I

71-11,830
ERICKSON, Kai Lloyd, 1929A STUDY OF GRIEVANCE ARBITRATION AWARDS IN
MICHIGAN PUBLIC SCHOOLS.
Michigan State University, Ph.D., 1970
Education, administration

U niversity M icrofilms, A XEROXC om pany , A nn A rbor, M ichigan

C o p y r i g h t by
KAI L L O Y D E R I C K S O N
1971

A STUDY OF GRIEVANCE ARBITRATION AWARDS
IN MICHIGAN PUBLIC SCHOOLS
By
Kai Lloyd Erickson

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of
DOCTOR OF PHILOSOPHY
Colloge of Education
19?0

A STUDY OF GRIEVANCE ARBITRATION AWARDS
IN MICHIGAN PUBLIC SCHOOLS
By
Kai Lloyd Erickson

AN ABSTRACT OF A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of
DOCTOR OF PHILOSOPHY
College of Education
1970

ABSTRACT

A STUDY OF GRIEVANCE ARBITRATION AWARDS
IN MICHIGAN PUBLIC SCHOOLS
By
Kai Lloyd Erickson

The purpose of the study was to investigate,
analyze and describe the nature of grievance arbitration
affecting teachers in Michigan public schools since enact­
ment of that state's public employee bargaining law.
The study was exploratory and descriptive and the
technique of content analysis by classification was used.
The population consisted of 5 8 arbitration awards involving
6 5 grievances.

To narrow the scope of the study, two

objectives were developed— the first was to attempt to
determine whether a new common law was being fashioned for
school districts from the arbitration process.

The second

was to secure data dealing with the actual arbitration pro­
cess itself, including such items as time periods required,
costs, outcomes, and other information.

The data, except

for cost figures, were extracted from the contents of the
arbitration awards.

Kai Lloyd Erickson
A series of eleven questions were developed, the
answers to which would assist in accomplishing the objec­
tives of the study.

Classifications for the information

sought were developed and frequencies were recorded.
Medians, ranges, totals, and percentages of responses were
calculated•
The findings revealedt
1.

The two most common sources for authority cited

by arbitrators as basis for their decisions were the
meaning of the contract language and the merits of the
individual case.

Precedence from industrial arbitration

accounted for ton percent of the decisions, while no school
arbitrations were cited as basis for decisions.

No pattern

of increased reliance upon industrial arbitration prece­
dence was observed.
2.

The most common issues submitted to arbitrators

dealt with computation of basic wages and compensation for
additional duties or assignments.

Other issues included

failure to reappoint teachers to non-tenure positions (par­
ticularly coaching), loss of leave or insurance benefits,
letters of reprimand to teachers, and failure of a district
to actively seek to employ black teachers, and others.
3«

Teachers were successful in 42 of 65 arbitrated

grievances in the study and were most successful in areas
of compensation for additional duties, in disputes over
basic wages and where teachers wore threatened with

Kai Lloyd Erickson
discharge or non-reappointment to non-tenure positions*
4.

Where violations by school districts were

determined by the arbitrators, the most common remedies
were to order payment for lost wages, new computations for
compensation, or reinstatement of improperly released
teachers•
5*

The most frequent defenses by school districts

included management perogatives, parallel jurisdiction by
another agency, or the merits of the case*
was also placed on past practice*

Heavy reliance

A threshold argument of

non-arbitrability was raised in nearly 3 0 per cent of the
cases*
ful*

The most common defenses proved the least success­
When school districts argued the meaning of contract

language, used emergency conditions as excuses for noncompliance, or raised the sole issue of arbitrability, they
wore the most successful.
6*

The median time period between the original

filing of a grievance and the issuance of a final arbitra­
tion award was 212*5 days.

The median timo between an arbi­

tration hearing and the issuance of an award was 3 6 days•
7.

The fees and expenses of arbitrators ranged

between $150 and $1,533 with the median cost at $450.

Only

nine attorney fees and expenses were located and the median
figure for this limited data was $9 2 5 .
8.

Attorneys represented school districts in nearly

75 percent of the proceedings while teachers used attorneys

Kai Lloyd Erickson
in only 44 percent of the cases•

Both parties were repre­

sented by attorneys in 40 percent of the arbitrations*
9,

Written briefs containing supporting arguments

and documentation by the parties were mentioned in over half
of the arbitration awards studied,
10.

The services of the American Arbitration Associa­

tion were used to secure arbitrators in approximately twothirds of the arbitrations and the balance were selected by
the local parties with two exceptions involving government
agencies•
11,

The arbitrators tended to be experienced, with

nearly throe of four grievances decided by arbitrators who
held membership in the National Academy of Arbitrators•
Seventy percent of the grievances were decided by arbitra­
tors who were either attorneys or had legal training.
Conclusion of the study was that a new authority
was present in school districts resolving grievances by
arbitration.

The authority of grievance arbitration has

been supported by Federal and Michigan courts and is insti­
tutional in nature, bringing to the schools such established
concepts as discharge for just cause, corrective discipline,
and recognition of the right of management to manage,

A

new common law resulting from grievance arbitration in the
"education industry" will likely define the role of school
management, the role of teachers as distinct from their
roles as private citizens, definition of professional duties,

Kai Lloyd Erickson
appropriate toacher behavior, and a host of related matters
of concern to the teaching profession.
Recommendations were made for permanent arbitration
umpires for local school districts, geographic areas or at
the state level to increase predictability and value of
precedence.

The Michigan Department of Education was sug­

gested as a repository of all school arbitration awards to
increase precedential value,

A future study at a later

period is recommended to determine the predicted impact of
grievance arbitration upon school management, the teaching
profession, and public education.

ACICII0WLEDGEI4E NT
Numerous preceding authors havo unerringly identi­
fied and acknowledged the considerable sacrifice or
irretrievable time spent away from their children and spouses
in the preparation of a major study.
this instance.

Such was tho case in

Whether tho sacrifice was either wise or

justifiable can only be evaluated at a later period in life.
Nero tho inpact on the livos of my wife Patricia, my son
Eric, and my daughter Martino, is acknowledged.
Doctoral committees composed of learned professors
are created to assist, encourage, guide, stimulato and
challenge their students.

All those qualities wore present

in the author’s committee and are here acknowledged,

Tho

keen interest and wise counsel by chairman Dr. Stanley Hockor,
the expertise in labor relations by Dr. Daniel Kruger, and
the willing and thoughtful guidance by Dr. David Smith and
Dr. Charles 31ackman wore invaluable and necessary for tho
completion of this study.
Finally, tho time and financial assistance of a
sabbatical leave provided by educators of Michigan, who are
members of the Michigan Education Association, cannot bo
adequately repaid.

It is to these many patrons that most

sincere appreciation and acknowledgement are extended.
Kai L. Erickson
ii

TABLE OF CONTENTS
Page
A C K N O W L E D G E M E N T ......................................
LIST OF TABLES

................. . .................. .

ii
v

Chapter
I.

II.

INTRODUCTION

................................

1

Purpose of the Study
The Problem and Its Setting
Significance of the Study •• • • » • • • •
Methods and Procedures
.................
T e r m i n o l o g y ............
Overview of the Study
• • • • •

2
4
6
9
10
16

REVIEW OF THE L I T E R A T U R E ...................

19

The Arbitration Process
• • • • •
Some Problems Encountered in Grievance
A r b i t r a t i o n .........................
Other Implications ofArbitration . . .
Arbitration and the Law • * .
..........
Important Federal Court Decisions • • •
Michigan Decisions
• • • • • • • • . .
Appeals from Michigan School Arbi­
tration A w a r d s ................
Summary of the L i t e r a t u r e .................
III.

METHODS AND P R O C E D U R E S .....................
.........................
Procedures
Population of the Study and Sources
of D a t a .......... .................. • .
Objectives of the Study . . . . . ........
Classification and Analysis of tho Data • •
Assumptions and Limitations ............. •
Summary
•

iii

20
31
48
56

60
64
67

70
73
73
74
77
80
84
85

Chapter
IV.

V.

Page
PRESENTATION AND DISCUSSION OF THE FINDINGS .

88

Objective #1 - A Now Common Law • • • • . .
Objective #2 - Additional Information
About tho Arbitration F r o c o s s ...........
Additional Findings Embodied in Arbi­
trator Language ........ . . • • • • • •
Discussion of the F i n d i n g s ...............

88

101
114

SUMBVARY, CONCLUSIONS, AND RECOMMENDATIONS • .

118

Summary ..........
. . . . . .
................
Conclusions
Recommendations . . . . . . ...............
Suggestions for Further Study . . . . . . .

118
122
126
130

94

BIBLIOGRAPHY..........................................

132

AFPij.iDICn.S . . . . . . . . . . . . . . . . . . . . . .

139

LIST OF TABLES
Tabic

Page

I* Authority Cited as Basis for Arbitrator's
Decision ..................... • • • • • •
II.
III.
IV.

Issues Submitted to Arbitration .............

90

Outcomes of Issues Submitted to Arbi­
tration ................

91

Typos of Remedies Ordered by Arbitration

• .

93

School District Defenses and Outcomes . . . .

9^

7I-A• Time Between Filing of Grievance and
Arbitration H e a r i n g ..........
7I-B.
7I-C,

/III-A.
7III-B.
7III-C.
IX,
X-A.
X-B.

95

Time Between Arbitration Hearing and
A w a r d s ....................................

95

Total Time Required Betweon Filing of
-rievancos and tho Issuing of tho
Arbitration Award . . . • • •
.............

96

7II-A . Arbitrator Foes and Expenses
VII-B.

92

. . . • • • • • • •

V . School District Defenses
7-A.

89

Attorney Fees and Expenses

...............
. . . . . . . . .

97
98

School District Representatives in Arbi­
tration P r o c e e d i n g s .......................

98

Teacher Organizations' Representatives in
Arbitration Proceedings • • • • • ........

99

Attornoy Representation in Arbitration
P r o c e e d i n g s .........................

99

Selection Procedures for Arbitrators

• • • •

100

C-riovancos Decided by Arbitrators
with Logal T r a i n i n g .......................

101

Grievances Docidod by Members of tho
Rational Academy of Arbitrators . . « • • •
v

101

CHAPTER I
INTRODUCTION
It is the opinion of the writer that the 1960*8 will
be recorded in the history of Michigan government and educa­
tion as a time of particular importance.

The passage of a

state law extending formal collective bargaining to Michigan
public school employees will be marked as one of significance
to future scholars and students of Michigan education.
It is predicted that “no single factor will change
the operating characteristics of American public school
systems during the coming decades more than the outcomes of
professional negotiations across the entire United States.
Specifically in the state of Michigan it has been
noted that the years of 1964 through 196? have marked the
beginning of a new era for Michigan teachers.

The new laws

of Teacher Tenure and Collective Bargaining have given
teachers security and power to begin an extraordinary change
in their status,

■'■James E, Heald and Samuel A, Moore II, Tho Toachor
and Administrative Relationships in School Systems (New
Y o r k i T h e Macmillan Company, 1966), p* 260.
^Jack E. Meeder, “A Study of Attitudes and Problems
Relating to State-wide Tenure and Compulsory Bargaining for
Teachers in Michigan,*' (unpublished Doctoral Dissertation,
Michigan State University, East Lansing, 1968 - abstract.)
1

2
Ono scholar, in commenting on the impact of collec­
tive bargaining in Michigan education observed it was*
• . * substantially altering the employer-employee
relationship in governmental jurisdiction from one of
master-servant to one of equal partnership. Probably
the most seriously affected division of government
service so changed was public education, especially
board-teacher relationships
It was these predictions of an important historical event
occurring in Michigan education that led to the selection
of grievance arbitration as a focus for study.

It is one

important fact of tho phenomenon of collective bargaining
in Michigan public education.
Purpose of the Study
The purpose of this study is to investigate, analyze
and describe the nature of grievance arbitration affecting
Michigan teachers which has taken place in the Michigan
public schools since the enactment of Michigan's Public
Employment Relations Act of 1965*
A major objective of the study is to attempt to
determine whether a new common law affecting school employee
relations is developing as a by-product of collective barraining in education.

Is an educational counterpart of

"industrial jurisprudence" emerging from the body of arbi­
tration awards being issued in Michigan schools?

^Charles T. Schmidt, Jr., "Organizing for Collective
Bargaining in Michigan Education 1965-1967," (unpublished
Doctoral Dissertation, Michigan State University, East
Lansing, 1 9 6 8 ), p. ii.

3
The United States Supreme Court has noted "the
collective agreement covers the whole employment relation­
ship,

It calls into being a new common law— the common law

of a particular industry or a particular p l a n t W h e t h e r
such a new common law in education is being fashioned
through the relatively new grievance arbitration process
is unknown.

It is not known to what extent past practice

in the schools is being upheld or swept aside by arbitrators
in favor of other authorities.
Will the authority relied upon by arbitrators be
the Michigan school code law or general Michigan statutes?
Might federal statutes or even language contained within
the Federal constitution or state constitution be considered
persuasive?
Perhaps arbitrators will confine themselves to the
local agreement and rely on dictionary definitions to detex*mine the meaning of the parties.

Will other arbitrators*

decisions in private industry or in other school settings
be considered persuasive?

To what extent is past practice

or the intent of the original negotiating parties considered
by arbitrators?
A second objective of the study is to secure data
dealing with the actual arbitration process.

The culmina­

tion of this objectivo should reveal such information

^United Steelworkers of America v , Warrior & ^ulf
r^avi^ation Co.. 363 U.S. 5 7 9 ,

4
regarding; the arbitration process as the time period
required for disposition of grievances through the arbi­
tration process, the issues most frequently brought to arbi­
tration, which parties represent the disputants, and an
indication of the degree of formality in arbitration.

Tlv

average costs for arbitration and the relative success of
the parties in the outcome of arbitration proceedings are
also of interest.

Finally, the study will identify the

arbitrators who render these decisions and their backgrounds
and training.
It is for these purposes that this study was con­
ducted.

It is an exploratory and descriptive study.
The Problem and Its Setting
Since the advent of collective bargaining, extensive

grievance procedures have been introduced, for tho first
time, in tho administration of Michigan public schools.
It was estimated that for the school year 1 9 6 8 -6 9 ,
over two hundred collective bargaining contracts between
Michigan teacher organizations and their employing boards
of education provided for binding arbitration as the ter­
minal stop in grievance procedures.^

Additionally, the

National Education Association reported that in the 1 9 6 7 - 6 8

^Unpublished Research Memo, September 23, 1 9 6 9 by
MSA Research Division, East Lansing, Michigan.
(5 pages
setting forth a list of 1 9 8 MEA units possessing arbitra­
tion clauses and 1 3 8 units which had contract provisions
on agency shop.)

5
school year, 83*8 percent of 5 5 0 comprehensive agreements
in a national study provided for grievance appeal to
parties outside the school system.^
Although grievance arbitration is a relatively new
process in the public school, it was reported to be one of
the major issues contributing to tho difficulties encoun­
tered

in teacher contract bargaining in the autumn of

*1969. 7
The process of grievance arbitration is likely to
continue to expand in Michigan public schools, in line
O
with a national trend already ncted.
One writer has pre­
dicted that teachers located in districts which do not have
arbitration in their grievance procedures will likely press
for that process in the future.9
Since grievance arbitration is a relatively now
process in education, no studies were located which
attempted to describe the current state of arbitration in
Michigan education.

Therefore, both parties engaged in

^Grievance Procedures for Teachers in Negotiation
Agreements. National Education Association. Research Report
1969 - R 8 (Washington, D.C., 1 9 6 9 ), p. 13•
Vol.

^Teachers Voice. Michigan Education Association,
No • 1 (East Lansing, Michigan, September 1, 1 9 6 9 ).

Grievance Procedures for Teachers in Negotiation
Arreements. t>. 3, table 5 ,
9jack Steibcr, "Collective Bargaining in the Public
Sector," Challenges to Collective Bargaining, edited by
Lloyd Ulman (Englewood Cliffs, New Jersey* Prentice-Hall,
1967), p. 8 5 .

6
grievance arbitration had to roly cither upon export
attorney assistance or draw upon the practices prevailing
in the industrial sector.

Lacking empirical information

regarding the history of grievance arbitration in Michigan
schools for the past four years, the parties were not able
to draw the subtle distinctions which might exist between
those industrial practices which might be applicable and
those practices v/hich may not be applicable for the school
situation.
Siraificance of the Study
The significance of this study is predicated upon
the belief that arbitration of teacher grievances will con­
tinue to expand as the process by which disputes between
teachers and their public employers are resolved.

Arbitra­

tion is new to tho field of education and has been resisted
by many school authorities, is controversial in the litera­
ture and a major issue in teacher bargaining disputes.
As pointed out by Borg, "the major purpose of
descriptive research in education is to toll *what is
■^To moot the demands of collective bargaining in
tho public sector may call "for tho design of a whole new
apparatus of institutional mechanisms, only part of which
can be copied from the private sector." George H.
Hildebrand, "The Public Sector," Frontiers of Collective
Bargaining, edited by John T. Dunlay and Neil W , Chamberland
(Now York* Harper and Row, 1 9 6 7 ), p. 15^.
^ W a l t e r R, Borg, Educational Research (New Yorki
David McKay Company, Inc., 19633, p. 202,

7
Descriptive studies serve several functions*

in the face

of conflicting claims regarding a new subject it is often
of great value to know the current state of the subjoct.
Secondly, it is often a preliminary step to bo followed by
more rigorous control and methods of study.

Third, descrip­

tive studios are widely used as the basis for internal
evaluation and educational planning by alert school sys­
tems .^2
It has boen predicted that collective bargaining
in the public sector will follow existing law governing
private labor-i.ianagomont r e l a t i o n s S h o u l d this study
indicate such similarities, then educators will be in a
better position to accept or reject the arbitration process
or perhaps modify its future development to bettor coincide
with their particular values and beliefs.

In any event,

intelligent reaction likely cannot occur without accurate
information•
To highlight the significance of grievance arbitra­
tion in education, it is reported that, "this means many,
if not most of tho areas negotiated into the agreements will
be subject to an appeal beyond the board of education,
When one considers that the scope of teacher bargaining is
12Ibid.. pp, 202-203.
■^Stoibor, “Collective Bargaining in the Public
Sector," p, 76.
!^John riotzlor, "What is Negotiable7" Michigan
School Board Journal. Vol. 16, No. 5 (Juno, 1969;* p* 23.

8
unprecedented in the history of American labor relations
and covers such diverse areas as textbook solection,
teaching hours, and pupil-teachor ratios,-*-^ the implications
are potentially enormous,
Theso areas, coupled with the more conventional ones
in tho field of industrial relations, but unconventional in
the field of education, i.e., union security, job posting,
rrievanco procedures, and seniority, are all potentially
subject to tho outcomes of decisions by arbitrators.

The

controversy of grievance arbitration, the uniquonoss of
this process in education, tho awesome scope of jurisdiction
encompassed by the process, all point to its potentially
profound impact on Michigan public education, upon school
administration, and upon the iMichigan teaching profession.
From this study some specific recommendations for
legislation may be indicatod.

The viows of arbitrators may

suggest personnel problems not formerly known or recognized.
The identification of school practices which are consistently
upheld or rejected by arbitrators may assist in recognition
of new common law precepts in education.

The decisions by

tho parties of whether to arbitrate a grievance may bo
enhanced by information produced by this study.

Later

•^V/illiam c. Miller," Curricular Impli cat ions of
ho.rotiations," Educational Leadership. Vol. 23, No. 7 (April,
1 9 0 6 ), pp. 533-536 and William F, Young, "Curricular Nego­
tiations," Educational Leadership, Vol, 26, No. ^ (Jan.,
---------- *
1 9 6 9 ), pp. W - 3 T + 3 T

9
researchers studying grievance arbitration in Michigan
schools, as well as those conducting national studies, will
have a starting place.
For those reasons, it seems that a thorough and
scholarly exploration of this subject is not only justified
but needed by the academic community, the school

systems,

and teacher organizations,
Methods and Procedures
The research technique utilized in this study was
one of direct content analysis.

The content analysis used

for this study is referred to as a form of "documentaryfroquency study” which is used to determine the frequency
of occurrence of the studied phenomenon.^

That is, the

sought for information was taken from the contents of the
original school arbitration awards, examined, classified,
tallied, and is presented in Chapter IV of tho study.
The population includes all known school arbitration
awards affecting teachers issuod botweon tho period of the
enactment of Michigan Public Employment Relations Act (here­
inafter referred to as PERA) to tho date of March 1, 1970,
It was estimated that the study would include approximately
fifty such awards.
The documents under examination wore located at tho

*L^Ceorge J. Mouly, The Science of Educational
Research (Mow Yorki American Book Company, 19o3;, pp, 282-

10
East Lansing headquarters of the Michigan Education Associa­
tion (MEA), tho Michigan Association of School Boards (MASB),
and tho Detroit headquarters of the Michigan Federation of
Teachors (I.'FT), AFL-CIO,

Permission was granted to visit

and examine the awards and related data available to those
agencies•
Because a major purpose of the study was to attempt
to discover whether a new common law is emerging in school
employee relations, attention was directed to examining tho
sources of authority cited as bases for arbitra
sions.

djci-

The most common defenses relied upon by tho defending

school districts wore classified and reviowed.

Tho issues

most frequently submitted to arbitration and the outcomes
wore reported.

From tho data a consistent pattern migr.t be

discerned regarding arbitral rulings and rationale.
A secondary purpose of tho study was to discover
information about the process of arbitration in education.
These objectives were developed in question form and cate­
gories were constructed to secure data regarding such diverse
areas asi

time periods, costs, prosenco of briefs, remedies

provided and other related information.
More specific elaboration of the methods and proce­
dures used in the study are found in Chapter III of the
study.
Terminology
Another aspect of tho impact of collective bargaining

11
on education is the necessary assimilation of new terms and
meanings of words•17f Examples of such phrases as “corrective
discipline,H “unfair labor practices," "appropriate unit,"
"impasse," and others are appearing, often for the first
time, in the vocabulary of educators,
Labor-management relations, similar to other areas
of study, has over the years developed a language specifi­
cally designed to better specify the intent of words com­
monly used in personnel practice in the private sector.

