meeting to discuss her attendance, she revealed that her late arrivals were because she was caring for a sick family member. The supervisor then informed her of her FMLA leave rights and promised she would not be disciplined for using leave. Christina left the meeting in an upbeat mood.
She went back to her cubicle and announced to co-workers that she was taking a break and going for coffee. Apparently someone thought they heard Christina say she was taking a break and going to get a shotgun.
That misunderstanding precipitated a safety crisis. Christina was fired after a brief investigation into the alleged comment about a gun.
She requested arbitration and the arbitrator ordered her reinstatement after concluding that Christina had not made a threat.
The employer appealed, arguing that the arbitrator’s decision was wrong. But the court said the arbitrator had merely decided whom to believe—and such a discretionary decision wasn’t subject to appeal. (St. Barnabas v. United Health Care Workers, No. 16-CV-04117, SD NY, 2016)
Final note: One reason employers are often opposed to unionization is the loss of control over final decisions. It goes with the territory.
So what should an employer do if employees are trying to unionize? Consult an experienced labor lawyer as soon as possible.