As

noted by a compiler of industrial terms*
The growth of job evaluations, time and motion study,
the rapid expansion and development of the collective
bargaininr process, decisions by federal and s+?te
courts, and ‘by arbitrators have been responsible for
the widespread use of technical expression which is
unfamiliar to the layman and occasionally even to the
general practitioner who is not a specialist in any
particular field.1*3 (Emphasis supplied)
Definitions of many terms encountered in review of
the literature attached to the field of arbitration are
found in specialized legal and labor-management dictionaries
as well

as general dictionaries.

Since collective bargaining

has expanded into education, it appears logical to assume
some of those terms and definitions will be borrowed intact
from other fields while new and unique terms may be developed

-^Paul Prasow and Edward Peters, "Semantics of Con­
tract Language," Chapter 5, Arbitration & Collective Bar^aining (I'ew York* Mc-Graw-Hill Book Company, 1970), pp. 60-77•
*|Q
Harold S. Roberts, Roberts* Dictionary of IndusTrial Relations. Bureau of National Affairs (Washington,
D.C. , April, 196? ), foreword.

12
for tho special nuances and subtle meanings peculiar to
education*
A case in point might be the term "manager," which
is most similar perhaps to the term "administrator" used in
education.

These terms are also often used synonymously

with that of "supervisor."

To further compound the problem,

it should be noted that a Michigan Employment Relations
Commission^ ruling makes a further distinction, under col­
lective bargaining for public employees, by distinguishing
between "executives" and other supervisory and administrative
personnel.

20

Suffice to state that definitions of such terms

as "mandatory subjects of bargaining," "appropriate bar­
gaining unit" and other difficult concepts inherent in the
collective bargaining process are beyond the purposes of
this study and could well be tho subject of separate
research.

Therefore, the reader must be alert to the evolv­

ing language as it applies to collective bargaining in
education, bearing in mind that each person encountered in
the field— attorney, teacher, or arbitrator— may use subtle
distinctions for his choice of an apparently common word*
Several examples of such overlap follow*
Arbitration (legal)— "is an arrangement for taking and

■^Formerly referred to as tho Michigan Labor Media­
tion Board, the title was changed in accordance with tho
provisions of Act 181 of tho Michigan Public Acts of 1 9 6 9 .
20Michigan Labor Mediation Board, Case No*
D125 (City of Detroit).

R 67

13
abiding by tho judgment of selected persons in some disputed
manner, instead of carrying it to established tribunal of
justice and is intended to avoid tho formality, the delay,
and expense and vexation of ordering litigation,*'21
Arbitration (legal)— "The submission for determination of
disputed manner provided by law or agreement,"

22

Arbitration (labor-management)--"A procedure whereby parties
unable to agree on a solution to a problem indicate their
willingness to be bound by the decision of a third party."^3
Arbitration (general)— "The hearing and determination of a
case between parties in controversy by a person or persons
2K
chosen by the parties . . . "
The first definition provides the rationale for
arbitration, the second is so brief as to bo unhelpful, the
third definition is precise, while tho fourth definition
does not connote the sweeping authority normally attached
to the term arbitration.

^-^Bouvier's Law Dictionary, edited by Francis Rawle,
1 (Kansas City, Missourii Vernon Law Book Company,
191*0, pp. 225-226.
Vol.

^ Black's Law Dictionary, edited by Henry Campbell
Black (St. Paul, Minnesota* West Publishing Company, 1951 )t
P. 135.
2B
^Roberts, Roberts* Dictionary of Industrial Rela­
tions . p. 2 7 .
2 Ll

V/ebster's Now International Dictionary of the
English Lanruarre. Second Edition unabridged (Springfield,
Mass,* 0, & c. Merrian Company, 1937)* p. 138.

14
Another case in point regarding tho confusion sur­
rounding tho use of torms is evidenced by the definition of
"union” in the Dictionary of Industrial Relations.
Union— sec labor union
Labor Union— In its widest and broadest use a labor
union--is a continuous association of wage earners for
the purpose of maintaining or improving the condition
of their working lives.
In current parlance this would
include the responsibility of acting as the collective
bargaining agent for its members and negotiating the
wafres, hours, and terms and conditions of employment
for them. Unions constitute groups with a common
2 *r
interest and are established to further that interest* ^
In education, the term "union” usually refers to
those groups of employees and their organizations who are
affiliated with the AFL-CIO.

Tho majority of American and

Michigan teachers and their organizations, however, are
affiliated with the National Education Association and
Michigan Education Association and are referred to as
"Association."
It is for these reasons, thorefore, that it is
necessary to define the terms encountered in the study as
perceived by the writer»
Arbitration--that process of settling grievances arising
under the terms of a master agreemont between a teacher
organization and a board of education which provides for a
binding decision by a third party.
Arbitrator— a person designated by the contracting partios

^Roberts, Roberts1 Dictionary of Industrial Rela­
tions. p, 214,

15
to issue a decision binding on both parties regarding tho
final disposition of an alleged grievance.
Bargaining— used interchangeably with Negotiating to denote
the action required of school districts to arrive at a
written agreement with a teacher organization.
Common Law— an unwritten body of opinion based on custom,
usage and agreement over a period of time which is used as
reference for decisions regarding current disputes.
Connany--would be comparablo to School District.
Fact-Finding— used interchangeably with Advisory Arbitration
as a process by which a person upon testimony of both dis­
puting parties, issues non-binding recommendations for
settlement of a grievance or negotiations dispute.
Grievance--an alleged violation of a master agreement or
master contract existing between a particular teacher organi­
zation and the employing school district.
Criovancc Frocoduro--the written procedure contained within
a master agreement which specifies how one or both of tho
parties may appeal alleged violations.
Manager— used interchangeably with Administrator and Super­
visor to denote school employoes with designated authority
to direct the actions of others.
Mediation-—tho process by which a state—appointed person
shall attempt to assist tho contracting parties to reach
agreement but acting only in an advisory capacity.
Other terms which are believed to bo now or which

16
have significantly different meanings will bo clarified as
they are encountered in the body of the study.
Overview of the Study
Tho study is introduced by statements to tho effect
that tho current events of assimilating collective bargaining
into public education are belioved to bo of historical sig­
nificance •
Chapter I contains tho purpose of the study, which
is to gather and prosent information regarding tho results
of four years of Michigan school experience in grievance
arbitration.

A major objective of the study is to deter­

mine whether a new common law in education is emerging from
the body of arbitration experienced in tho school doctor.
A second objective of the study is to gather additional
information concerning the arbitration process, including
such areas as time requirements, formality of proceedings,
and other related information.

The research technique to

be used is that of direct content analysis and is applied to
the total population of arbitration awards from July, 1 9 6 5 *
to March 1, 1 9 7 0 .

Definitions of terms are developed, with

some discussion of the difficulty of studying this area,
since it is affected by overlapping fields of study
involving the legal, management-labor and education proost

ions,
Chapter II is devoted to a review of the litorature.

This chapter is divided into four areas.

Tho first aroa

17
deals with tho general process of arbitration and rationale
for its cxistonco in employee-employer relations.

Tho

second deals with some of the problems which are encountered
when utilizing this process.

The third area discusses some

other implications of the arbitration process upon manage­
ment and concepts of doctrine accepted in tho field.

The

fourth area treats tho legal implications of arbitration
and includes U.S. Uupremo Court decisions and the legal
history of school arbitration in Ilichigan.

Throe school

district appeals of arbitration awards are reported.
In Chapter III the methods and procedures which are
used in the study are explained in detail.

Eleven ques­

tions are posed to assist in tho collection of information
to be determined in the study.

Tho method of analysis con­

sists primarily of classification.

Various classifications

are created and presented as applied to each area of
interest.

Frequencies, totals and median computations are

to bo applied.
Chapter IV proccnts the data which havo been
extracted from the arbitration awards.

Following the pre­

sentation of data, additional observations are presented
which emerge during the treatment of tho data.

A discus­

sion of the findings is included.
Chapter V is devoted to a summary of tho findings.
Conclusions are drawn in rolation to each of tho stated
objectives of tho study.

Finally, recommendations aro

18
made, based on the findings, for tho current parties to
rrievanco arbitration in ISichigan schools, as well as to
future scholars in this area.

Suggestions for additional

research arc offered.
Tho next chapter will present a roviow of tho
literature.

CHAPTER II
REVIEW OF THE LITERATURE
This chapter includes a review of tho literature
dealing with the arbitration process and further clarifica­
tions of terms encountered in the field*

Tho dynamics of

grievance arbitration are noted and the impact on manage­
ment where grievance arbitration exists is reported*
-earch of the literature has included examination of
materials on the general subject of arbitration, personnel
management, and collective negotiations*

Sources include

texts on arbitration and articles in logal, labor and
education publications.

The review of tho literature, while

by no moans exhaustive, is representative of the general
nature of tho grievance arbitration process.
A search of the literature reveals tho subjoct of
grievance arbitration is one which has received considerable
comment and has boon written on widely*

Itfuch of the litera­

ture on the subject has, understandably, been found in
referonco to the private and industrial sotting and only
more recently in the field of public employment or more
specifically in tho school sotting*
Tho roviow is divided into four portions.

Tho first

portion deals with tho arbitration process generally*

19

The

20
second reviews some of* tho problems and issues in arbitra­
tion.

Tho third section explores some of tho implications

of arbitration for both parties•

Tho final portion of this

chapter treats the subject of grievance arbitration from
the legal point of view and includos a brief legal history
of school arbitration in Michigan, as well as identifying
three school arbitration awards which were appealed to tho
Michigan courts.
Finally, it should be noted that R. W. Fleming, an
authority in tho field of arbitration, states*
Grievance is a more complex and sophisticated process
than is generally recognized, and there are a great
mar.y things about it which wo need to study if our
understanding is to be complete.2The Arbitration Process
Tho broad field of arbitration is considered to be
divided into two areas*

1) labor arbitration concerned

with disputes between employees and employers, and 2) com­
mercial arbitration which is concerned with disputes
involving commercial transactions.

Businessmen, to save

time and expense, bypass the courts and adjudicate disputes
through arbitrators.

Commercial arbitrators generally do

not receive compensation, but the sane informal pattern is
followed as in arbitration of labor disputes.

While labor

arbitrators generally write detailod opinions,

commercial

^■R. W. Fleming, The Labor Arbitration Procoss
(Trbana, Illinois * University of Illinois Press, 19^5),
P. 199.

21
arbitrators usually render awards without opinions*

It is

estimated that tho American Arbitration Association (AAA)
ease load broal:s down into roughly 2 5 percent commercial
arbitration cases and 75 percent labor arbitration cases*

2

There arc broadly two categories of labor disputes
which are resolved by tho arbitration process and are
referred to respectively as "contract arbitration" and
"'■riovance arbitration."

A distinction is drawn thusly*

The most significant distinction between con­
tract arbitration and grievance arbitration is that
the latter (alternately referred to as quasi-judicial
arbitration or arbitration of rights) limits the arbi­
trator to interpretation and application of an existing
agreement between the parties, whereas, the former
(alternately referred to as quasi-legislative arbitratration, arbitration of interest or terminal arbitra­
tion) calls upon the arbitrator to create the contract
terns that are to govern the parties* relationship for
the ensuing contract p e r i o d . 3
v.'hile the torn "arbitration" has been defined in
Chapter I, the tern is used in conjunction with several
modifying adjectives, and a clarification may bo helpful to
the reader.

The terns "compulsory arbitration" and "advi­

sory arbitration" are encountered frequently*

"Compulsory

arbitration" is a "legal requirement that a labor dispute
be submitted to a decision which is binding."**'

At tho time

p
Maurice
Cimnons-Boardman

V . Trotta,
Publishing

L a b o r A r b i t r a t i o n (Low
C o rporat i o n , 1961), p.

Yorki

35*

^Malcolm £. Y.'heeler, "Judicial Enforcement of Con­
tract Arbitration Agreements," Ctanford Law Beview. Vol. 21,
Vo. 3 (February, 19&9)* P* 673*
^ " G l o s s a r y o f T e r m s , " The P r o s a n d C o n s o f C o m p u l ­
sory A r b i t r a t i o n ( D e b a t e M a n u a l p u b l i s h e d b y t h o B r o t h e r h o o d
of B a i l r o a d T r a i n m e n , C l e v e l a n d , O h i o , 1965). p • 170.

22
of this study, neither teachers nor school districts in
.'ichigan were loyally required to submit their disputes to
arbitration, but tho public's tolerance of repeated inter­
ruptions of essential public service v/as perhaps becoming
sufficiently low as to make compulsory arbitration a future
possibility.

The term "compulsory arbitration" generally

refers to the making of a contract and not the interpreta­
tion of an existing agreement and therefore is not a sub­
ject of consideration for this study.
The term "advisory arbitration" refers to an arbi­
trator's recommendations which are only advisory to tho
parties,

Neither party has agreed to, nor is obligated to

accept the arbitrator's decision.

An arbitrator, in com­

menting on the effect of advisory grievance arbitration in
a school dispute in another state, termed this process an
"exercise in futility."

ho commentedt

’
./hat about "Advisory Arbitration"? What does it
do? The more kindly disposed among us may say that it
is a stop in tho right direction and that it can pin­
point issues to be resolved at some future date, Tho
undersigned, however, is persuadod that its inherent
shortcomings far outweigh any benefits inuring to par­
ties who would indulge in tho proceeding. Why? The
submitted issues, as in the instant case where tho par­
ties have indicated no intent whatsoever to either
accept or reject the opinion of the arbitrator, are
not settled. Furthermore, tho griovants involved,
having had their day in court, are nonetheless denied

^For an interesting and balanced discussion of this
topic road Robert R. Howlott, Arbitration in tho Public
Rector. (Reprint from proceedings of tho Southwestern Logal
Foundation 15th Annual Institute on Labor Law, Now York*
I-'atthew Bonder A- Company, Inc., 1969).

23
relief*. neither party--winner or losor--is able to
"breath easier," so to speak, because nothing ha3
boon determined.
nothin^ has boon accomplished other than to deepen
frustrations and do violence to the collective bar­
gaining relationship.
So-called "Advisory Arbitration1*
is, in tho opinion of tho undersigned, an exorcise in
futility.
It has tho potential to become, in and of
itself, a part of the problem that final and binding
arbitration is designed to nitigato.®
Tho grievance arbitration procoss is common and
popular in private and industrial labor-managomont practices.
It is estimated that 93 percent of all U.S. collective bar­
gaining agreements contain grievance clauses, that an esti­
mated 3 0 , 0 0 0 labor arbitrations took place in 1 9 6 8 , and that
tho total grows each year.?

It is described as "ono of tho

most effective systems yet developed in the U.S. for sta­
bilizing labor relations."®
Arbitration of grievances has accompanied tho intro­
duction of formal collective bargaining in tho public and
school area.

It is commonly recognized that*

Every good collective bargaining agreement has its
grievance procedure. And in tho 9 0 -odd percent of tho
contracts in tho United utatos today, there are about
100,000 of them altogether, there is a provision as

^Board of Education. Joint Citv School District No.
1. City of^'nuporior. Wisconsin and Superior Federation of
Teachers’! Tontembor . 1969 . (.Reprinted in Mofrotiation
Tosearch Di~est. National Education Asoociation, Vol. 3»
Ho. 5, January, 1970, p. 9.)
7

"Taking the Grief Out of Grievance," Business,
IZeok. Ho. 2062, (‘larch 8, 1 9 6 9 ). p. 78.
aIbid.

zh
the last stop in the griovanco procedure, or the stop
after tho last stop in the grievance procedure, for
the use of arbitration.9
The grievance arbitration appeal process for alleged
violations by tho employer of employoo rights involvesi
• , . systematic union-managemont deliberation of a
complaint at successively higher levels. At any of
those levels the problem may bo settled, and if not,
the complaint may be submitted to an impartial outsido
party whose decision is final and binding.10
The grievance process is said to bo entwined in the
day-to-day relationships between employees and their super­
visors and at the very heart of that continuous relation­
ship,11

Observing that it is only human to disagree, Clark

states that "wise rnanaroment provides the machinery, whatever
it may be, for frank, full and fair consideration and adjust­
ment of all differences, whenever they arise,m1^

This fact

is recognized by modern management and in discussion of this
problem in regard to non-unionized employees, ’.Valter Ronner
of P.ovlon, Inc, advocates that companies provido a board of
neutrals as the final step of company-instituted grievance
9

J. N. 3radcn, "Recurring Probloms in Grievance
Arbitration,” edited by Davis, Gorshenson, et al.« Preparing
and Presenting Grievances. Institute of Industrial Relations,
(Berkeleyi University of California, 1956), pp, 28-29,
(Boston*

"^Wendell French, Tho Personnel management Process
Houghton llifflin Co., 19o^-), p. 375•
11T
V ,
Ibid.
12

York*

Neil Clark, Common Sense in Labor Management (New
Harper and Brothers Publishers, 1919), p. 176.

25
proceduresIt

is stated* "The right to present and have

grievances redressed is fundamental in our socioty,

It

satisfies a vital need,"*^
The final step of appeal to an outside arbitrator
is stated to have advantages for both teachers and super­
visors •
Its primary value to the organization (teachers') is
that tho organization can go beyond the board of educa­
tion for an application and interpretation of a col­
lective agreement without recourse to strikes, sanctions,
or other extreme actions. By tho same token, tho admin­
istration is usually guaranteed uninterrupted service
tho duration of the agreement. Furthermore, tho super­
intendent and his staff may got a much better view of
staff relations at the school level through this pro­
cess, V/ithout grievance arbitration, tho teachers may
be reluctant to voice their dissatisfactions, especially
since tho administrators who are the cause of tho
grievance may SlIs o bo the last court of appeal for
correcting it,15
Another reason advanced for the widespread use of
arbitration in employee relations is that*
The principal characteristic of collective bargaining
agreements is their incompleteness, resulting in part
from the failure of tho parties to foresee or provide
for many future problems, and in part from their ina­
bility to roach real agreement on certain issues which
they do foresee. Consequently, this necessitates and

•^Walter v. Connor, "Handling Grievances of Non­
union Employees," Personnel. Vol. 32, No. 2 (1-larch, April,
1 96 2 ) ,

pp,

56-62,

■^Eavid L, Cole, The Quest for Industrial Peace
(i'Cw York* McGraw-Hill Book Company, Inc •, 1963), p • 77•
^ Educator's Norotiatinrc Sorvice (5NS). Educational
Services Bureau, Washington, D ,C ., February 15» 1968), p, 8.

26
legitimizes the use of arbitration as a necessary and
creative function in completing an agreement
Tho human significance of tho grievance process is
further enlarged by the observation that grievances are tho
expression of deep-seated feelings and that many stem from
perceived or injured feelings* 17f

Still another observation,

following analysis of grievance procedures in school dis­
tricts, led the writer to concludei

"Tho catharsis provided

by the process as well as tho stark existonce of the proce­
dure itself, tend to reduce tho conflict within tho system,
thus resulting in an improvement of tho educational environ­
ment."18
Under tho arbitration process, tho teachers* organi­
zations, if dissatisfied with school district resolution
of a grievance, usually submit a "demand" for arbitration
to the administering agency named in the collective bar­
gaining contract, or, where one is not montioncd, notify
the school district of their desire to submit tho issue to
arbitration as provided in the collective agreement*

In

most school grievance arbitration clauses, the administering
*L6
Clyde V/. Cummers, "Collective A~reomonts and tho
Law of Contracts," The Yale Law Journal. Vol. 78» No* 4
(Larch, 1969), P« 551*
1^Colo, The Quest for Industrial Peace, p* 77*
•^Howard J. Janrich II, "An Analysis and Develop­
ment of Grievance Procedures for Use in the Public Schools,"
(unpublished Doctoral Dissertation, University of Minnesota,
Abstract, quotation found in Dissertation Abstracts Inter­
national, December 30, 1969, Vol. 30, No. 6, 2292-A.)

27
arroncy named has boon a commercial agoncy, the American
Arbitration Association,^
This agoncy operates twenty-two regional offices
throughout the United States and provides for specific pro­
cedures which are then followed by tho partios upon receipt
by that agency of tho “demand" for arbitration.
tho rules includei

20

Briefly,

a written request for arbitration and

notice to tho other party, an answer required of t)"*
defending party, selection of an arbitrator, fixing the time
and place of tho hearing, tho arbitration hearing, and tho
procedure by which tho written award is sent to tho parties
The costs for administration of the procedure are $33,00 to
each party plus additional foos for postponement, ovortimo,
additional hearings or use of AAA conference rooms.
In addition to the AAA, the United States Federal
Mediation and Conciliation Service (FMCS) offers sorvico as
a clearing house for appointing arbitrators upon requost but
does not continuo supervision beyond the appointmont of an

1 9 6 6 porcont of Michigan's school districts having

binding arbitration clausos reported AAA as tho administering
agency in the school year 1967-68, Found at Griovanco Pro­
cedures for Teachers in Rogotiation Agreements, Research
Report 1 9 6 9 - HO, Rational Education Asoociation, (Washing­
ton, B.C., 1 9 6 9 ), p, 1**,
20

The Detroit regional office of AAA is locatod at
Room IO 3 5 , Penobscot Building, Detroit, Michigan, **8226 ,
21 Labor Arbitration Rules. American Arbitration
Association^ 1**0 West 51strStreet, Few York (as amended and
in effect February 1, I 9 6 5 )*

28
arbitrator.

This coordinating service is of no cost to tho

parties, who pay the arbitrator his foe directly.

This

service is available to Michigan school districts at two
locations--a regional office at Chicago for Michigan's Uppor
Peninsula area and a Cleveland area office for service to
parties located in tho lower peninsula of Michigan.
The Michigan Employment Relations Commission also
maintains a list of arbitrators and will, upon request,
arrange arbitration services for tho requesting parties in
a fashion similar to that of the Federal Mediation and Con­
ciliation Service,
During tho first several years of collective bar­
gaining in Michigan school districts, there was confusion
regarding tho role of tho Michigan Employment Relations
Commission in grievance resolution.

This was duo to language

in Act 1 7 6 relating to services of that agoncy for arbitration of grievance disputes arising in tho private sector 22
and Section 7 of Act 336 referring to that agoncy's respon­
sibility to mcdiato grievances,2^

Under tho provisions of

FERA, fact-finding procedures may bo invoked when all
efforts at collective bargaining and mediation have boon
2 2 ^23.9D (17.^5^(10*3)) "Any dispute, othor than a
representation question, may lav/fully be submitted to
voluntary arbitration in tho manner provided in this soction . . . "

2^17.^55(7) Section 7. "Upon tho request of tho
collective bargaining representative . . . it shall bo tho
duty of tho labor mediation board to forthwith mediate tho
grievance . . . "

29
exhausted.

However, on narch

21,

19&9, "tho Commx.sion

established a now policy regarding tho use of grievance
fact-finding.

Because of its explanatory nature, it is

reproduced hero*
STATE OF MICHIGAN
LABOR MEDIATION BOARD
M a r c h 2 1 , 1969

Fact Finding of Grievances - 3oard Policy Statement
r'oction 2 5 of tho Labor Mediation Act, Act, No,
1 7 6 of tho Public Acts of 1939* as amendod, provides
that as a condition to instituting fact finding it
must "become apparent to the Board that nattors in
disagreement between the parties night be more readily
settled if tho facts involved in the disagreement woro
determined and publicly known." Based upon its experi­
ence of the last 4 years, the 3oard finds that in most
cases involving fact findin" of contractual grievances,
the issues are narrowly confined to one or several
employees and arise out of tho application or inter­
pretation of a collective bargaining agreement. Such
cases, which generally are of primary interest only to
tho aggrieved employee and tho employer, are not of
such general public interest as to justify the expen­
diture of public fundsj nor will publicizing tho
facts and recommendations more readily settle tho
dispute.
Therefore, fact finding applications involving
grievances arising out of the application and/or
interpretation of collective bargaining agreements
(ordinances or resolutions incorporating any agree­
ments reached) will no longer be processed by the
Board unless, in tho Board's judgment, publicizing
tho findings of facts and recommendations will more
readily settle tho dispute. Tho burden of proving
compliance with the statutory condition will bo on tho
applicant and fact finding of grievances will bo
authorized only in tho rare and unusual case involving
tho public interest.
In addition to these major sources of arbitrators,
a few school districts have providod for arbitration of
grievances by a locally selected panel of townspeople 1

30
however, those provisions are not common and not of suffi­
cient significance to attempt to identify except as they
arc incorporated in the data presented in Chapter IV •
Arbitrators are selected in several fashions.

In

the largo industries it is most common for tho partios to
select a permanent arbitrator or umpire for a spocifiod
period of time who can provide continuity to the contract
interpretation process.

However* in most other griovance

disputes an arbitrator is selected anew each time the need
for arbitration arises.

Thus the temporary or ad hoc arbi­

trator is seldom the same person.

In an early study of

labor relations in tho public utility fiold, Chamberlain
observedi
With respect to the settlement of grievances arising
under tho contract, arbitration as a final stop is
almost universally accepted. Except for a few depar­
tures from the rule, however, the arbitrator is
appointed at tho tine tho issue is raised, or, while
designated in advance on an a^d hoc basis, A permanent
readily available court of last resort is still not2a
widoly established institution in public utilities.
School grievance arbitration in Michigan has consisted to
date of ad. hoc arbitration, but in Now York City the school
district and union agreed in 1 9 6 2 to a permanent arbitration
panel to provide more stability to the process.2-*
p Ll

Neil Chamberlain, Tho Union Challenge to Manage­
ment Control (Now Yorki Harper and brothers Publishers,
19^8), p. 329.
2 ^Reported by Charles Rhcmus at the National Aca­
demy of Arbitrators Annual Mooting as reported in tho
novornmont Employees Relations Report. Bureau of National
Affairs, Inc., Washington, D.C., No. 18?, March 13* 1967.

31
In brief summary, the literature indicates there are
several forms of arbitration.

It indicates that grievance

arbitration is a widespread and commonly accepted brand of
justice in private employer-employee relations.

Arbitration

serves an important stabilizing function in collective bar­
gaining contracts and is considered the alternative to possi
ble strike action in contract interpretation disputes.

Arbi

trators are selected in several ways* one of the most common
is through the American Arbitration Association.

The most

experienced and largest school system in the nation has
moved from temporary or ad. hoc arbitration to a permanent
arbitration panel.
Some Problems Encountered in Grievance Arbitration
26
Arbitration, despite its long history
and common
acceptance in private employee relations, has problems which
are discussed in the literature.

Despite several of the

problems discussed in this section, it should be noted that
no viable alternative substitute for arbitration has yet
been found for resolving contract disputes and employee
grievances which protects the rights of the two disputing
parties and yet retains its voluntary aspects.
26

Read Chapter One, "Historical Background and Per­
spective," Maurice S, Trotta, Labor Arbitration (New York*
Simmons-Boardman Publishing Corporation, 1961),' and "The
Collective Bargaining Agreement," Paul Prasow and Edward
Peters, Arbitration and Collective Bargaining (New York*
Me-Graw Hill Book Company , 1970) > pp. 1-16.

32
Length of Time Required for Arbitration.— One of tho major
advantages cited in favor of arbitration is that it is
swifter than resolution of alleged broach of contract dis­
putes through the courts.

The 1968 Annual Report of the U.S.

Mediation and Conciliation Service2*^ indicates the total
time between the original request for arbitration and the
receipt of tho award was 141.3 days in 1966, 14?,4 days in
1967 and 157.46 days in 1968.

When days are added for the

total period between the original filing for the grievance
and the request for arbitration, the total time between the
actual filing of an alleged contract violation and date of
award resulted in a grand total of 221.7 days in 1966,
2 2 7 . 7 days in 1967. and 235.42 days in I9 6 8 .

The same

report also indicated the average hearing time remained at
one day but that arbitrators charged a fee based on three
days, which included study tine and travel time.
Davey reports that few arbitrators are actually
able to honor demands for an award and opinion 3° days after
completing an arbitration hearing and he states that throe
to four months is more common and in some instances nearly
a year. 2 8

No information was located regarding the length

of time elapsed in school arbitration awards but it would

^ Federal Mediation and Conciliation Service - 21st
Annual Report. Superintendent of Documents, Washington, D.C.
2 ft

Harold W. Davey, "Restructuring Grievance Arbi­
tration Procedures," Iowa Law Review. Vol. 54, No. 4,
(February 1 9 6 9 ), pp. 560-588.

33
seem reasonable that similar time lag: difficulties might
be experienced in the school sector.
3. W. Fleming reported observing a serious time lag
problem developing in the field of arbitration and a
general belief that undue formalities are taking over tho
process.

He states that the arbitration process,

“once

known for its speedy resolution of disputed matters, now
moves at a ponderous

p a c e . " 2 ^

To compound this problem, it

is reported that arbitration cases are increasing not only
in number, but in importance and complexity as well .-^0
Additionally, the group of arbitrators preferred by the
parties is quite small in relation to the large number of
arbitration cases annually processed. ^
Difficulty of Securing Information.--Despite the widespread
use of grievance arbitration, the process is still con­
sidered a private one and the award the property of the two
disputing parties.

“Arbitration • • . is a single inci­

dent in a continuing relationship— a private service paid
for by its users . " ^ 2
It is estimated that only approximately four percent

2 ^Fleming, The Labor Arbitration Process, p. 5 7 ,

-^"Taking the Grief Out of Grievance," Business
Week, p. 7 8 .
^Trotta, Labor Arbitration, p. 69*
32"Taking the Grief Cut of Grievance,"
Week, p. 82.

Business

3k
of

the

total

number

nublished.-^
appears
tion
fit
seek

obvious,

awards
of

One

by

other

to

reason
that

stated

the

national

understand

are

grievance

tho

and

writer
by

for

this

publication

common

published

arbitration

services

arbitrators

Additionally,
awards

of

is

other

awards

condition

of

written

primarily

problems

in

indicated

a

arbitrators

labor
belief

as

a

is*

"It

arbitra­

for

contracting

are

the

bone-

parties

who

relations•
that

means

the

of

adver­

tising.^
Arbitration
ber

of

years

by

the

Commerce

Clearing

earlier,

is

of

knowledge

have

Bureau

of

:iouse^

incomplete.
of

school

cation

service

Titled

Arbitration

both

awards

was

arbitration

but
In

National
tho

grievance

the

awards

on

for a

Affairs

collection,
of

It/larch 1,

fact-finding

as

noted

importance
a

1970

carries

num­

and the

the

arbitration,

S c h o o l s , it

and

published

recognition

instituted
in

been

now
by

a

publi­

the

AAA.

summary

of

recommendations.-^

•^Brucc C. Hafen, "Labor Arbitration--The Values and
tho Bisks of the Rule of Law," Utah Law Review.Vol. 1967,
No. 2 (May, 1967 , p. 231.
3 ‘4'I b i d .

35Ii>id..
T6
Labor Arbitration R e p o r t s . The Bureau of
A f f a i r s , I n c . , V / a s h i n g t o n , D . C . , V o l u m e s t o 5 2 ,a n d
A r b i t r a t i o n Awards, C o m m e r c e C l e a r i n g House, Inc.,
Illinois t h r o u g h 1969.
•^A r b i t r a t i o n
A s s o c i a t i o n , 1 *4-0 W e s t
(published monthly).

National
Labor
Chicago,

in the S c h o o l s . A m e r i c a n A r b i t r a t i o n
51st Street, N o w York, N.Y., 1 0 0 2 0

35
The cost is $60.00 per year and a subscriber may receive a
complete text of the award he is particularly interested in
by payment of 3 0 cents per page.

This venture is jointly

sponsored by tho National Education Association, American
Federation of Teachers (AFL-CIO), and the National School
Boards Association.

Whether the reports will bo confined

only to awards rendered through the AAA is unclear but if
true, this is another incomplete service.
At the time of this study, attempts to study con­
sistency of approach by arbitrators, recurrent problems in
contract interpretation, and to establish predictability
in the outcome of school arbitration is, of course, seri­
ously hampered by the difficulties in locating such awards
fcr study,
Costs of Arbitration.--There is concern expressed at the
mounting costs of grievance arbitration.-^®

This concern is

most frequently expressed by employee organizations, which
feel at an economic disadvantage in pursuing grievances
QQ
through the arbitration appeal level.
The cost factor
is, however, seen as a means of discouraging the prosecution

-^®Davey, "Restructuring Grievance Arbitration Pro­
cedures," p. 5 6 0 .
39**Takinfr tho Grief Out of Grievance," Business
Week, p. 82.

36
of weak grievances
A review by Fleming itemizes these costs asi

arbi­

trator fees, counsel for the parties, court reporter costs
whore a transcript is requested, the parties* representa­
tives' time for preparation, hearing room rent where
required, service agency foes (AAA), and back pay costs
/l*1
where awards include same, x
Fleming conducted a study of arbitrator foes in 100
selected cases of discharge and found a per diem cost of
4-2
>1 2 9 , 0 0 in 1 9 6 2 ,
The average total arbitrator foo for
all cases studied in that same period was 3375.00.

A more

recent study of total arbitrator fees by the U.S. Mediation
and Conciliation Service revealed tho following average
ccstsi
1968,

3471.76 in 1 9 6 6 , 3 5 2 6 . 0 5 in 1 9 6 7 and $513.12 in
It should bo noted that the most common practice

is for both parties to share the arbitrator's fee,
Fleming pursued tho subject of attorneys' feos and
found from 1 7 5 returns out of 4-00 mailed questionnaires that
the labor union attorneys' average fee was $ 3 1 5 for an
4,0
Benjamin H. Wolf, "Grievance Procedures for School
Employees," Emplover-Bmoloyce Relations in tho Public
Tchools. edited by Robert E. Doherty, Now York State, School
of Industrial and Labor Relations (Ithaca, New York*
Cornell University, 1 9 6 7 ), p. 1 3 8 .
4-1

■‘■Fleming, Tho Labor Arbitration Process, p. 16.

42Ibid.. pp. 38-39.
**3Ibid .. p# 5 0 ,

37
arbitration case while $700 was the average foe for an arbi44
tration case handlod by management attorneys.
The fees
also varied according to tho size of city.
only study located regarding attornoy costs.

This was the
The National

Education Association reported an estimate that legal fees
45
averaged two and one-half times the arbitrator’s fee.
That report also contained information that tho total
expense for a V/arron, Michigan, school arbitration award
cost over $ 3 ,5 0 0 , of which 80 percent was for legal ser­
vices and 20 percent for the arbitrator’s fee and tho arbi­
tration filing f e e . ^

It is not indicated whether this

figure included attorney costs to the school district.
In Fleming’s study in 1962, ho added the three
factors of arbitrator’s fees, attorney foes and costs for
court recorders and arrived at a cost figure of $640 for
the union and $1,02 5 for the company for each arbitration
case
Apparently the cost problem is not new, because
the AAA issued a pamphlet in 1959 which included a series
of tips on how to reduce arbitration costs.

Tips included

4^ Ibid.. p. 46.
^
-ricvance P r o c e d u r e s f o r T e a c h e r s in N e g o t i a t i o n
A g r e e m e n t s ' ! R e s e a r c h R e p o r t 1969 R - 8 , N a t i o n a l E d u c a t i o n
A s s o c i a t i o n , W a s h i n g t o n , D.C., 1969, p » 15*

46
47

Ibid.
Fleming, Tho Labor Arbitration Process, p. 50.

38
in that pamphlet for reducing arbitration costs were*
— move for swift resolution of grievances to reduce
possible back-pay liabilities
— got a schedule of the arbitrator's fees in advance
--secure stipulation of as many facts as possible
— don't order transcripts of the hearing unless
actually needed
--consider dispensing with a written opinion
--don't cite indiscriminate precedents
--avoid questions of arbitrability
— don't ask for postponements
--choose tho arbitrator carefully

48

Tho fact that arbitration of grievances has become
a full-time occupation for some individuals, that arbi­
tration has resulted in the creation of a large commercial
arcncy, and that publishing companies find it profitable
to report arbitration information would indicate that arbi­
tration costs are not insignificant.
It is not unreasonable to assume that a small union
or small school district could be easily discouraged from
protecting its contract rights if costs are considered.
In recognition of this problem, both Michigan teacher
organizations report policies for helping their locals
defray arbitration costs.

The MEA has a policy of reim­

bursing its local associations for arbitration costs by

VJavs to Cut Arbitration Costs. American Arbi­
tration Association,140 West 51st Street, New York,
August, 1959.

39
providing Tor reimbursement of 35 percent of all local arbi­
tration costs up to a maximum of $ 2 5 0 * ^

The President of

the Michigan Federation of Teachers reported that organiza­
tion provided free attorney services to its locals but that
the local unit must pay the arbitrator's feo and any admin­
istrative expenses incurred.
Formality of the Process.--It has been stated that arbi­
trators are becoming excessively f o r m a l . I t

is alleged

that the merits of the dispute often got lost in arguments
over whether a dispute is subject to arbitration in the
first instance as well as, "the form of the grievance,
technical rules as to admissibility of evidence, the use
of precedence, and reliance upon briefs, transcripts and
other proceedings."-’_L
It is true that grievances which are processed to
arbitration are subject to procedural limits sot forth
within the local agreement.

Challenges by the employer

as to time limits, for example, might bo criticized as
technical.

This same criticism, however, might bo

leveled at any written rule, policy or regulation.

It is

also probablo that the strict procedures for arbitration

^ P.N. Report. Office of Professional Negotiation,
Michigan Education Association, East Lansing, Michigan,
Report No. 2-69* March 3, 1 9 6 9 .
50Flomii¥t. Tho Labor Arbitration Process, p. 57.
51 Ibid.

4o
under the auspices of AAA might bo viewed as unduly formal
but are doubtless the results of many years of experience
and designed to provide protection to both parties.

An

example of this formality can bo noted in AAA's Rule 26
of a series of 46 rules governing arbitration proceedings*
Order of prococding--A hearing shall be opened by the
filing of the oath of the Arbitrator whore required,
and by the recording of the place, time, and date of
the Demand and answer, if any, or the Submission.
Exhibits when offered by either party, may be received
in evidence by the Arbitrator. The names and addresses
of all witnesses and exhibits in order receivod shall
be made a part of the record.
The Arbitrator may, in his discretion, vary the normal
procedures under which the initiating party first pre­
sents his claim, but in any case shall afford full and
equal opportunity to all parties for presentation of
relevant proofs.
I
"When the parties use lawyers to present their
cases, insist upon formal procedures at the hearing and
require stenographic records, the arbitrator is forced to
become more legalistic."-*^

"The term legalistic approach

is used to imply strict conformance to rules and procedures
emphasizing the nood by the company to build up a case so
the penalty will stand if challenged, maintaining records

^ Voluntary Labor Arbitration Rules. American
Arbitration Association, 140 West 51st Street, New York (as
amended and in offoct February 1, 1 9 6 5 )*
-^Dallas L. Jones, Arbitration and Industrial Dis­
cipline . Report 14, Bureau of Industrial Relations (Ann
Arbor* The University of Michigan, 1 9 6 1 ), p. 169*

in
and accompanying emphasis on the rulesmu

5J
4,

In a study of 300 arbitration cases regarding the
frequency of the use of attorneys by tho parties, the
following figures wore reported*
Percentage of cases in which counsel were present
for one, both, or noithor party*
Neither

Union only

19^8

50,0

7.5

1956

35.7

5

1965

21.1

7.9

.^

Company only

Both

25,0

17.5

26,8

32.1

35.5

35.5 55

The figures clearly indicate tho increasing use of
attorneys in arbitration proceedings in the cases within the
study, particularly by companies.
The study goes forward and examines tho qualifica­
tions of arbitrators and finds that tho percentage of arbi­
trators with legal training had incroasod from 5 3 percent to
6 6 . 3 percent over tho same period , ^ 6

This supports another

writer's estimate that approximately two-thirds of the arbi­
trators who are members of tho National Academy of Arbitra­
tors are attorneys or have had legal training#5?

.. p. 2 3 3 .
-^Kafen, "A Study of Labor Arbitration--The Values
and tho Risks of tho Rules of Law," p# 23^.
5 6 Ibid.. p. 2 3 3 .

^R o b o r t Coulson, "Labor Arbitration* The Insecure
Profession," Labor Law Journal. Vol. 18, No# 6 , pp. 33°-3^3.

U2
Finally, the study reports that arbitrators who
were attorneys relied more heavily on precedence than did
arbitrators without legal training,^®

It was also reported

that non-attorney arbitrators had increased their reliance
upon precedence over the period studied* 59 Tho author con­
cluded that this phenomenon was likely due to a series of
U.C. Supreme Court decisions issuod in i9 6 0 which will be
discussed in a later section of this chapter*
One suggestion for decreasing the time lag problom
and formality of arbitration is to refrain from filing posthearing briefs . ^ 0

however* it is pointod out that, "if a

party requests tho privilege of filing a post-hearing briof,
it must bo granted, as part of a 'fair hoaring,,, • • • and
that, "many arbitrations are closed without post-hearing
briefs, but they are very desirable if the written statement
prepared for tho arbitrator prior to the hearing was not
full, or in tho light of matters which developed at tho
hearing should bo for any reason supplemented •
The

Value

of

Precedence

in

A r b i t r a t i o n .—

Writing

"^hafon, "A Study of Labor Arbitration 1
and the Risks of the Rules of Law," p. 23*+*

in

1952

in

The Values

^^Ibid.
^Davey, "Restructuring Grievance Arbitration Pro­
cedures," p. 5 7 3 .
Iowat

^Charles Updegraff, Labor Arbitration (Iowa City,
State University of Iowa, 1951 )* P* 17*

^3
tho foreword of a text on arbitration, law Professor Smith
statesi

It is still too oarly to doterminc the full impact
of arbitration on colloctive bargaining. The next
decado should disclose whether tho recorded and pub­
lished decisions of arbitrators have developed some
generalized thinking about collective bargaining prob­
lems which has become an important part of the utilized
knowledge of bargainers and students of tho subjoct.
If experience with other bodies of accumulated know­
ledge is any criterion— and I can think of no valid
reason why tho field of labor rolations should bo sot
apart as an excoption--we are likoly to see just such
a development. Some may view this prospect with alarm
based on a fear of stereotyped thinking and unduo
reverence for precedent.
This attitude seems to mo to
chow a lack of understanding of the judicial process.
It is simply contrary to every canon of progress to
refuse in this field or any other to conserve tho
accumulated wisdom and experience of tho problems as
sound judgment may dictate,
Seventeen years later, it is reported that arbi­
trators have ruled every which way on similar issues, pre­
cedents vary widoly and there is suspicion of ovoromphasis
on "legalisms •

Another writor comments i

Tho precedential value of individual decisions is
slight, partly because arbitrators pay less hood to
precedent than courts do and partly because the great
number of arbitrators means that on any given contro­
versial issue, a variety of differing opinions can be
found, making it very difficult to predict which, if
any, will have an impact on tho goneral trend of deci­
sions, Since there is no formal hierarchy, each
opinion is as significant as any other. ^
Russell A, Smith, "Foreword to First Edition,"
Frank Hlkouri, Mow Arbitration Works. Tho Bureau of National
Affairs, Inc•, Washington, D ,C ,, 1952,
^ " T a ki n g tho Grief Out of Grievance," pp, 78-82,
^ Ju lius G, Gotnan, "Tho Debate Over tho Calibro
of Arbitration* Judge Mays and His Critics," Indiana Law
Journal. Vol. 44-, No, 2 (Winter, 196?), p. 185.

44
In the study oarlier conductod by Hafon, tho author
concluded*

'*As a general observation it appears from the

cases studied that arbitrators are rathor cautious about
exercising discretion beyond the legitimate use of contract
interpretation, persuasive or authoritative precedents, or
pact practice•

The distinctions drawn by tho author

between persuasive and authoritative precedence wore that
tho first was comprised primarily of other arbitration awards
while the latter were defined as court cases and National
Labor Board decisions.

The author observed*

"This suggests

that although arbitrators are more concerned with justi­
fying their decisions by tho 'weight of authority* derived
from general arbitration opinions, they have not yet begun
to treat that authority as binding."^
Rcfercnco is made to the "common law" of arbitra­
tion^ and it is recognized that past arbitration docisions,
while not controlling, are considered by arbitrators in thoir
deliberations.

Tho value of tho parties establishing a per­

manent arbitrator or "umpire" would appear to incroaso
greatly tho predictability in the outcome of arbitration.
However, over-reliance on past precedence is discouraged by
Arthur holdberg, when acting as counsel for the American

^Kafon, "A Study of Labor Arbitration*
and the Risks of tho Rulos of Lav/," p. 3 3 .
66Ibid>. p. 334,
6 7 Ibid..

p. 335.

Tho Values

45
Utcolworkers Union, who stated the problem of arbitration
precedence and predictability as follows*
Hvory case is decided by a particular arbitrator. Every
decision is based on particular facts on specific con­
tract language and on an evaluation by tho arbitrator
of tho arguments made to him by tho persons who happen
to represent tho parties in dispute. All theso factors
are subjoct to variation as botwoen contracts. Con­
tracts change. Past practices vary. Bargaining his­
tory. Tho thinking of the arbitrators differs,. Linos
of argument not put forth in one case but advanced in
another way may well load to a different outcome . , .
Goldberg then quotes from an arbitration award by
P.alph Seward to state the case for precedence which is more
prevalent in labor-managomcnt relationships which maintain
a continuing or permanent arbitrator for a particular indus­
try*
Technically, of course, no prior decision is binding
on tho umpire. His task in ovory case is to decide
the issues presented as fairly and wisely as ho can.
It is obvious, on tho other hand, that one of tho pri­
mary purposes of the umpire system is to aid tho par­
ties in reaching a clear understanding of tho moaning
of the agreement as applied in practice in tho plant.
Holitigation of decided issuos--ropcatod attornpts to
persuade an umpire to change an established inter­
pretation of the contract merely because one side or
tho othor does not like it • • • cannot fail to defeat
this purpose.
Goldberg interpreted this quotation to his steel­
worker clients thusly*

^ Ar thur goldborg, "Introduction,** Steelworkers
Handbook on Arbitration Issues. (United States Steelworkers
of America, Pittsburg, Pa., I960), pp. xxvii-xxviii.
^ R a l p h Seward, Bethlehem Stool Company, Grievance
9266 and 9267.

46
For this reason it is oxtronoly important to know what
arbitrators have said not only undor a particular con­
tract but undor contracts in tho stool industry when
an issue of contract arises in tho grievance procedure.
For the reasons already stated, prior decisions may not
provide tho final answer, or the whole answer, but cer­
tainly thoy arc a factor which should bo considered•
Goldbor^ then lists several clues to his clients on
how to view arbitration awards*

1 ) hoaviost weight should be

riven to prior decisions under the same contract by a per­

manent arbitrator, 2 ) decisions by other arbitrators or
under other contracts have loss weight a;id are loss per­
suasive but aro more so if tho contract claims are the
sane, 3 ) isolated decisions by &d hoc arbitrators are of
loss significanco, and 4) general statements made by an
arbitrator in a different case should bo treated with extra
caution.
It is noted by one writer that both management and
labor keep book on arbitrators* awards and

performance,

thus indicating that both parties aro aware of significant
differences between arbitrators' interpretations as well
as tho importance attached to arbitration awards in their
own industries.
An unusual recognition of tho precedential value of
arbitration is found in the Philadelphia school district
contract, which states*

^°Goldborg, ‘'Introduction,1' p. xxviii.
^Robort Coulson, "Labor Arbitration*
Profession," pp. 3 3 0 -3 4 3 .

Tho Insocuro

^7
The Board agroes that it will apply to all substan­
tially similar situations tho decisions of an arbi­
trator sustaining a griovanco and tho Fodoration
a^roos that it will not brine; or continue, and that
it will not ropresent any onployeo in, any grievance
which is substantially similar to a grievance denied
by a decision of an arbitrator,?z
The definition of "substantially similar" would appoar to
invite arbitration rather than discourago it undor this
language, but tho intent of the parties is obvious.
Because of tho increasing complexity of arbitration,
the AFL-CIC established in 1 9 6 9 an Arbitration Institute at
the University of Illinois to give union representatives
and staff members the special skills necessary to prepare
and present arbitration cases,
To briefly summarize— arbitration, as with any
established institution--has some inherent problems.
Among those which arc recognized are costs, time to com­
pletion, difficulty in securing information and hence dif­
ficulty in predicting outcomes.

The increasing use of

attorneys and resulting "legalism" is identified as ono
area of concorn,

The value of precedence regarding carlior

arbitration decisions is questionable, particularly in ad
hoc arbitration and permanent arbitration panels or "umpires"
aro one way of increasing predictability in an industry or

^"Philadelphia Teacher Contract," reproduced in
government Employees Relations Renort. Bureau of National
Affairs, Inc., Washington, D.C., No, 303» Juno 30, 1 9 6 9 ,
pp. 111-112.
?3afl-CIC Nows, Vol. 13*^9 (December 7 , I 9 6 8 ), p, 1 .

48
occupation.

Although the arbitration process contains

problems, no suitable acceptable alternative has yot been
conceived which adequately protects the disputing parties*
rights and retains the voluntary aspects of conflict reso­
lution.
Other Implications of Arbitration
The Michigan School Board Association has cautioned
against tho use of grievance arbitration and appears to
prefer resolution of contract disputes through tho courts
This reluctance by public employers to embrace grievance
arbitration was noted by MERC chairman and private arbi­
trator Kowlott in a discussion of voluntary arbitration of
interesti
The opposition of public officials to arbitration as
the terminal point in grievance procedure (an "A-B-C”
of labor relations in the private sector), and tho
enthusiasm with which public employees, including pro­
fessionals, have embraced the strike throat, does not
augur well for resolution of collective bargaining
issues by voluntary submission to an arbitrator.'*
Some school boards* resistance to arbitration appears
to bo based on several factors, including tho concept of a
higher authority than a locally elected board, tho unpre­
cedented scope of issues subjoct to arbitration, and tho
potential loss of control over employees.

Attorney Keller,

^Clifford L. Cook, Jr., “From tho Executive
Director's Desk," Michigan Dchool Boards Journal. Vol, XVI,
To. A (June, 19o9). p. 3*
75}i0v/lott, Arbitration in the Public Sector, p. 262.

writing in tho Michigan School Boards Journal, states.
Compulsory arbitration moans a transfer of govern­
mental authority from tho legislative body elected by
tho pooplo to a panel of so-callod exports operating
on a caso-by-caso basis. This alone is enough to con­
demn compulsory arbitration in public employment • , • ,
Turning to another important problom, wo should rocognize that in public education there is a pronounced
trend to control administrative docisions at tho col­
lective bargaining table. Included in this area aro
such vital natters as the selection of administrators,
instructional requirements, curricular development and
change, and teaching methods
In keeping with this concern for a vory broad scope
of bargaining issues subject to arbitral interpretation, it
is stated*

"Once wages, hours, bonofits, and rights aro

established, curriculum and instruction will become tho
next logical areas in which to movo."??

Another writer

commented t
Professional employees, such as teachers, social
workers, and nurses, have become more militant than
ever before, Ko group of organized employees seems to
have learned the art of negotiation faster than tho
professionals, nor has any group been more invontivc
in tactics or in expanding demands. Their organiza­
tions have introduced a significantly new principle in
collective bargaining in the public service*
to have
a substantial voice in policy making.
In tho area of
government in which those professionals aro employed—
especially in social service and education , , . tho
government mission, tho manner of performance of the
mission, and the technical devices used in tho mission

Leonard A, Keller, "Public Collective Bargaining—
A Management view," Michigan School Board Journal. Vol, XVI,
Ko, 7 (September, 1 9 6 9 ), pp, 11-12,
^ L o sl i o J, Bishop,
Collective Negotiation in
Curriculum and Instruction. Association for Supervision and
Curriculum Development, National Education Association,
Washington, D.C., 1967, p.

50
nay bo decided by the organized employees and tho pub­
lic administrator
These concerns recognize tho likely possibility
that arbitrators will be ruling in areas whore they have
had little technical experience but in which they will have
broad contractural authority to render significant decisions
in tho field of oducation.

One writer believes arbitration

means that the ultimate power of government will rost with
tho arbitrator and that "arbitrator will begin to intro­
duce a now common law shaping tho mannor of controlling
management-employee relations•"79
Two points of view exist regarding the scope of
arbitrator authority authorized in the agreement#

One

position advocates the widest possible latitude in tho
definition of a grievance on tho promise that any alleged
grievance which is of sufficient concern to cause an
employee or his organization to file a grievance is suffi­
ciently important to require tho parties, in tho interest
of good personnel relations, to discuss and resolve tho
issue.The

other position would advocate a very strict

and narrow limitation of tho power of tho arbitrator and
tho subjects within the contract subjoct to grievance
Frank Zoidlor, "Public Servants as Organizod
Labor.11 Personnel. Vol. 46. No# 4 (Pontiac. Illinois. Aumist.
19S9), p. £L.
79Ibid.. p. 5 0 .
^°Davis, Gorshonson, ot a l ., "Rocurring Problems in
Grievance Arbitration," p. 23,

51
arbitration*

Grand Rapids, Michigan, attorney Clary

roprcsonts this point of viow and cautions against accept­
ance of griovance arbitration without limiting its
definition,

lie advocates vory careful draftsmanship of

tho arbitration clause and urges that arbitration not bo
used as a substitute for authority of a public official*^
The impact of grievance arbitration upon manage­
ment personnel is believed another significant implication
of grievance arbitration.

One person comments*

Middle management and first lino supervisors aro
no longer free to issue orders as they please* today
they must do so with the contract or agreement con­
stantly in mind. Tho unilateral porogativcs of manage­
ment to discipline or process grievances gives way
when those functions come undor tho contract agree­
ment •82
Another writer sees a loss effective control by lay boards,
a whittling away of discretionary authority of school
boards and a pronounced trend to control administrative
decisions•
Apparently tho more existence of arbitration in a
grievance procoduro has an effect on administrative treat­
ment of employees.

Taylor obsorvos that most managements

81Jack R. Clary, “Pitfalls of Collective Bargaining
in Public Employment," Labor Law Journal. Vol. 18, No. 7
(July, 1967), pp. 406-441.
82Zoidlor, "Public Servants as Organized Labor,"
P. 51.
^ A l a n Rosenthal, "Administrator-Toachor Relations*
harmony or Conflict?", Public Administration Review. Vol.
XXVII, ::o, 2 (Juno, 1 9 6 7 ), pp. 15^-161.

52
arc, by and largo, doing ovcrything in thoir powor to avoid
arbitration and prefer to keep disputes "v/ithin tho family,"

QJ.

Another writer in noting this effect comments that "tho
parties cannot help but bo aware of tho available legal sanc­
tions (enforcement of an arbitration award) and while legal
sanctions aro rarely used, they significantly affect the
relationship in many instances•

(Clarification supplied)

h'oil Chamberlain conducted a study of the impact
of unions upon management control which led him to concludo
that erosion of traditional managerial authority had occurred,
ho further observed that management tends to attompt to proscr a holding the line against union intrusion basod on the
following foars, "The safeguarding of unifiod final authority,
tho discharge of imposed responsibility, protection of
efficiency, lack of union responsibility, inadequacy of
union leadership, suspicion of union motives, and the fear
of a changing economic system,
rianagcmont, which were so inclined, attempted to
carefully define management pcrogativos in this study,

Tho

reader, however, is left with the improssion that such

James h. Taylor, "Preface," Arbitration and Indus­
trial Discipline. Dallas L, Jones, Bureau of Industrial
~
Relations (Ann Arbori The University of Michigan, 1961),
p. vi,
QK
-'Summers, "Collective Agreements and tho Law of
Contracts," p p , 533-53^*
RA
ouChamberlain, Tho Union Ch^llon^o to Management
Control. p. 1 3 9 .

53
attempts aro likely not successful and that tho only foasible approach was to leave tho question up to the collective
bargaining process, since tho issues and relations between
the parties aro constantly evolving .® 7
Private sector arbitration appears to include
emphasis on maintaining industrial discipline and control
of the workors, while this factor does not appear to bo a
major issue in tho public sector.

AAA reports*

"Tho most

significant difference between grievance arbitration in
the public and private sector is that discharge and dis­
cipline cases aro extremely infrequent in tho former*"®®
This is believed to bo due to tho traditional forms of
civil service and tonuro protections given public employoes
against arbitrary discharge.

Disciplinary issues, how­

ever, appear to bo tho single, most frequent issue in
arbitration in tho private sector.®^
Tho implications of tho application of a common
law in arbitration to schools are notod by the Michigan
School Boards Association^ 0 with concern, for it is contrary
to past strict legal intorprotation of public or^jloyer

®7 Ibid.. pp. 156-157.
®‘T ’orris Stono, "Foreword," Arbitration in Public
gap3oyment■ oditcd by Estollo Tracy, American Arbitration
Association, lbo W. 5 1 st Dtroot, Now York, 1 9 6 9 , p. xi.
39
Dale S. Beach, Tho rianagomont of P q o p I o at Work
(low York* N.acnillan Company, 1965)* PP* 564-565.
^°Cook, "From the Executive Director's Desk," p. 3«

5^
rights.

In arbitration common law it is stated that tho

concopt or .just cause is gradually being developed on a
caso-by-caco basis.

"Today there is a growing acceptance

of tho concopt of corrective discipline and also that the
employee should not bo disciplined or discharged oxcopt
for just cause . • .
Tho importance of being familiar with common law
principles in arbitration must bo recognized by omployers*
Tho arbitrator exerts groat influence upon a company's
disciplinary policy. Because ho usually has the powor
to determine the validity of a rule under the con­
tract as well as tho appropriateness of tho penalty,
disciplinary policy must bo shaped to meo±2 tho demands
of arbitration and particular arbitrator.”
A major promise underlying arbitration of contract
grievance as a stabilizing factor in employee relations is
that tho employer may wroak a wrong on tho employee and this
porogativc is uphold.

He nay later bo found guilty of a

contract violation and required to make restitution.

How­

ever, his original right to wroak the wrong is retained.
To wit,
An employee must attempt to comply with tho rules and
performance standards in good faith. Ho must obey
orders, even those ho believes aro incorrect, unless
compliance with an order will ondangor his health or
safety. If he believes ho is being treated unjustly,
ho must use tho grievance procedures and must not
attempt to take mattors into his own hands* i.e., ho
must perform and then griovo.“3
^Kaurico S, Trotta, "Insubordination," Hanagoment
Porconnol Quarterly. Vol. 4, No. 1 (Spring, 1965)# p. 20.
?2Jonos, Arbitration and Industrial Discipline, p. 21.
93ibid.. pp. 17 and 18.

55
Other aspects of conmon law of arbitration apparently
include*

corrective discipline, duo procoss including for­

mal charges, burden of proof for discipline and discharge
rosts with the employer, consistency, a penalty considered
equitable by "just and reasonable men," no cause for action
outside tho workplace, and proof of deliberate disobedionce.

OiL

These can be s t e m tests for a previously unfet­

tered employer.
It has boon reported that grievances aro sometimes
processed by employoe organizations for political purposes,
""nion officers, if they aro responsive to membership pres­
sures, as they must be in a democratic organization, are
forced to represent an individual even at times to tho
extent of taking his case to arbitration when they actually
believe that such actions is not warranted•"95
are advanced for this*

Two reasons

1) tho fact that an individual pays

his dues and is entitled to help from tho union and the
union is obligated to provide it--it is a major function of
a union, and 2) tho fear and known hardship of unenqployraont
prompts members to feelings of sympathy and boliof that an
individual should be given anothor chance.9^

Despite tho

recognition of tho political context in which some griev­
ances aro pursued to arbitration, Jonos concludod

9*j'lbid.. pp. .16-20,.
95ibid.. pp. 1*4-1-165.
p. 141.

56
• although political consideration plays an important
part in the decision to arbitrate some cases, tho dosire to
correct bcliovod injustices is also an important reason for
arbitration.

In fact, it would appear to be tho basic roason

in most instances."^
To capsulo tho literature in this area--Arbitration
of grievances docs restrict management *s right to freely
change conditions of employment.

Tho omployer must be con­

scious of tho rules of tho relationship with employees and
tho fact that an arbitrator has tho authority to provide
justice to tho employee if abuses aro perceived.

Some

school boards aro foarful of the scope of jurisdiction
held by arbitrators over their employoo relationships and
educational mission.

Knowledge of the common law in arbi­

tration is important for management to operate offoctivoly.
Political or tactical reasons may exist for tho pursuit of
an apparently moritloss grievance but in most instancos
nriovancos aro gonorally appeals for correction of alleged
injustices•
Arbitration and tho Law
V/hilo arbitration appears to bo a judicial process
and tho arbitrator a judge, it is actually a form of selfgovernment agrood upon by the contracting parties•

In arbi­

tration tho partios have no right to a jury trial, tho

97lbld.. p. 131.

57
arbitrator is both judge and jury.

In a court of law tho

procedures aro formal and in arbitration may bo quite
informal*

Further, a judge is required to follow precedence

by other judges while tho arbitrator is undor no obligation
to follow precedented opinion by other arbitrators.

In

courts of law thoro is tho opportunity to appeal to higher
levels of tho court system whilo there is no appeal beyond
the arbitrator except in special cases.
Since arbitration may be considered as a form of
self-government undor which both parties resolve their
differences, quostions arise concerning undor what circum­
stances an arbitrator's authority might bo ovorrulod.

What

is tho practice when one of the partios, upon receipt of an
adverse ruling, refuses to comply with the award or oven
to participate in arbitration, where that party beliovos
arbitrator authority is unwarranted?

Those and othor quos­

tions have arisen through tho history of labor arbitration
and tho courts have boon called upon to clarify tho legal
status of labor arbitration.
It should be noted thati
. • • the law does not enter tho picture unless it is
summoned by ono of tho partios. Tho law is available
for the purpose of forcing a party to arbitration when
ho is unwilling to do so, and of forcing tho party to
obey an arbitration which ho is refusing to obligo.
The law is called to tho scone when only ono of tho
partios is dissatisfiod with tho working of tho arbi­
tration process. As long as arbitration and its
results aro voluntarily accopted by tho parties and

58
as long as noithor party resorts to tho courts the law
loaves them strictly a l o n o . 9 8
Tho jurisdiction
solely by tho partios.

tllo arbitrator is determined
"Ko has no right to oxcoed the

powers oxprossly grantod to him.
can bo sot a s i d c . " ^

If exceeded, his award

t\s tnight bo expected, individual col­

lective bargaining agreements vary widely in thoir language
and honco the jurisdiction of tho arbitrator for tho inter­
pretation of tho contract may also vary widely.

The fol­

lowing clause would roprosont a broad jurisdiction*

"Any

differenco or dispute arising botwoon tho district and tho
Association or its members shall bo rosolvod on acccptanco
of tho following grievance procoduro.**

Undor this typo of

clause, tho arbitrator is placed undor few limitations and
may determine practically any matter of dispute between tho
partios
A more restrictive clause might bo*

"The arbitra­

tor is limited to tho interpretation and application of tho
express torms of this Agroomont, and he has no power to
alter, add to, or subtract from or modify any terms of the
arrconont • , •

This typo language may bo overly

restrictive and it is suggostod that a far more effective
98

Paul R . Kays, Labor Arbitration--A Dissenting- Viow
(I:ov; Haven, Conn.*
Yalo University Press, i9^<5), pp. 20-21.
99
■^Trotta, Labor Arbitration, p. 81.
“ “lliiji., p. 8i.

101Ibld.. p. 83.

59
way to limit tho range of arbitrator authority is to state
oxactly which matters he is not to handle.

n no

It should

bo further noted that such attempts to limit the arbi­
trator's authority may well bo for naught because of a
^rowing but unorthodox view that tho arbitrator must not
only consider the language of tho contract but all existing
state and federal law as

wcll.10^

Since tho stato and federal court system hiorarchy
is ultimately subservient to the United States Supreme
Court, it seems desirable at this point of review to look
to that body for information regarding its viow of labor
arbitration.

Particularly is this pertinent if one accepts

Stoibor's analysis of trends in public employee bargaining
and his belief that tho developing trend is to follow
existing laws govorning labor-managemont relations in tho
private sector except for the prohibition against tho
striko

102Ibid.. p. 8^.
103Road the arbitration award by Robert Howlott in
V/arron Consolidated Schools (67-1 ARB & 8228 1 9 6 7 ). Howlott
pursues this reasoning in Simonizing Company (701-ARB QOZk1 9 6 9 ) whore ho concludod limitation on hours of work of
female employoos undor stato law was superseded by tho pro­
visions of federal law, tho Civil Rights Act, and Equal
Protection Clause.
10l+Jack Steibor, "Collective Bargaining in the Public
Sector," p. 6 5 .

60

Important Fodoral Court Decisions
While it is not within the scope of this study to
attempt an analysis of various court decisions regarding
grievance arbitration, it is helpful to briefly note those
which aro considered of particular significance to labor
arbitration.
Tho writers of labor law arbitration commonly view
tho first of a series of significant U.S. Supremo Court
decisions as that of the Lincoln Mills case in 1 9 5 7 * ^ ^
An interpretation of that decision was that the Court
affirmed four basic principles*
1.

That either party could sue in the federal courts
for enforcement of a collective agreement.

2.

That fodoral rather than state law should bo con­
trolling in such suits.

3.

That an agreement to arbitrate disputes is enforce­
able in federal courts under federal law rather
than in state courts undor various state laws.
That tho Norris-LaGuardia Act, which limits the
issuance of injunctions by federal courts in
labor disputes, does not apply to a union's suit
seeking enforcement of an employer's promise to
arbitrate.10&
It should be noted that while this case and othors

considered by tho U.S. Supreme Court deal with issues arising
undor collective bargaining contracts subject to the federal

10^Toxtilo Workers Union v. Lincoln Mills. 353 U.S.

® (1957 ).

106prasOw and Poters, Arbitration and Collective
Bargaining, p. 24-6.

61
Taft-Hartloy Act, the controlling view of that court would
be followed by the state court system where a public
employee bargaining lav/ is basically similar to the federal
law.

Such is the caso in Michigan,
A sorios of three concurrent decisions by tho U.S,

Supremo Court in I960, gonorally referred to as the Trilogy
107
or Stoolworkers Trilogy*1
* r are commonly viewed as tho most

significant for determining tho general attitude of that
court toward tho arbitration process,

Tho following extracts

from those decisions appear to place that body squarely in
favor of encouraging and supporting labor arbitration*
The function of tho court is very limited when tho
parties have agreed to submit all questions of con­
tract interpretation to tho arbitrator. It is con­
fined to ascertaining whether tho party seeking arbi­
tration is making a claim which on its face is governed
by the contract. Whether the moving party is right or
wrong is a question of contract interpretation for tho
arbitrator.
In these circumstances tho moving party
should not be deprived of tho arbitrator's judgment,
when it was his judgment and all that it connotes that
was bargained for.
The courts, therefore, have no business woighing the
merits of tho grievance, considering whether there is
equity in a particular claim, or determining whether
there is particular language in tho written instrument
which will support the claim. The agreement is to sub­
mit all grievances to arbitration, not moroly those
which the court will deem meritorious. The processing
of even frivolous claims may have therapeutic values of
which those who aro not a part of tho plant environment
may be quite unaware.

^United Steelworkers v. American Manufacturing
yQ •. 3 6 3 U.s. 5 6 ^ (1 9 6 0 ;* United Steelworkers v. warrior &
Gulf i.'avi^ation Co.. 3 6 3 U.S. 574 (l960)t United Steelworkers
vt Enterprise Wheel & Car Corp., 363 U.S. 593 (i960).

62
The union claimed in this case that the company had vio­
lated a specific provision of the contract* The com­
pany took the position that it had not violated that
clause* There was* therefore, a dispute between the
parties as to the "meaning, interpretation and applica­
tion" of the collective bargaining agreement. Arbi­
tration should have been ordered. When the judiciary
undertakes to determine tho merits of a grievance under
the guise of interpreting the grievance procedure of
collective bargaining agreements, it usurps a function
which underflthat regime is entrusted to the arbitration
tribunal. °
The above case was brought by the union to compel
arbitration as was the followingi
Courts and arbitration in the context of most commercial
contracts are resorted to because there has been a
breakdown in the working relationship of the partiesi
such resort is the unwanted exception. But the grievance
machinery under a collective bargaining agreement is at
the very heart of tho system of industrial self-govern­
ment. Arbitration is the means of solving the unfore­
seeable by molding a system of private law for all the
problems which may arise and to provide for their solu­
tion in a way which will generally accord with the
varient needs and desires of the parties. The proces­
sing of disputes through the grievance machinery is
usually a vehicle by which meaning and content are
given to the collective bargaining agreement.
Apart from matters that the parties specifically
exclude, all the questions on which the parties dis­
agree must therefore come within the scope of the griev­
ance and arbitration provisions of the collective agree­
ment. The grievance procedure is, in other words, a
part of the continuous collective bargaining process.
It, rather than a strike, is the terminal point of a
disagreement.1^9
Finally, the third of the series dealt with a union,
which after winning a favorable arbitration award,

was com­

pelled to seek court assistance to gain compliance with the
inO

United Steelworkers v. American Manufacturing Co.

109United Steelworkers v. Warrior & Gulf Naviga­
tional Go.

63
award t
The refusal of courts to review the merits of an arbi­
tration award is the proper approach to arbitration
under collective bargaining agreements. The federal
policy of settling labor disputes by arbitration would
be undermined if courts had the final say on the merits
of the awards * . , the arbitrators under these col­
lective agreements are indispensable agencies in a
continuous collective bargaining process* They sit to
settle disputes at the plant level--disputos that
require for their solution knowledge of the custom and
practices of a particular factory or of a particular
industry as reflected in particular agreements*
When an arbitrator is commissioned to interpret and
apply the collective bargaining agreement* he is to
bring his informed judgment to bear in order to reach
a fair solution of a problem.
This is especially true
when it comes to formulating remedies. There the need
is for flexibility in meeting a wide variety of situa­
tions* The draftsmen may never have thought of what
specific remedy should be awarded to meet a particular
contingency. Nevertheless, an arbitrator is confined
to interpretation and application of the collective
bargaining agreement* he does not sit to dispense his
own brand of industrial justice* He may of course look
for guidance from many sources, yet his award is legi­
timate only so long as it draws its essence from the
collective bargaining agreement. When the arbitrator's
words manifest an infidelity to this obligation, courts,
have no choice but to refuse enforcement of the award *
Thus it would appear that tho highest court shows
great reluctance to intervene into what is considered a
private contractual agreement between the parties to settle
their disputes by arbitration.
The Supreme Court also recognized the necessity of
• requiring the parties to exhaust arbitration before seeking
court relief by stating in a later opinion that the

Qorp.

H O United Steelworkors v. Enterprise Wheel & Car

64
individual must attempt the use of the grievance procedure,11*and in that same opinion also recognized the problem of
parallel jurisdiction which creates opportunities for
employers to delay the

implementation of an award.

It is conceivable that a teacher grievance alleging
a disciplinary action by a school district could involve
the filing of an unfair labor practice before the Michigan
Employee Rolations Commission, the submission of a griev­
ance to an arbitrator, recourse to the state or federal
courts for alleged breach of contract or denial of con­
stitutional rights and also referral to the Michigan Tenure
Commission,

The attitude of restraint by the courts iB,

of course, helpful in such a situation.

While no cases

could bo located where the MERC has* ruled on the subject
of parallel jurisdiction, its chairman has indicated a
desire to remain aloof from such questions should that
agency be confronted with the problem,11^

It is not known

what the attitude of the Teacher Tenure Commission might
be if faced with such a hypothetical situation,
Michigan Decisions
In Michigan the question of whether arbitration was
even possible for public employees was raised as an issue

543 (1

wllov & £ons* Inc.. v. Livingston. 3 3 7 U.S.

112Robert 1. Howlott, "State Labor Relations Boards
and Arbitration," Labor Law Journal, Vol. 17, No, 1 (January,
1966), pp. 22-35.

65
in 1 9 6 7 ,

Prior to that time there were no court rulings

and cautious or conservative school districts took the
position that, lacking specific authority, schools were
not legally eligible to enter into arbitration.

Other

school districts took a more liberal position that the
districts had the power to engage in any action not speci­
fically prohibited to them.
At tho request of State Senator Bursley, Michigan
Attorney General Kelley was called upon to answer tho ques­
tion*

"Do Boards of Education have lawful authority to

include in their master contracts with representatives of
their employees a clause calling for compulsory arbitra­
tion."

Tho Attorney General issued an opinion that distncts did not have such authority 113 and thereby created
considerable confusion among the school districts during
the 1 9 6 7 bargaining period.

As noted by labor relations

specialists, the attorney general’s opinion was not clear
on one major point--it did not differentiate between com­
pulsory and voluntary arbitration nor was the usage consis­
tent with the definition in tho practice of industrial rela­
tions

^

■^■^Opinion of tho Michigan Attorney General, No.
^573, May 26, 1 9 6 7 .
H^Gharlos T. Schmidt, Jr., Hyman Parker, and Bob
*°Pas. A Guide to Collective negotiation in Education
(-ocial Science Bureau, Michigan State University, East
Lansing, Michigan, 1 9 6 7 ), p. 1 2 .

66
Compounding tho confusion during this period was a
ruling one month earlier by the Michigan Employment Rela­
tions Commission finding the Oakland County Sheriff's Depart­
ment guilty for refusing to bargain on griovanco arbitration
and striking down that department's argument that grievance
arbitration was illegal.11^

This condition of conflicting

rulings likely contributed to the collective bargaining dif­
ficulties encountered by school districts in tho summer of
1967,
Finally, in October of that same year, Berrien
County Circuit Court handed down a decision specifically
ordering a school district to arbitrate a grievance arising
under a collective bargaining agreement* this repudiated
the earlier opinion of tho Michigan Attorney General.
£mbodiod in the decision by Judge Kerns wore the following
comments *
Unless the law of this state prohibits school dis­
tricts from agreeing to binding arbitration of griev­
ances of their employees undor their collective bar­
gaining agreements tho defendant in this caso is by
the terms of its written contract . . . obligated to
proceed with . . • binding arbitration of tho griev­
ances • • . •
In other matters (contract claims, valuation dis­
putes, insurance claims, etc.) the Michigan legislature
and courts have favored arbitration as an efficient,
fair, and usually inexpensive means to resolve disputes.
The Attorney General's opinion is as to conditions
and rights before tho contract, not after tho contract
itself is voluntarily made.

115Mattcr of Oakland County Sheriff's Department,
GLI'IS Case ho. C-66 F63, April, 1967..

67
Certainly where no law or public policy prohibits
a contract on behalf of public employees containing a
provision for binding arbitration of issues within tho
contract itself, tho contract, like any other contract,
must be enforced by the court•
and,
Having found that tho parties hereto could have
entered a contract providing for binding arbitration
of disputes within the terms of the contract itself and
did so, the prayer of plaintiff for an order directing
defendont to proceed with final and binding arbitration
of tho grievances . . . is granted,
Appeals from Michigan School Arbitration Awards
To date three school districts in Michigan have
initially rofusod to comply with arbitration awards.

These

awards are included in tho population of this study.
In tho Dearborn # 8 school district an arbitrator
sustained teacher grievances rogarding disputes ovor com­
pensation for extra duty and ordorod tho district to pay
twelve teachers monies ranging from $400 to $1 ,2 9 5 , 2 5 for a
117
total amount of $9*029,09,
Following a four-month refu­
sal by tho school district to pay tho award, the Association
sought a court order of summary judgment.

On February 5*

1 9 6 9 , a circuit court judge ordered a partial summary judg­

ment for throe of tho grieving teachers in a total amount
of $3,229 plus five percent (5^) interest from May 27, 1 9 6 8 ,
•l1 ^
■L-LODocision of Circuit Court Judge Kerns, Local 953
^nd Council 55 of AFSCME v. School District of Benton
Harbor,October 12, 1 9 6 7 , Berrien County, Michigan,
11^Dearborn #8 Education Association. AAA #5430 0113
68 (a. David Acofi, I9 6 8 ).
'

63
to date of payment and adjourned the othor pending action
until a later date.1-*-®
In the Flint public school system, a grievance was
filed by tho Association on behalf of 200 community college
teachers who had requested payment for loss of vacation time
when tho school district unilaterally changed the opening
date of school.

Tho arbitrator found for tho teachers and

ordered the school district to pay tho 200 community college
teachors an average sum of 3200 each for a total cost of
$^0,000,

Tho school district appealed tho award to the

Genesee County Circuit Court.

Circuit Court Judge Newblatt

uphold the award, rejected the school district*s contention
the arbitration was illegal and emphasized*
. • • the parties bargained for binding arbitration.
They did not bargain for arbitration subject to judi­
cial review of the findings of the arbitrator . . . .
If the board dislikes it, if it thinks tho arbitrator
was unwise or inept, it cannot complain because "the
board nevertheless received what it bargained for,1-*-?
The third known appeal of an arbitration award in
tho Michigan public schools has occurred in the Flint sub­
urban school district of Carman, whore two grievances were
ruled upon simultaneously by an arbitrator.

Tho teachers

grieved non-compliance with tho collective bargaining
•1"lQ
J,1°S e arbom //8 Education Association v. D o a r b o m
^8 Board of Education^ Civil Action N o , 121191, Circuit
Court Judge, Victor J. Baum, February 5, 1969, Wayne County,
Michigan.
H 9 piint Education Association v. School District
of the Gitv of Flint. Civil Action 1274^ Circuit Court Judgo
Stuart A, Newblatt, 1970, Ccneseo County, Michigan,

69
agreement for not rc-enploying two probationary teachors•
Tho arbitrator split the decision, upholding tho district's
right to terminate the services of one teacher but ordering
the district to offer tho other toachor a contract for the
1 9 6 9 - 7 0 school year, pay the difference between tho amount

the teacher received by teaching in another school district
in 1 9 6 8 and what she would have rightfully rocoivod if
employed at tho Carman district and to pay mileage at the
rate of ten cents a mile for any additional miles she had
to travel to and from work. 120
The district filed a notion to reverse the arbi­
tration award in ionescc County Circuit Court.

There, fol­

lowin'" appearances by both parties, Circuit Court Judge
Baker held for tho district,

121

stating tho arbitrator had

exceeded his authority and citing an Appeals Court ruling"*-22
currently on appeal by the MEA bofore the Michigan Supreme
Court on a similar issue.

Thus tho outcome of this over­

ruling of an arbitrator's award in a Michigan school dis­
trict was not final at this writing.
12 0

vhe Carman Education Association and the Board
of Education of the Carman School district. Flint. Michigan.
AAA h o , 5^30 0 3 1 6 68, (Howard A. Colo, 1 9 6 9 )•
1P1
Carman Education Association and Thomasino
■nlidzich v. Carman School District. Civil Action lb 389,
(circuit Court Judge John V/. Bakor, October 29, 1 9 6 9 ;,
Cenesce County, Michigan.
122Mnnro v. 51k Bat)ids Schools. 17 Mich. Appeal 368.

70
Summary of tho Litorature
This chapter has dealt with a review of the litera­
ture on grievance arbitration both in tho general context
and as it relates to arbitration in the Michigan school dis­
tricts .

It is noted that arbitration is a complex process

involving a number of considerations.
The first area of review contains further defini­
tion of voluntary grievance arbitration as distinguished
from commercial, rights, interest, ad, hoc. advisory, per­
manent, and compulsory arbitration.

Inclusion of grievance

procedures in labor agreements are identified as a necessary
stabilizing factor in the collective bargaining process,
Tho major sources for securing arbitrators are identified
and the American Arbitration Association was reported to bo
the primary source of arbitrators.

During clarification of

the role of tho Michigan Employment Relations Commission in
mediation, fact-finding and arbitration, it was revealed that
agency no longer accepted requests for resolution of griev­
ances arising from existing contracts.
The second portion of the review considers some of
tho problems encountered in tho arbitration process.

Time-

lag difficulties, high costs, excessive formality and tho
ambiguous place of precedence in arbitration are identified.
In 1 9 6 8 tho Federal Mediation and Conciliation Service
reported an average griovance took 2 3 5 days from date of
filing to resolution by an arbitration award.

Only four

71
percont of all grievance arbitration awards issuod are
reported to be published and available for inspection,
making substantial research in this area difficult,

Arthur

ioldberg, when act inf as general counsel for the U.S. Steel­
workers, commented on the subject of arbitration precedence
and recommended highest priority be given to awards in tho
same industry, by tho sane arbitrator under a common con­
tract,

The persuasive value of ^d. hoc arbitration awards

arc questionable*

A figure of $513*12, as the average

arbitrator foe in 1968, is reported but figures for attor­
ney fees, administrative costs and attondent expenses
probably push tho total bill for arbitration much higher.
Other implications of rriovanco arbitration are
discussed in tho third area of review.

Arbitration is

reported to have impact on management freedom, restricting
some freedom previously enjoyed,

Sevoral writers, repre­

senting school board concerns, have commentod regarding
tho usurption of publicly elected authority by private arbi­
trators over a broad scope of bargaining issuos--much broader
than is common in industrial bargaining.

It is reported

that discipline and discharge are the most frequent issues
in industrial arbitration while that is not true for public
sector arbitration,

A common law does exist in arbitration

and includes such concepts as "just cause," requirements
for employee obedience absent danger to health and safety,
and progressive discipline.

72
Tho final portion of this chapter deals with tho
legal aspects of grievance arbitration,

A contrast between

the judicial and arbitral process was presontod and a brief
review of the landmark decisions by tho United States
Supreme Court regarding arbitration was made#

It appears

that courts will enforce arbitration awards and do encour­
age private resolution of collective bargaining contract
disputes,

Tho potential for conflict duo to parallel juris­

dictions with labor agencies and various courts is pointed
out to the reader,
A brief legal history of school arbitration in
Michigan was presented, including tho conflicting opinions
of MF3C and the Attorney General, with final resolution by
a circuit court enforcing tho school district obligation
to arbitrate contract disputes whore an arbitration clauso
is included in their contract.
Finally, three Michigan school district appeals of
arbitration were reported, showing in two instances the
courts had uphold arbitration awards and that, while tho
third court overruled the arbitrator, the issue is unre­
solved because of a similar issue presently before the
state Supreme Court,
Tho next chapter will present the methods and pro­
cedures used in the study.

CHAPTER III
METHODS AND PROCEDURES
This chapter deals with a description of the methods
and procedures used within the study*

It sets forth the

population, sources of data, and the manner in which the
data are compiled*

The objectives of the study are stated

and classifications are developed for determining the
specific relationships to the problems posed*

Finally, the

assumptions and limitations of the study are described.
Procedures
No hypotheses wore generated for this study due to
the early exploratory nature of the study and tho fact that
no cause and offect relationships were expected to be dis1
covered.
The study includes the total population of arbi­
tration awards under examination and therefore sampling
techniques were not used nor were tests of hypotheses
required.

Generalizations to a population other than

those of the study are not to be inferred*
The study utilizes that technique referred to as

^George J. Mouly, The Science of Educational
Research (New York* American Book Company, 1963;, p* 88.

73

7b
direct content analysis,

2

which requires tho establishment

of precise classification, and is in keeping with the
intent of tho study, which was to establish the present
state of grievance arbitration affecting teachers in Michi
gan public schools*

This technique is reported to be of

particular benefit in descriptive studies for use by admin
istrators and of particular value to the field of educa­
tion. ^
The format of the study and reference notation
b
follows that recommended by Turabian, as suggested by the
Michigan State University School for Advanced Graduate
studies.^
Population of the Study and Sources of Data
The sources of data for the study wore comprised
of the original arbitration awards as reported to the two
major teacher organizations in Michigan, and to the Michi­
gan School Boards Association.

A further search was con­

ducted in Michigan newspapers and labor and arbitration
periodicals in the event additional, but unknown, awards

^Walter R. Borg, Educational Research (New York*
David McKay Company, Inc., 1963), pp« 256-260.
^Mouly, The Science of Educational Research, pp.
281 -2 8 2 .
lL

Kate L. Turabian, A Manual for Writers. 3rd Edi­
tion Revised (The University of Chicago P r e s s , 1967)*
^Patricia Fitzpatrick, University Guide to the
Preparation of Theses (School for Advanced Studies,
Michigan State University, East Lansing, 1968).

?5
existed; however, no additional awards were located.
Inquiry was directed to Mr, Hyman Parker, executive
director of tho Michigan Employee Relations Commission, to
determine whether that agency had assigned an arbitrator to
a school grievance dispute and no referrals were reported.
Contact with the Detroit area office of the Federal
Mediation and Conciliation Service resulted in referral to
the Washington, D.C. headquarters.

A written communication

was received from that agency indicating no knowledge of
Michigan public school arbitration awards which had been
administered by that agency.

Copies of arbitration awards

administered by that agency are forwarded from the regional
offices to Washington, D.C., held for one year, and then
forwarded for file storage at Fort Monmouth, New Jersey.
There, the awards arc arranged by file number, making
further search difficult.

This step was considered to be

probably unproductive for purposes of this study.
Inquiry was directod to tho Detroit regional office
of the American Arbitration Association, resulting in a
refusal by that agency to permit examination of their files.
Two reasons were advanced;

first, the awards are filed by

an assigned number so that without prior knowledge of the
number such a search would be difficult in view of the
large volume of awards administered by that agency each
year; secondly, the arbitration awards are considered the
property of the participating parties and could only be

76
released by one of the parties.
Contact was established with Detroit Federation of
Teachers requesting arbitration information and it was
learned no arbitration awards have been rendered affecting
teachers in the Detroit public school system since the
introduction of formal collective bargaining in that dis­
trict.

Mrs. Riorden, DFT president, reported the Detroit

collective bargaining contract does not contain grievance
arbitration except when both parties agree to submit an
issue to arbitration.
Visits wore made to tho East Lansing headquarters
of the Michigan School Boards Association, the East Lansing
headquarters of the Michigan Education Association and to
the Detroit headquarters of the Michigan Federation of
Teachers.

At these offices the arbitration awards in the

files of the organizations were examined and the specific
information sought for tho study was rocorded from each
arbitration award.

Mr. Clifford Cook of the MSBA, Mr.

Thomas Pattorson of tho MEA, and Mr. Henry Linne of the
MFT were the persons contacted who made access to tho infor­
mation for this study possible.
It should be noted that only the MEA had a sys­
tematic policy of filing arbitration awards, duo primarily
to that association's policy of sharing costs with its
local units of grievance arbitration costs.

Therefore

the cost data for arbitrator's fees are limited primarily

77
to school districts where MEA affiliated units were the
representative teacher organization.
The search produced a total of 58 school arbi­
tration awards affecting Michigan teachers, in which 6 5
grievances were involved.

Preliminary examination of the

awards resulted in discarding one award involving the
Pentwator school district because it was concerned with
interest arbitration.

Another award issued for the Oscoda

Area school district was determined to be a non-teaching
employee grievance and was discarded*

Finally, an arbi­

tration award issued in the Royal Oak school district was
not included because it was limited to advisory arbitra­
tion.

A list of tho awards contained in the study,

including tho school district, date of award, grievance
issue, and outcome are contained in Appendix A.

Tho

awards are arranged in chronological order.
Objectives of the Study
As noted in Chapter I, the purpose of tho study
was to explore, investigate, analyzo and describe the
nature of grievance arbitration in tho Michigan public
schools since the enactment of the Michigan public Employeo
Relations Act of 1 9 6 5 *

The objectives of the study were

derived from the search of the literature on grievance
arbitration as revealed in Chapter XI of the study*
Two objectives were identified.

The first was to

attempt to determine whether a now common law arising from

78
rrievance arbitration could bo discerned in tho awards
rendered in the public schools.

Tho second objective was

to secure specific information about the arbitration pro­
cess itsolf from the body of awards.
For purposes of determining tho answor to the first
objective it was considered nocossary to establish which
authorities were relied upon most frequently by arbitrators
in arriving at their decisions.

In addition to the authori­

ties revealed, it was considered necessary to determine the
nature of tho disputes and their outcomes, and the most
common defenses relied upon by school district authorities
for their action prompting tho grievance.

Finally, the

remedy ordered whore a violation was determined by the arbi­
trators would reveal the extent of arbitral authority and
import,
It was assumed that from this information a pattern
could bo discerned as to whether arbitrators ruled with any
decree of consistency on certain classification of disputes
and the general nature of remedies ordered thereof.

Consis­

tent patterns of defense by school district authorities and
their relative successes could also bo oxaminod.

Therefore

data wore extracted from the awards in tho study to answor
the following questions*
1-1.

Which authorities wore relied upon by arbitrators as
basis for decisions they have ronderod in Michigan
public school gricvanco disputes?

79
1-2.

What types of issues wore most often in dispute as
evidenced by their frequency of appearance in arbi­
tration awards?

1-3.

'What wore the outcomes of tho disputed issues?

1-4.

What wore the nature of tho remedies provided by
arbitrators when they decided that a violation of
tho collective bargaining agreement had occurred?

I-5•

What wore tho most common employor arguments raised
in defense of a disputed action?
To secure information regarding the second objective

it appeared appropriate to center upon tho problems identi­
fied in Chapter II to determine their prevalence in school
arbitration.

It was deemed to bo of interest to examine

the actual time periods involved in school arbitration, as
well as costs involved, and the degree of formality attached
to the process.

Additionally, the background of legal

training and oxporience possessed by arbitrators would be
of intorost in the study.

Finally, tho method of selection

of arbitrators would likely reveal the location of informa­
tion for future research, should one or several primary
sources be so indicated.
Therefore, tho data wore examined to answor the
following questions*
II-l.

What were tho time periods involved in resolution of
contract disputes which utilize the arbitration pro­
cess?

80
II-2 •

V/hat wore the costs attached to arbitration of school
grievances?

II-3*

V/hat persons wore being used by tho parties of dis­
pute in presenting their relative positions?

II-4.

How often were writton briefs used in school arbi­
tration proceedings?

II-5*

v/hat procedures were being used for the selection of
an arbitrator by the parties?

II-6.

v/hat was the background and training of the arbitra­
tors?
The classification and analysis of tho data would

proceed in accordance with the objectives stated above and
in answor to the specific questions posed in tho study*
Classification and Analysis of the Data
1-1.

To secure definitive information regarding the

source of authority used as the basis for an arbitral
decision tho following classifications wore created.

Tho

frequency of response would indicate the major authorities
relied upon by arbitrators.

The determination of classi­

fying this area was considered tho most difficult task in
the study.
A - State Statutes and Judicial and Agency Decisions
B - Foderal Statutes and Judicial and Agency Decisions
C - Past Practice in Local School
D - Industrial Arbitration Precedence
E - School Arbitration Precedence

81
F - Contract Language
G - Merits of Instant Case
H - Intent of tho Parties
I - Other
1-2.

To obtain classification of issues submitted to arbi­

tration, the following were created.

The frequency of

occurrence would identify tho most disputed areas and per­
mit reference to tho outcome of the disputes.

The issues

were classified as follows*
A - Leave Benefits
3 - Compensation for Additional Duties
C - Discharge
D - Transfer and Promotion
E - Definition of Working Day
F - Non-reappointment to Non-tenure Position
G - Basic Wages
II - Other
1-3 • The outcome of tho issues submitted to arbitration
wore simply classified as "sustained'* and "denied" to indi­
cate whether tho moving party (employee) was supported in
his grievanco.

The total for outcomes was noted as well as

tho percentage for each issuo clarification.
Tho remedies which were ordered by arbitrators upon
finding a violation had occurred wore classified as follows*
A - Reappointment
B - Back Pay

82
C - Additional Payment
D - Cease and Desist Protested Practice
E - Take Affirmative Action
F - Other
I -5 ,

For purposes of classifying the most common arguments

used by school authorities in defense of a disputed action*
it was anticipated that several defense arguments might bo
raised.

The problem of discerning what appeared to be the

major defense was considered a most difficult process in
tho examination of awards.

Tho following arguments were

anticipated t
A - Past Practice
B - Intent of tho Parties
C - Contract Language
D - Emergency Conditions
E - Non-arbitrablo
F - Othor
It was anticipated that a common dofense might be
that tho issue was not subjoct to arbitration.
To soeuro information regarding tho actual arbitra­
tion process in school arbitration, these categories were
createdi
II-l.

To permit an assessment of the actual time trans­

piring in tho grievance process, it was determined to
ascertain tho longth of time involved from tho original
filing of tho griovanco to the final date of the award.

83
Additionally, it was considered of interest to determine the
length of time from the original filing of a grievance to
date of hearing and tho time period between the hearing
and the final date of award.

Median timos and extreme

ranges wore to be noted.
II-2.

To determine costs of arbitration it was decided to

assemble tho information on file with tho cooporating organ­
izations and present that which was available.
II-3.

To determine tho degree of attorney utilisation by

tho parties, notation was mado in each instance as to
whether the partios* representatives wore attorneys or other­
wise and those instances whore neither party was represented
by an attorney.

Tho frequency of use was to bo reported in

percentage form.
11-^.

The simple presence of writton briefs was indicated

as another aspect of the problem of formality identified in
Chapter II,
II-5.

For determining tho method of solection of arbitra­

tors, tho American Arbitration Association and local deter­
mination were tho categories for separation.
II-6.

To dctomino tho background and training of arbitra­

tors, they were classified as attorneys or non-attorneys.^
In addition their membership in tho National Academy of
£
°Found at Labor Arbitration Cumulative Digest and
Table of Cases. The Bureau of National Affairs, Inc•,
Washington, D.C., 1 9 6 9 , p. H 6 9 .

84
Arbitrators would bo noted to indicate arbitration experi­
ence and professionalism.?
Assumptions and Limitations
The study was based on tho assumption that it con­
tained the total population of all grievance arbitration
awards issued as a result of disputes arising from interpre­
tation and applications of collective bargaining agreements
existing between public school teacher organizations and
their respective employers.

This presumed that all the

awards in tho study would bo known to their respective state
organizations.

The possibility this would not bo true was

considered remote, as only eleven non-affiliatod teacher
bargaining units were reported in the state.®
It was further presumed that tho sought information
would be included in the text of the arbitration awards.
Limitations to this assumption included recognition that
arbitration costs were not included in the awards but
gained from the files of tho Michigan Education Association.
Preliminary examination of several arbitration awards

^Thirty-two members of Michigan residence in
National Arademv of Arbitrators
(Membership lists 1969-70).
2412 Grant Building, Pittsburg, Pennsylvania, 15219*
®Unpublishod Report to MEA Board of Directors,
December 1 0 , 1969* listing those as follow*
North Dearborn
Hoights, Bridgonan, Frankenmuth, Kingston, Mancolona,
Dickenson-Iron County Intermediate, Baldwin Township, Grand
Rapids Junior College, Macomb County Community College,
Oakland University and Schoolcraft Community Collego.

85
revealed they variod in longth and, therefore, comprehen­
siveness in the amount of information contained in the
awards•

As noted in an oarlior study of tho formality of
arbitration, the examination of tho decision making process
is subject to qualification regarding tho true basis for a
decision,

Tho author noted that his study, as this study,

was limited by
, • • the fact that the weights and sources of givon
precedents are not always clear from written opinionsi
that prior cases may be followed or rejoctod without
any indication to that effect in tho written award*
that arbitration decisions aro not necessarily
attempting to conform to tho procedural or substantivo
standards of a common law,9
Kevertheless, the material prosontod hore should further
knowledge of what has occurred in arbitration in the Michi­
gan public schools and promoto a more knowledgeable dis­
cussion of the subjoct.
Summary

This chapter has presented tho methods and proce­
dures used within tho study.

The procedures usod included

classification and analysis of data to provide an empirical
base of information in tho exploration and description of
grievance arbitration in tho Michigan public schools since
onactncnt of PERA.

Tho population of the study includes all

^Hafon, "Labor Arbitration--The Values and tho Risks
of tho Rule of Law," p, 231.

86
known arbitration axvards issuod to March 1, 1970#

The

sources of data are derived from analysis of the arbitration
awards on file at tho two state teacher organizations' headquarierb and at tho headquarters of tho Michigan School
3oards Association.
To accomplish the overall purpose of ejqoloring and
analyzing grievance arbitration in Michigan school districts,
the technique of frequency analysis was used.

Fivo ques­

tions were prepared, the answers to which would clarify
whether a common law was emerging from tho body of arbitra­
tion av/ards under study.

The issues, tho most common

defense of school districts, tho arbitrators' decisions,
tho authorities cited as basis for the decisions and the
remedies ordered wore analyzed.
Six questions wore doveloped to seek additional
information about the arbitration process.

Tho costs, the

longth of time required for arbitration, tho degree of
attorney participation in tho proceedings, tho frequency
of written briefs, and the manner of selecting arbitrators
were sought in those questions.

In addition, tho back­

ground and training of tho arbitrators was to bo determined.
Assumptions and limitations wore listed with atten­
tion directed to tho problem of presenting quantitative
data arising from the decision making process.

It was

assumod tho desirod information would bo contained in the
arbitration awards under examination, although it was

87
anticipated tho quantity of information contained within
tho awards would vary.
Chapter IV prosonts tho findings.

CHAPTER IV
PRESENTATION AND DISCUSSION OF THE FINDINGS
This chapter contains the findings.

The data

extracted from the arbitration awards under study are con­
tained in Appendices B and C of this study.

A listing of

the awards examined in the study is found in Appendix A,
along with the code number assigned to each award for
classification purposes.

It should bo noted that each

award examined did not contain all the information sought
and thereforo attention should be directed to the total
response for each category of findings.
This chapter is divided into four parts.

The first

part presents tho findings determined as necessary far clarifi­
cation of the first objective of the study, while the second
part presents tho findings related to the second objective
of the study.

A third portion of the chapter contains addi­

tional information which emerged during the treatment of
data.

The fourth portion contains a discussion of the

findings•
Ob.iective #1 - A New Common Law
In seeking clarification as to whether a new common
law in education is emerging from the body of arbitration
awards rendered to date in Michigan's public school, five

89
questions were developed.

The questions and the findings

are presented.
Which Authorities Were Relied Upon by Arbi­
trators as Bases for Decision They Have
Rendered in Michigan Public School Griev­
ance Disputes?
From the data contained in Appendix B-l the fol­
lowing table is presented*
TABLE I.--Authority Cited as Basis for Arbitrator* s Decision
Authority and Classification
A.
B.
c.
D.
E.
F.
G.
H.

I.

State Statutes, Judicial and
Agency Decision
Federal Statutes, Judicial and
Agency Decision
Past Practice
Industrial Arbitration Prece­
dence
School Arbitration Precedence
Contract Language
Merits of Instant Case
Intent of the Parties
Other
Total

Number

Percent

0

0

4
7

6.16
10.77

7
0
24
20
2
1

10.77
0
36.92
30.77
3.07
1.5^

65

100.00

The two most common sources of authority used by
arbitrator's were the meaning of local contract language and
the merits of the instant case (67«69?S).

Industrial arbi­

tration precedence accounted for ten percent of the deci­
sions, while no school arbitration precedence were used as
a basis for decisions.

90
No industrial arbitration procedonco was citod for
13 priovance decisions in 1967, 2 of 18 in 1 9 6 8 , 4 of 28 in
1 9 6 8 , and 1 of 6 in 1 9 7 0 resulting: in no reliable pattern

of increased reliance on this source.
What Were the Major Issues Submitted to Arbitration?
From the data containod in Appendix B-2, the fol­
lowing table is presented*
TABLE II.--Issues Submitted to Arbitration
Issues and Classification
A.
3.
n*
D.
E.
F.
G.
u
'-1

Number

Leave Benefits
Compensation for Additional
Duties
Discharge
Transfer and Promotion
Definition of Working Day
Non-reappointment to Non-tenure
Position
Basic Wages
Other
Total

Two of every five arbitrations
dealt with compensation.

Percent

6

9.23

12

3
4
5

18* **6
4,61
6.15
7.69

7
14
1 *+

10.77
21.54
21.54

65

99.99

(Items B and G f40?S])

Over one of every five issues sub­

mitted to arbitration were unanticipated and dealt with such
diverse areas as employment of black teachers, insurance
coverage, letters of reprimand and others.

Leave benefits

(9.2 3 ~S) and failure of districts to reappoint teachers to
non-tenure positions (1 0 .7 7 /S), (generally coaching)

9'1
togethor accounted for one of every five grievances in the
study.
What Were the Outcomes of Disputes Submitted
to Arbitration?
From data contained in Appendix B-2 the following
table is presented*
TABL3 III.--Outcomes of Issues Submitted to Arbitration
Sustained
Issues

A.
n•
c.
D.

£*

e

F.
7

9

ut•
-

and

Classification

Leave Benefits
Compensation for Addi­
tional Duties
Discharge
Transfer and Promotion
Definition of Working
Day
N o n - r e a p p o i n t m e n t to
Non-tenure Position
Basic W ages
Other

Total

Number

Percent

Denied
Number

Percent

3

7.31

3

1 2 .5 0

9
3

3

0
2

1 2 .5 0
0

2

21.95
7.31
4.87

18.33

1

2.44

4

1 6 .6 6

6
10

1

4.16

4

8

14.63
24.39
1 7 .0 ?

6

1 6 .6 6
2 9 .1 6

42

99.97

23

99.97

Teachers were sustained in 42 of 6 5 grievances in
the study or wore 64.4-1 percent successful.

They were most

successful in the areas of compensation for additional
duties, in disputes over basic wages, and whoro teachers were
threatened with discharge or non-reappointment to non-tenure
positions.

School districts were moro successful where

disputes involved the definition of the teachers* working day.

92
What Were the Nature of Remedies Where
Grievances Were Sustained?
From data contained in Appendix B-3, the following
table is presented!
TABLE IV.--Types of Remedies Ordered by Arbitration
Remedies and Classification
A.
B.
C.
D.
i•
F.

Reappointment
Back Pay
Additional Payment
Cease and Desist Protested Practice
Take Affirmative Action
Other
Total

Number

Percent

3
12
15
1
8
4

6.97
27.91
34.88
2.33
18.60
9.30

43 *

99.99

* Partial Award in Denial— Arbitration Code 3 8 .-A
As noted in tables II and III* the most common issues
involved compensation and teachers were generally successful
in these type grievances.

Data in Table IV indicate nearly

two of every three remedies ordered by arbitrators required
either additional payment to teachers or back pay.

The next

most frequent remedy was for arbitrators to order school dis­
tricts to take some type of action, i.e., reposting of an
improperly filled vacancy, sending dismissal notices to
teachers not paying representation fees, or providing a with­
held benefit.

93
What Are the Most Common Defenses Used by
School Districts?
Prom data contained in Appendix B-4 the following
table is presented*
TABLE V.--School District Defenses
Defense Argument
A.
B.
c.
D.
£*■
p.

Past Practice
Intent of the Parties
Contract Language
Emergency Condition
Non-arbitrable
Other
Total

Number

Percent

15
5
15
3

6
21

23.07
7.69
23.07
4.62
9.23
32.31

65

99.99

The most frequent defenses (nearly one-third of the
cases) were not anticipated and included such diverse areas
as management pcrogatives, parallel jurisdiction by another
agency or the merits of the case.

Additionally, heavy reli­

ance was placed on past practice and the language of the
contract.

Examination of the data in Appendix B-4 reveals

that a threshold defense was raised regarding the arbitra­
bility of an issue in 1 9 cases or nearly 3 0 percent of the
grievances in the study.
The relative success of these defenses is found in
the

following

Appendix

B-4

table
and

and

are derived from data found at

Appendix B-2i

94
TABLE V-A.--School District Defenses and Outcomes
Successful
Defense Argument
A.
3.
n»
D.
E.
F.

Past Practice
Intent of the Parties
Contract Language
Emergency Condition
Non-arbitrable
Other
Total

Unsuccessful

Number

Percent

Number

Percent

4

17.39
4.35
34.78

11

26.19
9.52

8 .7 0

1
2

1
8
2

4
7

1 6 .6 6
2 .3 8

4

17.39
17.39

17

4.76
40.48

23

1 0 0 .0 0

42

99.99

The most common defense, which included management
porogatives, parallel jurisdictions or the merits of the case
proved to be the least successful.

Heavy reliance on past

practice was also relatively unsuccessful.

When school dis­

tricts argued the meaning of the contract language, used
emergency conditions, or raised the issue of whether a
grievance was arbitrable, they wero more successful.
Objective &2 - Additional Information
About the Arbitration Process
In socking further clarification regarding the arbi­
tration process, six quostions were developed.
and the findings are presented.

The questions

95
What Arc the Time Periods Involved in Resolution
of Contract Disputes Which Utilize the Arbi­
tration Process?
From the data contained in Appendices C-l and C-l-A
the following tables are presentedi
TABLE VI-A.--Time 3etween Filing of Grievance
and Arbitration Hearing

Days
0- 99
100-199

200-299

300-399
400-499
500- Up
Total

Number

Percent
of Total

6
10
11
1
0
1

20.69
34.48
27.93
3.^5

29

1 0 0 .0 0

0 ,0 0

3.^5

Actual Median - 184 days
Range - High - 549 days
Low
3 days
TABLE VI-3.--Time Between Arbitration Hearing
and1 Awards
Days
0 - 29
3 0 - 59
6 0 - 89

90-119
120-149
150-179
180- Up
Total

Number
20

19
6
2
0
1
1

49

Percent
of Total
40.82
38.77
12.24
4.08
0 .0 0

2.04
2.04
99.99

96
Actual Median - 36 days
Range - High - 228 dayr
Low
6 days
TA3LE VI-C.--Total Time Required Between
Filing of Grievances and the Issuing of the
Arbitration Award

Days
0 - 99

Number

Percent
of Total

200-299

3
15

16

7 *50
37.50
40.00

300-399
400-499
5 0 0 - Up

4
1
1

1 0 .0 0
2 .5 0
2 .5 0

40

1 0 0 ,0 0

100-199

Total

Median
- 212.5 days
Range - High - 586 days
Low - 47 days
Aside from two unusually long instances, the pursu­
ance of contract grievances reachos the arbitration hearing
stage in loss than 300 days in 9 3 * 0 percent of the cases
studied.

Following the arbitration hearing, an award was

issued within 90 days in 91 porcont of the cases.

The total

time taken from the original date of filing a grievance to
final decision had a mean time of 2 1 2 . 5 days, but over 5
porcont of the grievances in the study required longer than
a calendar year to receive a decision.

97
What A r c the Costs A t t a c h e d
of School Grievances?

From
tables

were

data

contained

0-$199
200- 399
^00- 599
6 0 0 - 799
800- 999
1000- U p

1
10
12
3

Total

approximately

the

arbitrators'

ever,

one

of

following

Fees

and

Expenses

ten

Percent
of Total

3.^5
3^.48
^1.38
10.3^

2

6 .8 9

1

3.45

29

99.99

80

percent

fees

of

were

arbitrations

the

less

the

arbitrations

than

foes

and

$ 6 0 0 .0 0 i h o w ­
expenses

$800.00.
It

were

the

- $
^50.00
- $1,533*00
150.00

studied

ber

C-2

Humber
of Awards

Actual Median
Range - High
Low

exceeded

Appendix

VII-A.— Arbitrator

Costs

in

Arbitration

constructed*

TABLE

In

in

to

must

of r e s p o n s e s
foes

affiliated

of

be

noted

was

MEA.

a

available

attorneys

with

that

employed

very
and
by

small

all

but

teacher

and

limited

one

of

num­

these

organizations

98
TABLE VII-B.--Attorney Foes and Expenses
Number
of Cases

Costs
0 -$
500-

1,0001 ,5 0 0 -

2,0002,500-

499

999
1,499
1,999
2,1-99
Up

Total

Percent
of Total

3
2 *
2
0
1
1

33.33
22.22
22.22
0.00
11.11
11.11

9

99.99

(* Including a school district attorney foe)
Actual Median - 15 925*00
Ransre - High - $2,812.50
Low
- $ 111.83
What Persons Are Being Used by the Parties to
Present Their Cases to an Arbitrator? How
Often Are Written Briefs Mentioned in the
Arbitration Proceedings?
From data contained in Appendix C-3 the following
tables were constructedi
TABLE VIII-A.--School District Representatives
in Arbitration Proceedings
Party
Attornoy
Consultant
District Employee
Total

Numbor

Percent

42
8
7

73.68
14.03
12.28

57

99.99

99
VIII-B,— Teacher Organizations* Repre­
sentatives in Arbitration Proceedings
TABLE

Party
Attorney
State Representative
Local Officers
Total

Number

Percent

25
20
12

i+3.86
25.08

57

99.99

2 1 ,0 5

TABLE VUI-C .— Attorney Representation in Arbitration
Proceedings

Neither

School
Districts
Only

13

19

Number
Percent

22.81

33.32

Teachers
Only
2
3.51

Both
23
^0.35

Total
57
100.OC

In three of* four arbitration proceedings, school
districts are represented by attorneys while teachers rely
on their own officers and staff in more than half of the
arbitrations.

Both parties wore represented by attorneys

in i+o porcont of the cases studiod, but in one of five
instances neither side used attorneys to present their
cases.
From Appendix C-3 it was noted that in 30 arbitra­
tions, or over half of those included in the study, briefs
were written and filed by the parties,

100

What Procedures Are Being Used for the Selection
by the Parties of an Arbitrator?
From data contained in Appendix C-4 the following
table was constructed*
TABLE IX.--Selection Procedures for Arbitrators
Selection
American Arbitration Association
Federal Mediation and Conciliation
Service
Michigan Employment Relations
Commission
Local Selection by the Partios
Total

Number

Percent

38

65.52

1

1.72

1
18

1.72
31.0^

58

99.99

Nearly two of every three arbitrators included in
the study were selected through the American Arbitration
Association, while the balance were generally selected by
the local parties.

Governmental agencies supplied a neglig­

ible number of arbitrators•
What Are the Backgrounds and Training of the
Arbitrators?
From data contained in Appendix C-^- the following
tables were constructedi

101

TABLE X-A.— Grievance Decided by Arbitrators
with Legal Training
Arbitrator

Number

Percent

Attorneys

42

70.00

.s'on -a 11 om o y s

18

3 0 .0 0

Total

60

100.00

TABLE X-3.--Grievances Decided by Members of
the National Academy of Arbitrators
Number

Percont

Member

48

73.84

I'on-member

17

26.15

65

99.99

Arbitrator

Total

Seven of ten arbitrators had legal training in their
background and nearly three of four arbitrators wore experi­
enced and professional as indicated by their membership in
the

ational Academy of Arbitrators.
Additional Findings Embodied in Arbitrator Language
This section contains language and additional

findings which were encountered in the examination of the
data.

One area of special intorost, which emerged during

the study, dealt with the perceptions of the arbitrators as

102

they began to practice* their profession in the public
schools.

With an obvious sense of history the first known

arbitration was described as follows*
Warren 2/12/67

(Robert C. Howlett)

This is, I believe, the first arbitration between a
Board of Education and the exclusive representatives of
Board of Education omployoos since the enactment of the
Public Employment Relations Act which becamo offectivo
July 23, 1968* The arbitration was conducted under the
rules of the American Arbitration Association, and a
hearing was held at the Association offices in Detroit,
Both parties were represented by highly competent
counsel, each of whom presented oxcollent opening state­
ments and post-hearing briefs. In this instance, con­
trary to some arbitration which I have hoard, I believe
a l l relevant testimony was produced at the hearing* and
a l l arminents, both logal and evidentiary, presented to
the arbitrator.
As noted earlier, grievance arbitration has been
resisted by some school authorities and their arguments
might well be contained in the commonts by an arbitrator who
was confronted with such resistance*
Evart 10/20/68

(E* J, Forsythe)

The Board cites the contract languago as calling for
attempting to mutually agree on an arbitrator before
involving the assistance of the American Arbitration
Association for two reasons* First, arbitration in
public education is new. Consequently, says the Board,
the American Arbitration Association has no panel of
experienced public education arbitrators* The Board
says all it can provide is a list of industrial arbi­
trators, Secondly, the Board argues that the Contract
between the parties has dovised a gricvanco procedure
which makes it possible for the parties to first
attempt to find a man knowledgeable in school affairs—
recognizing that this might not always be possible, the
parties thon have provided for resort to the American
Arbitration Association as a "last resort," The Board
-ays "a prime reason for the parties to mutually agree
o n a n arbitrator was to offer some protection to the
B o a r d over who would interpret their contract.

103

The Board complains of the expense of the American
Arbitration Association with its filing fee, a fee for
each postponement, and the matter of the arbitrator’s
fee. The Board counsel says he knows of sovoral
instances where the parties were able to secure the
services of a qualified local citizen or area resident
who was willing to assume the responsibilities and
obligations of tho arbitrator as a public service to
the community— with no cost involved.
The Board argues that tho Association made abso­
lutely no attempt to mutually select an arbitrator
before invoking tho American Arbitration proceedings,
. . . In this case tho Board of Education is requesting
outright dismissal of the grievance. It argues enough
tine and effort have already been spent on this matter.
It argues that among the reasons for dismissing tho
grievance in the present case include tho fact that
collective bargaining is now in public education* there­
fore, tho viability of the entire griovanco procedure,
the very heart of the Agroemont, is at stake, (pp# 9 and
10 )
An economics profossor at the University of Michi­
gan, while acting as the first arbitrator in a local school
system, commented on the impact of arbitration on typical
school practices and appears to show groat perception to the
problems posed*
rccnville II/9 / 6 7

(William Haber)

V.'hile this agroemont is between the 3oard of Education
functioning under public law, and tho Association of
Teachers, its provisions are essentially similar to
those which have characterized collective bargaining
contracts in non-teaching activities for more than
half a century. The Board has statutory obligations
under tho Michigan law. It has, however, tho authority
to make a contract with the Troonvillo Education Asso­
ciation, and agrees in Article XIV ;co carry out its
le^al functions and its reserved rights in such a
manner "that no action shall violate any of the
expressed terms of the Agreement," This Arbitrator,
a member of the teaching profession, recognized that
an agreement between a toachors* association and a
school board, a relatively new development in our
country, dramatically changes tho relationship between

104
the teacher and the school authorities. The adjustment
will not bo easy.
It will require patience and under­
standing on tho part of* both parties if the strain and
tension often associated with collective bargaining
relationships are to be avoided.
It is clear that in
making such a contract, the School Board has undertaken
to treat, by consultation, negotiation, and mutual
agreement, many matters which heretofore it could have
decided unilaterally.
The problem of parallel jurisdiction with other laws
and authorities was recognizod by ono arbitrator who com­
mented i
'.'('aterford 3/1/6?

(Robert C . Kowlott)

I recognize that in interpreting tho contract, it has
been necessary to consider tho Public Employment Rela­
tions Act, the Tenure of Teachors Act, and the 1955
School Code in order to render an intelligent decision.
Another arbitrator was faced with arbitrating an
issue which was at that very time boforo tho Michigan Court
of Appeals and stated his position thuslyi
Touthgate 4/29/69

(Leon J* Herman)

This award is in no way to be considered as a predeter­
mination or infringement of any court or Labor Depart­
ment proceeding, finding or judgment , , • in explana­
tion of the forot
going decision I wish to state that £
make at this tine no decision as to the validity or
logalitv of tho agency shon -provisions, Tho matter is
now ponding before tho courts and tho State Labor Board,
Their decisions would in any event have superior author­
ity, My rolo here is simply to interpret the contract
as tho parties intendod it. (femnhasis sunnlled)
In most instancos tho issue was rather clearly and
succinctly stated by tho arbitrator, for oxamplei
Lincoln Park 4/6/69

(Harry N, Casselman)

Was tho appointment on October 2, 1 9 6 7 , of tho Varsity
baseball Coach, Thomas Holand, by the Lincoln Park
3oard of Education for tho school year 19 6 7 - 6 8 invalid

105
under Article VII of tho collective bargaining agree­
ment of the parties? If so, what Is the proper remedy?
However, the very question of whether an issue was
arbitrable appeared in several instances and in three awards
in the study it was tho solo issue.

Tho question of arbi­

trability mi^ht bo posed as was tho followingi
harper Crook 5/27/69
1.

(Harry N. Casselman)

Is tho grievance of John Wachsmuth, filed February
1 3 i 1 9 6 8 , arbitrable under tho provisions of the

contract?
2.

Did tho School Board violate tho agroemont of tho
parties by failing to provide Blue Cross-Bluo Shiold
health insurance for the period botwoon October 21,
1 9 6 7 and November 10, 1 9 6 7 ?

Answer in tho same case t
1.

The grievance of John Wachsmuth filed February 13»
1963, is not arbitrable because his grievance was
not filed within ten days of the occurrence of tho
events constituting the grievance as specified in
Article IV c of tho Agreement of the parties.

2.

Jince tho grievance is not arbitrable tho merits of
the grievance is not reached.
If the issue is found to be arbitrable then tho

arbitration moves to discussion and decision of tho main
issue.

How another timeliness argument was handled is shown

here t
Lincoln Park 9/6/68

(Robert S, Rosonfiold)

The Employer suggests tho grievance is untimely because
it was not filed within 2 0 days of the day griovant
signed his contract. This suggestion is basod upon
Article XV of the contract which requires that a griev­
ance bo brought to tho attention of tho School Board
not later than 2 0 working school days after the event
or occurrence which is the basis of the alleged griev­
ance. This suggestion is without merit. Since a wage

1C6
dispute continues in effect each time the grievant
receives what ho claims to be an erroneous rate of pay,
his grievance is not untimely oven though it was not
filed within tho 20 day period referred to.
The effectiveness of this argument, when raisod, in
blocking resolution of the disputo is recognizod by arbi­
trators t
Chippewa Valley 6/2/68

(M. David Keefe)

In this case, both sides resorted to technical objec­
tions which, if upheld, would either have prevented any
hearing at all or would have effectively prevented tho
arbitrator from making any decision without risk of
exceeding his authority.
It is a legitimate argument and must be treated
where raisod.

Tho comments by this experienced arbitrator

help clarify this area*
Lakeviow (Battle Creek)

8/8/68

(Harry N. Casselman)

V/o must first determine tho threshold question of arbi­
trability. It is always a pertinent inquiry unless
waived expressly or by conduct constituting proper
rrounds for estoppel . . . My own 'iow is that unloss
a court has passed on arbitrability affirmatively, tho
issue is necessarily before tho arbitrator and that
this may bo true oven in cases whore a court has ordorod
arbitration, since implicitly tho jurisdictional issuod
may have deferred to the arbitrator by tho court on tho
theory that his "greator experience" in labor relations
issues was bargained for by tho parties•
Further examination of the arbitration awards leaves
unclear whether the burden of proof rests on tho School
Board or the teachers* organization.

Examples of two points

of view wore found*
Birmingham 3/15/6?

(David G. Hoilbrun)

Gincc the Association is the moving party in these
grievances it is tho Board, its administrative personnel,
and their techniques, which are to be scrutinized.

Bloomfield Hills I/27/69

(Harry N. Cassolman)

Tho BHEA as proponent of tho grievance has tho burdon
of proving that tho Board violated tho agreement of the
parties as alleged.
It is apparent that tho burden of proof rests
squarely with tho School District when it attempts to disci­
pline or discharge teachers as notod in tho language of tho
following two opinions*
V»'arren 5/25/63

(Richard Kittenthal)

The School Board removed Novak from his position in tho
mistaken but good faith belief that it had complete and
unfotterod discretion with respect to extra-curricular
coaching assignments , • .
There is another serious flaw in the School Board’s
case. James maintains that Novak's performance as Head
Football Coach grow progressively worse botwoon 1 9 6 ^
and November 1 9 6 6 • . .
*0 issued some memoranda to Novak, complaining about his
failure to take proper care of tho equipment, his failure
to attend league meetings, and so on.
Ho spoke to him
a b o u t s o m e other matters. But not onco in this entire
p e r i o d d i d h e apprise Novak that ho was dissatisfied
w i t h h i s overall performance or warn Novak that ho
w o u l d r e c o m m e n d h i s dismissal if no improvement took
place.
Novak was never really put on notice that he
w a s in danger of losing his coaching position*
Ho was
n e v e r made aware that he had to perform his work bettor
i n o r d e r to retain his coaching position.
Such notice,
s u c h advance warning, is an essential ingredient in any
fair disciplinary procodure.

School Board concodes that the removal of Novak
Football Coach was "disciplinary action.*'
Because most of the charges against him have not been
borne out by the evidence and because tho School Board
failed to provide him with any notico of tho need for
improvement, I find that tho discipline was neither
"fair" nor "for just cause."

as

Carman

The
Head

(Flint) 1/31/69

(Howard A. Cole)

the question of whether there is just cause for the
considered action against Mrs. _____ tho Board must bo
On

108
hold to have tho burden of proof • • • tho arbitrator
has found in tho record a substantial amount of the
ovidonco against Mrs.
to be either trivial in
nature or without probative value . . . But he has
also found sufficient probative and significant evi­
dence to establish that Mrs. _____ was guilty of lacking
tact in dealing with her follow teachers, and (more
inportantly) improper attitudes toward the Principal,
to the extent that hor discharge was justified.
(pp* 9
and 16)
The flexibility and speed of tho arbitration process
emerged in tho unusual instance whore one school district
changed the opening date of school in violation of tho
agreement with its toachors.

Recognizing tho dislocation

which night result from ordering a further change in the
opening date, the arbitrator permitted tho district to pro­
ceed but its violation cost the district an estimated $^-0,000.
Tho award was wired four days following the hearing.
Flint 8/2V 6 8

(M • David Keefe)

Jorc it not for the fact that consideration of this
case cane before tho Arbitrator too lato to avoid pub­
lic confusion through 11th hour postponement (and
becauso the Association provided alternate proposals
for relief, based on not disrupting tho schcdulod
opening), the Arbitrator as the observer of a bargained
agreement on this starting date, would have been forcod
to rule that the opening date of August 26, 1968 should
bo sot aside and put back to Septonbor 3* the day after
tho Labor Day holiday.
The personal attitudes of arbitrators are apparent
factors in at least some of their decisions.

Direct con­

tradiction is found in two arbitration decisions regarding
whether teachers should receive extra salary credit for
college credits which havo little to do with toachor prepara­
tion .

109
In Lake Orion (5/l^/69) Arbibrator Whiting dis­
cussed tho issue and observed that one of the prime reasons
for salary schedules based upon educational attainment is
to encourage teachers to continue their studies and thereby
improve their teaching capabilities.

He found the district

had failed to be specific in tho requirements for salary
crodits for college credits and awarded the grioving teacher
salary credit for 33 hours of college credit taken in a
college of nursing between 1951 and 195^*
In the Lincoln Park school district, a similar dis­
pute was resolved against tho teacher and tho award con­
tained this languagei
Lincoln Park 9/6/68

(Robert S. Rosonfield)

. . . tho hours wore incidental prior to time grievant
determined to become a teacher. To adopt tho Union*s
(Association’s) view would penalize tho student who
comes to the teaching profession aftor straight forward
completion of tho minimal educational requirements for
certification as compared to tho student who is uncer­
tain of his desires and comes to tho profession after
meandering through a number of surplus college crodits,
15 of which tho Union now claims would entitle such a
student to a higher starting rate of pay.
(Clarifica­
tion supplied)
Another observation in a study of the awards indi­
cated that arbitrators, at times, retain jurisdiction of an
issuc--particularly in back pay awards.
Warren 2/16/6?

An examplet

(Robert G. Howlott)

I reserve jurisdiction to determine tho amount duo to
each of tho teachers entitled to salaries in excess to
the salaries received during tho 1966-6? school year
in tho event tho parties are unablo to mako such deter­
mination.

110
Still another and very significant indication of an
arbitrator's attitudes toward what constitutes proper teacher
behavior includes an instance whore two community college
probationary teachers wero denied full contract status and
among tho reasons stated by administrators was that they
had signed anti-war posters carrying the statement "F___
War."
Schoolcraft

Community College 8/22/69

(Loon J. Herman)

There is no reason to assume that a probationary teacher
should be bound by a higher standard of conduct than a
full status teacher. Both are instructors of the same
students and both are expected to meet cortain standards
as to personal conduct.
I an not altogether satisfied that tho complaints against
tho Gricvants should bo removed from their files.
I
believe it is as least poor taste and a demonstration
o f poor judgnont indicating a lapse of professional
integrity for a school teacher to sign a poster such as
this in tho school building at tho behest of a student
o f tho school.
Tho languago used may bo in current usage
among tho younger generation, but it is not the typo of
l a n g u a g e which should
be fostered in common usage by tho
teachers in tho school, who are expoctod to demonstrate
b y their own acts and speech a higher standard of
behavior and a disapproval of vulgarity.
I do not dis­
approve o f tho sentiment expressed in tho poster, nor
w o u l d I disapprove of tho language wore it not for its
use by a teacher in a public school.

tho contention that Gricvants
I a n n o t impressed b y
should bo free of condemnation because they acted as
c i t i z e n s a n d not as teachers • • • * Thoir rights as
c i t i z e n s m u s t bo respected, but their conduct as teachers
as it affects thoir school is subject to managerial con­
trol ,

Other arbitration concepts oncountorod for tho first
tine

Buena

in

schools

included*

ista 2 / 7 / 7 0

(Harry N. Cassolman)

Ill
Furthermoret in arriving at the parties* intent. it is
a cardinal rule of construction that an instrument is
most strictly construetod against tho author of tho
document. It is therefore incumbent on the representatives of the School Board to choose language in the
memorandum which objectively demonstrated thoir subjec­
tive intent, or bo bound by tho implication flowing
from tho language chosen.
(Emphasis suppliod)
Flint

8/2U r / 6 3

(M.

David Keefe)

Board has regarded that the managements* rights
clause relieves it of the duty of (the) following past
practice. As a mandatory subject of bargaining, deter­
mination o f school calendars is clearly not a topic
appropriately for sole management discretion and there­
fore falls within tho range in which the past practice
concept is applicable.
Tho

Kent City 6 / 2 6 / 6 9

<M. David Keefe)

Whether this can bo accepted as a valid explanation
depends upon the result of scrutinizing the applicable
portions of the Arrroomont. Since no part of this can
bo read out of context (single clauses are commonly
modified by othor relevant sections • . . ) this
requires the arbitrator to take an overview of the
total Agreement so as to determine the equities of tho
natter.
The precedential value and importance of arbitration
on s u c c e e d i n g
by this

school practices was obviously carefully noted

arbitratori

'Waterford 8/26/6?

(Billie S. Famum)

Further, that the statement of tho Waterford Education
Association during the hearing, that should this griev­
ance bo resolved in its favor it would not establish
precedence or cause for any other summer school projoct
participant for further grievance against tho Waterford
Township School District Board of Education is horeby
issued as a decree and made a part of this award.
Tho

unorthodox views of one arbitrator raises the

of

whether an arbitrator must confine himself to

question
questions

of

intent of tho parties, merits of tho issue

and

112
contract language or bo aware of all existing law.

In

this instance the arbitrator cited one Supreme Court deci­
sion, five federal district court docisions, six different
state court docisions and tho Cincinnati Municipal Court to
support his decisioni
Warren 2/16/67

(Robert G. Hewlett)

I base decision on the ground that tho Warren Education
in exerting the Agreement containing the disputed
language signed the contract which included a provision
which contravenes tho Federal and State Constitution
equal protection provision and that those are applicable
to public employees. (Emphasis supplied)
The impact on school management can bo discerned in
tho comments of an arbitrator regarding what he perceived
to bo clumsy administrative action by an olementary school
principal *
Carman (Flint) 1/31/69

(Howard A. Cole)

Page 2 of the Self Evaluation Sheet, under GENERAL
COfl'jSHTS, seems to represent tho perfect capsulation of
a totally ineffective and inefficient attempt at teacher
evaluation finally culminating in a dismissal. Those
remarks represent a pitiful effort to say something
like, "She* isn't a bad teacher, but she doesn't seem to
be too happy in my building* and, since I'm so rushed
for time, she had botter go somoplaco else next year.."
Again, there is nothing of substance in those "general
comments" that represent tho last remarks to accompany
tho dismissal recommendation for a teacher. It is with
some real degroe of professional embarrassment and shame
that I make any remarks relative to tho quality of the
comments found on page 2 of the Self Evaluation Sheet.
Still another revealing attitude of at least one
arbitrator toward tho concept of management control is con­
tained in his comments regarding a teacher's failure to re-do
lesson plans as requested by her principal.

113
Crestwood 10/20/69

(M. David Koofe)

She was told , in no uncertain terms to re-do her
"lesson plans" and return them by 3*^5 p.m. of Tuesday*
March 2 5 . This she failed to do* Neither did she
proffer any excuse* or ask for an extension or, even,
resistor a protost. She ignored tho order as if it had
never boon given. This is a clear case of insubordina­
tion . • •
Under such circumstances, Management is within its
rights to impose discipline. Indeed, it is Management's
responsibility to maintain order in the work-force* A
ono day time off penalty under the total circumstances
would, in this arbitrator's opinion, bo improper to
revoke and could expect to be sustained, based on the
fact that deliberate insubordination was resorted to by
the employee. Tho recourse for tho aggrieved individual
is the Grievance Procedure— and not self-help. Refusal
to carry out a direct order is (with notable exceptions
which would not bo pertinent to this case through
listing) a flagrant offense which exposes the violator
to almost certain time off, if not discharge.
Nor arc arbitrators reluctant to state their opinion
as

to

what constitutes professional work and what does not.

In d e c i d i n g
regular
comments
Saginaw

whether teachers should bo roimbursod at thoir

teaching
wore

salary rates or a lessor rate the following

offered 1

5/ 2 8 / 6 9

(Loon

J. Herman)

I agree with the Board, however, that the work that
tho teachers wore doing in supervising halls and cafe­
terias was not professional sorvice and was in the same
class as ticket taking and selling . . . .
It consists
of no more than patrolling halls and watching students
in the cafeterias. This does not require professionals,
requires no training and can bo done by anyone with or
without a teaching certificate.
It is my opinion that
the work may properly bo paid for on an hourly rate and,
except in ono rospect, tho grievance should bo denied.
T h e exception I refer to is the use of a teacher
d u r i n ^ lunch recesses to conduct singing groups or
'lee clubs o r the like.
This is not a non-professional
o p e r a t i o n a n d is ono which a toachor is peculiarly fitted
to h a n d l e .

11^
Discussion
Tho
dispute
and

findings

woro

salary

economic

indicate

concerned

with

computation

items.

themselves

to

of* t h e

of

that

agreements, or

actual

facts

of

the

basic

and

tho

main,

in

contract
the

Reliance

upon

school

and

industrial

were

tho

next

In s e v e r a l

any

tions,
past

of

the

districts

management

in

upon m a n a g e m e n t
upon p a s t
these

the

in

local

perogatives

were

duties
or

were
in

largely

confining

contained

practice

in

in

local

presented
the

local

arbitration precedence
decisions

back

by

arbitrators.

jurisdiction
pay

to

assist

of
in

probloms.
defense

language

the

of

extra

were

they

rotainod

porogatives

local practice

arguments

for

award

computational

contract

practice

bases

arbitrators

following

School
arguments

common

instances

tho d i s p u t e s
resolving

most

upon

past

as

often

benefits,

language

matters

most

for

wages

in p r o c e e d i n g s •
districts

areas

compensation

Arbitrators,

the

Findings

as

were

rejected

and

they

school
and

reliod

heavily

parallel

interpreted

districts.

parallel

generally
by

most

jurisdic­
it,

This

and

reliance

jurisdictions,
unsuccessful

arbitrators

on

and

and

in most

instances•
Where
t he

contract

well.

Where

or a t t e m p t e d
tions

tho

there

is

language

a

difference

each

party

over

has

fared

school

districts

attempted

to

reappoint

teachers

not

arbitrators

have,

with

only

interpretation

to

nearly

of

oqually

discharge

to

non-tenure

one

exception,

teachers
posi­

115
overruled school districts because they failed to prove
just cause following an adequate warning procodur© as is
required by arbitration common law.
School districts have often raised threshold argu­
ments concerning tho jurisdiction of arbitrators to hear
tho merits of tho dispute.

These arguments have generally

been unsuccessful.
Tho median period for resolution of a contract dis­
pute through arbitration is 212.5 days, or nearly seven
months, which is a long time.

The major period of delay

appears to exist prior to an arbitration hearing.

Once an

arbitration hearing is hold the decision is forthcoming
relatively soon.
Costs of arbitration aro difficult to assess duo to
the limited access to information in this area.

The median

arbitration foe of $450 does not appear prohibitive but the
highest foe— $1,533--sooms a disproportionate cost.

In tho

latter instance, however, tho arbitration involved a class
action and required several days of hearing and perhaps
represented a fair cost for "justice.*'
'.‘
/hen one considers that nearly three-fourths of
tho school districts are using attorneys to roprosont them
in arbitration proceedings, then approximately $1,000 must be

added to each party's cost of a grievanco arbitration whore
attorneys are utilized.

In two instances,

tions paid

>2,000 e a c h f o r a t t o r n e y

in excess

of

teacher organiza­

116

representation.

Additionally,

approximately

two-thirds

tered

tho

through

in a d d i t i o n a l

confidence
toachor
school

in

for

to

their

districts.
in

indicate

an

reasons
to

presence

evidence

of

of

of

noted

of

the

$33
or

were

adminis­
resulting

oach.

bocauso
their

loss

of

groator

cases,

frequently

written

and

than

supporting

arbitration

formality

that

Association,

present

attorneys

one-half

be

arbitrations

parties

abilities
use

should

Arbitration

tho

The

over

tho

financial

organizations

mentioned
to

Amorican

costs

Either

of

it

briefs,

awards,

legalism

appears

in

the

process•
While
most

common

numbers
The

of

to

of

be

generally

in

those

the

employee

provided

can
labor

be

by

the

the

substantial

parties

themselves.

governmental

agencies

ignored.
who

are

are

to

be

expected

statutes

rendering

quite

evidenced

tend

by

is

by
of

experienced

tho

high

to

bo

or

in

dogroo

Arbitrators.

attorneys

and

decisions

the
of

arbi­

member­

Additionally,

have

had

familiar with

judicial

in

legal

the

decisions

most

regarding

relations.
A

thirds

as

Association

arbitrators,

selected

I.ational A c a d e m y

and

significant

are

disputes

arbitrators

training

selecting

arbitrators

contract

Arbitration

arbitration

tration process,
ship

for

arbitrators

The
school

Amorican

agency

sorvicos

appear

tho

further

of the

examination

school

of

grievances

tho
wore

data

revealed

decided

by

six

that

two-

117
arbitrators, indicating that some consistency in the appli­
cation of rules of interpretation is already present.
Comments by arbitrators in their awards reveal
they are not hositant to render opinions as to what consti­
tutes the nature of "professional" work, usefulness of
college class credits, proper management actions, proper
teacher behavior, and a host of related subjects which are
often subjects of concern and dobato in tho education pro­
fession.

At least several of the principal arbitrators are

keenly conscious of the impact of collective bargaining on
education and are attempting to provide fair and reasonable
rules for the education work place.
It would bo highly speculative whether these arbi­
trators might be moro acceptable if they had backgrounds of
training in education.

Arbitrators who had professional

education backgrounds might possess greater insights into
the school problems with which they are confronted.

How­

ever, an equal danger appears to exist, that without the
untarnished eye of a third, outside and uncommitted party,
the school systems may not be sufficiently responsive to
the demands for a contemporary brand of justice which places
a lesser value on older established school practices.
The conclusions, summary and recommendations of the
study are included in the next and final chapter.

CHAPTER V
SUMMARY,

CONCLUSIONS,

AND

RECOMMENDATIONS

Summary

analyze,

Tho

purposo

and

describe

affecting
employee

teachers

review

as d i s t i n g u i s h e d
arbitration,
sary fo r

employer action.

tract,

of

accommodates
and

the

a

The
lag,

high

was p o i n t e d

in

a

basic

the

invented

puting p a r t i e s

in

the

the

arbitration
Michigan public

grievance

interest,

conflict

is

relations,

the

answer

collective
of

and

rules

between

the

arbitration,
compulsory

considered

arbitration

development

quid
to

neces­

pro

unilateral

provides

bargaining

clari­
con­

of p r o c ed ur e
rights

quo

of

and

employees

management.
revealed

overformality

that

which
as

on

democratic

arbitration.

out

of

arbitration

employee

literature

costs,

precedence

been

of

investigate,

grievance

literature

that

of

basic

rights

to

enactment

Additionally,

in

was

of

commercial,

ambiguities

assists

nature
the

tho

from

and

study

law,

of

stability

fication

the

revealed

strike

this

since

bargaining
A

for the

of

no

In

viable

protects

well

as

concerns

and

the

spite

of

basic

arbitration.

excessive

uncertain
those

alternative

the

for

value

problems,

process

rights

of

has

the

time
of
it
yet

dis­

119
Arbitration was reported to contain political
aspects, restrictions on management discretion and to raise
philosophical questions regarding the sovereignty of public
employers.

Tho common law of arbitration was identified.

A

brief review of the major United States Supreme Court cases
and major Michigan court cases indicate courts will, with
few exceptions, observe and support the private process of
Grievance arbitration.
The study was exploratory and descriptive, tho
technique of content analysis by classification was used.
The population consisted of 58 arbitrations involving
65 grievances.

To narrow the scope of the study, two objec­

tives were developed--th© first was to attempt to determine
whether a now common law was being fashioned for school dis­
tricts from the arbitration process.

The second objective

was to secure data dealing with the actual arbitration pro­
cess itself, including such items as time periods required,
costs, outcomes, and other information.

The data were ex­

tracted from tho contents of the arbitration awards except
for cost figures,
A

series of eleven questions was developed, tho

answers to which would assist in accomplishing the objec­
tives of the study.

Classifications for the information

sought were developed and frequencies were recorded.

Medians,

ranges, totals and percentages of responses were calculated.
Tho findings revealed 1

120
1.

The two most common sources for authority cited

by arbitrators were the meaning of tho contract language and
the merits of the individual case*

Precedence from indus­

trial arbitration accounted for ton percent of the decisions,
while no school arbitrations woro cited as basis for deci­
sions.

No reliable pattern of increased reliance on indus­

trial arbitration precedence was observed*
2.

The most common issues submitted to arbitrators

dealt with computation of basic wages and compensation for
additional duties or assignments.

Other issues included

failure to reappoint teachers to non-tenure positions (par­
ticularly coaching), loss of leave or insurance benefits,
letters of reprimand to teachers, failure of a district to
employ black teachers and others.
3*

Teachers were successful in 42 of the 6 5 arbi­

trations in the study and were most successful in areas of
compensation and additional duties, in disputes over basic
wap-es and where teachers wore threatened with discharge or
non-reappointment to non-tenure positions.

School districts

were more successful where disputes involved the definition
of the working day.
4.

Where violations by school districts were deter­

mined by the arbitrators, the most common remedies were to
order payment for lost wages, new computations for compen­
sation or reinstatement of improperly released teachers.
5.

Tho most frequent defenses by school districts

121
included management perogativos, parallel jurisdiction by
another agency, or the merits of the case.
was also placod on past practice.

Heavy reliance

A threshold argument of

non-arbitrability was raised in nearly 3 0 percent of the
cases.

ost common defenses proved the least successful*

When school districts argued tho meaning of contract language,
used emergency-conditions as excuses for non-complianco, or
raised tho solo issue of arbitrability, they were the most
successful.
6.

The median time period between the original

filing of a grievance and issuance of a final arbitration
award was 2 1 2 . 5 days, with tho shortest period 47 days and
the longest period 5 8 6 days.

Tho median time between an

arbitration hearing and the issuance of an award was 3 6 days.
7.

The fees and expenses of arbitrators ranged

between $150 and $1,533 with tho median cost at $*+50•

Only

nine attorney fees and expenses were located and revealed
the lowest cost at $ 1 1 1 . 8 3 and the highest at $2,812,00.
The median figure for this limited data was $9 2 5 *
B.

Attorneys represented school districts in

nearly 75 percent of the proceedings while teachers used
attorneys only 44 percent of the cases.

In 40 percent of

the arbitrations both parties were represented by attorneys.
9.

Written briefs containing supporting arguments

and documentation by tho parties wore mentioned as being
filed in over half of tho arbitration awards studied.

122
10.

Tho services of tho American Arbitration Asso­

ciation were used to secure arbitrators in approximately twothirds of the arbitrations and the balance wore selected by
the local parties with two exceptions involving government
agencies •
11.

Tho arbitrators tended to bo experienced, with

nearly three of four grievances decided by arbitrators who
held membership in tho National Academy of Arbitrators.
Seventy percent of tho grievances were decided by arbitrators
who wore either attorneys or had legal training.
Tho conclusions drawn from this information are
presented in the following section*
Conclusions
The study establishes, without question, that a
new a u t h o r i t y is present in tho school setting.

This can be

discerned by tho nature of the remedios and tho outcomes of
those few instances whore grievances have been appealed to
’■'ichigan courts.

That new authority is the presence of an

outside arbitrator who acts as

judge and jury in resolving

disputes over teachers* rights and the rights of their public
employers.

The new authority of arbitration is revealed in tho
literature to be institutional in nature and represents doc­
trines established over long years of practice in the non­
public sector.

This doctrine includes such concepts as just

cause, due process, corrective discipline, management*s right

123
to m a n a g e

including

tho

right

to

discipline

and

discharge

workers•

trators,

It

seems

as

were

a

tions

studied,

these

established

private
t he
on

the

that

basis

10

from the

of

tho

language

to

to

issue

the

school

of

of

a

setting

existing
is
wore

in

many
in

of

the

evident

in

determined

continues

tho

arbi­

arbitra­

arbitration*

a

new

teacher
job

sub-contracting

depend

school

and

as

to

the

and
as

what

As
to

work

parties
of

to

and

published

and

arbitration*

grievances
a

should

teacher's
may

appropriate

his

will

of

the

administrators

from

con­

replacement

are

constitutes

instructional

factors*

bargaining

constitutes

teachers

schools

several

tho

awards

school

divorced
of

on

in

arbitrators,

resolution
what

law

collective

arbitration

rights
of

of

common

"industry,"

circumstancos

teachers,

of

law

schools

rules

permanent

case-by-case

under what

behavior

school

school

grievances

of

school

with

guidelines

discipline

The

tho

arbitrators

from

clearer

job,

set

the

industrial

in

commonality

in

which

available

bo

tho

arbitration

Evolving

new

the

experienced

conclusion

arbitration process will

tract

extent

a

rate of growth

include

hoc

arbitration

in

common

percent

in

that

established.

These

ad

of
this

grow,

The

to

of

function

be

those

them

of precedence

and

of

assume

Support

of

will

with

to

principles

the p r a c t i c e

place

majority

bring

sector.

fact

reasonable

role

likely

activities

as

a

citizen.

occur,

develop

in

should
the

124
future•
The
management
shape

tho

impact

appears
future

School
cipline,

and

of

grievanco

profound

course

of

in

by a r b i t r a t o r s , a

school

phenomenon

subject

to

limitations,

the

Teacher

Tenure

Act,

the

arbitrators*
The

fession

Previously

of

fair

arbitration

equally

mine

content

to

if

certain

teaching

nature,

or what

constitutes

ation

of

of

their

teachers,

their

is

an

occupational

unsuccessful

in

obtaining

priate

teacher

to c o n t r o l
arbitrators
of t h i s
the

conduct.

will
it

edge

own

In

appeared
for

group,

code
tho

activities,

determine

tho

are

these
that

of

it

the

determination

a

to

meet

to

deter­

professional

oven
the

been

by
a

teachers
determin­

years

singularly

teacher

licensure

governing

of

appears
for

likely
them.

those

or

appro­

teachers*

arbitration
of

the

teaching

behavior

ethics

areas

discretion

action.

the

Over

absence

those

teaching pr o ­

perhaps

over

to

shaped

of

have

dis­

review

being

arbitrators

unknown.

control

meaningful

their

study,

cutting

a

and

to

now

one

and

appropriate

as

of d e v e l o p i n g

pormit

duties,

competence,

subject

Whether

activities

assign,

reasonable

on

profound.

basically

unfettered

demands
of

to

principal

and

school

relations.

totally

restricted

be

conduct

is

be

profession will

in t h e

bo

will

impact

appears

will

on

should

personnel

which

employees.

and

abilities

teachers

administrative
few

nature

administrators*

suporvise

arbitration

ability

that
At

the

process

important

time
was

subjects

125
to tho profession.
The arbitration process is complex, can be lengthy,
expensive, formal and legalistic in nature.

Much of the

determination of the process rests in the hands of tho par­
ties.

If nearly seven months for resolution of a grievance

is the median time required (and one grievance consumed
nearly one and one-half years) then tho parties should take
steps to reduce the processing time.

If costs are considered

prohibitive, then reduction of the use of attorneys and
more utilization of administrative employees and teacher
organization personnel are in order.

Should the parties,

however, equate the quality of arbitral justice directly
with its cost, then arbitration costs will continue to mount.
Tho criticisms of excessive formalism and legalisms
can be reduced by refraining from employment of attorneys
and by not engaging in extensive rosearch of legal and indus­
trial arbitration precedence for supporting arguments as well
as avoiding those arbitrators who appear preoccupied with
peripheral federal interpretations and reports of decisions
by courts in other states on possible similar circumstances.
It has been estimated that only approximately 200 of
I-ichigan's school districts have grievance arbitration as the
terminal stop in resolving disputes over the rights of the
parties.

In those school districts where arbitration does

not exist one must conclude that resolution of such disputes
is a unilateral ono by the public employer--tho school

126
district.

On tho basis of information from this study*

teachers have boon quite successful in appealing their
grievances, leading to tho conclusion that a number of viola­
tions of teachers* rights, at least as perceived by experi­
enced arbitrators, likoly exist in those school districts
where arbitration of disputes does not oxist.

In these dis­

tricts (a majority of Michigan's school districts) the funda­
mental foundations of democratic appeal do not exist and tho
rights of teachors so located cannot be protected short of
expensive and time-consuming recourse to tho Michigan courts.
Re commendat ions
As a result of tho information obtained from this
study, the following courses of action appear worthy of con­
sideration*
1.

To speed the growth of an arbitration common

law unique to tho school environment, it seems desirable to
provide a common repository for the classification and
storage of school district arbitrations.

A logical location

would be under tho direction of the Michigan State Department
of Education, possibly in the Michigan State Library.

At

this central location, all parties could visit and examine
tho awards and copies could bo purchased or received for
study.

An annual summary could bo published and mailed to

all Michigan school districts and interested parties.

Such

a service would provide an excellent opportunity for tho
‘■*ichi~an htate Department of Education to render a valuable

12?
service to education in tho state*
2.

To improve tho predictability of arbitration in

the school, several approaches should be considered by tho
parties.

They should consider tho replacement of gyi hoc

arbitration with the appointment of a permanent arbitrator
at the local level or a panel of arbitrators at the inter­
mediate or state level.

If appointod at the state level,

arbitrators could be selected by the State Superintendent of
Public Instruction upon the recommendations of tho Michigan
School Boards Association and tho major teacher organizations,
who would pay for this service, Tho arbitrators should bo
available for conferences to discuss their observations of
arbitration in tho schools and to offer suggestions for
improving the process.

The consistency of approach and the

available body of rulings would facilitate the reduction of
uncertainty commonly present in current ad hoc arbitration.
3.

The Michigan legislature, if it continues to

deny public employeos tho rights of strike, should take steps
to declare as tho public policy of the state of Michigan that
disputes arising from interpretations of collective barTainin" agreements between its local branches of government
and itc citizens employed theroin are best resolved through
arbitration of such disputes.

A major reason for the wide­

spread use of grievance arbitration has boon to provide
stability of personnel relations in the face of potential
work stoppages arising from disputes under contracts.

With

128
Michigan citizens employed by government denied the freedom
of refusing to work in the face of alleged employer abuses,
such alternate means of providing fair and equitable justice
should be vigorously encouraged.
k-m

Universities which provide programs for the

preparation of school administrators have responsibilities
and obligations to instruct potential school managers in
tho study of arbitration, its implications, standards and
outcomes.

Failure to do so will likely leave them unpre­

pared for fulfilling their administrative functions.

Corres­

pondingly. colleges and universities which prepare teachers
assume equal responsibilities to instruct them in their
rirhts and responsibilities as citizens of the school com­
munity.

Expectations of teachers regarding their behavior,

the scope of their job and other important and real considera­
tions in the profession should bo adequately covored in their
instruction so as to assist them in making a successful tran­
sition from the university to thoir occupational practice,
5.

School districts, which to date have opposed

grievance arbitration, should re-examine their positions on
the issue.

When one considers tho alternatives--the possi­

ble provocation of illegal strikes by toachers who see no
other way of protesting alleged employer abuses, or the con­
tinued suppression of what is considered in today's society
a fundamental democratic right of appeal to an impartial
body--both alternatives soon loss hoalthy, less contributing

129
to a school environment which demands the scholarly pursuit
of excellence by teachers and the idealization of human
rights and democratic values to thoir students,
6,

Those school districts which have arbitration

of grievances in their agreements with teachers should con­
sider tho consequences of engaging in superfluous technical
defenses and address thomsolvos to basic resolution of
employee complaints•

To do otherwise is to risk tho develop­

ment of a cynical attitude in thoir district toward the good
faith desires of the parties to treat each other honestly
and fairly.

These same recommendations apply to the loaders

of teachers' organizations who should bo principally con­
cerned with protecting thoir mombors* rights with a just and
reasonable system of appeal#
7,

The vast bulk of grievances is now being handled

by school district administrators who have had no formal
traininr in those areas.

School districts, whore they are

not doing so, should engage in extensive insorvice education
of thoir administrators regarding tho arbitration process,
tho need for consistent interpretation of contract terms,
and to assist in making them fool more comfortable with know­
ledge of this now authority in education.

Districts may also

wish to assign one administrator tho principal responsibility
of maintaining personnel records and preparing and presenting
the districts' positions in arbitration proceedings rather
than to continue to rely on outside attorneys.

Arbitration

130
of Grievances concerns the day-to-day relationship of teachers
and their administrators and seems best handled by permanent
and skillod employees of the districts.
8.

School administrator and teacher organizatio

should publicize significant arbitration rulings to familiar­
ize their members v/ith the respective rights and responsi­
bilities of teachers and administrators as determined by tho
arbitrators•

Thoir conferences should include sections on

the subject of arbitration and thoir publications should
alert members to this important new aspect of their daily
lives.
Suggestions for Further Study
1.
with

The most difficult aspect of the study has dealt

tho necessarily subjoctive determination of classifying

the major bases for arbitration decisions, major dofensos by
school districts and tho issuos themselves.

It is suggested

that a panel of arbitrators might bo enlisted to assist in
categorizing these areas to roduco what is likoly the major
limitation of the study.
2,

At the time of this study, arbitration awards

did not contain a consistent format, including the date of
grievance filing, date of hearing, presence of tho parties
represented, specific reference to written briefs, or tho
address of the arbitrators.

Cost information was difficult

to obtain, particularly regarding the costs of attorneys and

131
tho total costs of remedies ordered by arbitrators*

It is

su^cstod that future rosearchers be alert to these diffi­
culties • .
3*

A study is suggested to compare the differ­

ences which night bo present regarding morale and attitudes
of school personnel which are employed in school districts
which provide arbitration of employee grievances as contrasted
to employees in school districts which do not provide arbi­
tration of grievances•
^*

A study is suggested to identify those colleges

and universities which include in their prepration programs
for school administrators the study of grievance arbitration*
Comparisons of the relative success of these graduates might
be made with school administration graduates who have not had
the opportunity for study in this area*
5*

A study is suggested to determine the percep­

tions of the arbitrators who practice thoir profession in
both the school and non-school sotting to determine whether
substantial differences are encountered*
6*

It is suggested that a study of similar nature

bo conducted in 1 9 7 5 and at future periods to contrast the
results of the studies and assist in determining tho rate
of growth of arbitration and its implications for tho parties
and for public education*
Tho completion of this study should bo viewed as
only the first of necessarily many studios of tho complex
authority of arbitration in the school setting*

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Getman, Julius G.
"Tho Debate Over the Calibre of Arbitra­
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Judge Hays and His Critics."
Indiana Law
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Kafen, Bruce C.
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Howiett, Robert G,
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teller, Leonard A.
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Labor Arbitration Cumulative Digest and Table of Cases. The
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La.bpr Arbitration Reports. The Bureau of National Affairs,
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I’letzler, John.
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Ronner, Walter V. "Handling Grievances of Non-Union
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Summers, Clyde W. "Collective Agreements and the Law of
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Business Week. No*

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Trotta, Maurice S. "Insubordination." Management Personnel
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No. 1 (Spring, 1965), 20.
Wheeler, Malcolm E.
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No. 3 (February, 1 9 6 9 )^ 0 7 3 T
Younn, William F. "Curricular Negotiations." Educational
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Zcidler, Frank. "Public Servants as Organized Labor."
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1969), 51.
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Bishop, Leslie J. Collective Negotiation in Curriculum and
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'Washington, D.C., 1967.
Braden, J.
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136
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Criovanco Procedures for Teachers in Negotiation Agreements.
National Education Association Research Report 19^9 R8, Washington, D.C., 1 9 6 9 .
Howlett, Robert G. Arbitration in the Public Sector.
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Mi chigan, 1 9 6 7 •
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Voluntary Labor Arbitration Rules. Amorican Arbitration
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amended and in effect February 1, 1 9 6 5 .
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Industrial and Labor Relations, 1967.
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District. Civil Action 1*4-389. October 29* 19^9*
Genesee County, Michigan.
Baum, victor J., Circuit Court Judge. Dearborn #8 Education
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February 5* 1969* Wayne
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138

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. Warren Consolidated Schools.
1967.
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Keefe, M. David. Dearborn # 8 Education Association.
#5430 0113 0 8 , 1968.

AAA

Kerns, Circuit Court Judge. Local 953 and Council 55 of
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Newblatt, Stuart A., Circuit Court Judge. Flint Education
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Seward, Ralph.
92 67.

Bethlehem Steel Company, Grievance 9266 and

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United Steelworkers v. Warrior & Gulf Navigation Co.. 3 6 3 U.S.
574, I960.

APPENDICES

APPENDIX A
POPULATION OF ARBITRATION AWARDS
IN THE STUDY

Assipned
Humber
in tho
Study

School District Name

Date of
Award

Arbitrator

1•

Warron

2/7/6?

Howard A. Cole

2.

Warron

2/12/67

Robert

3.-A

Birmingham (2)
3/15/67

David G * Heilbrun

-3

Howlett

4*

Sapinaw

5/6/67

Robert G. Howlett

5•

Warren

5/16/67

Gordon N. Alexander

6.

Warren

6/10/67

Richard Mittenthal

?.

Pinconnin^

6/26/6?

David G* Heilbrun

8,

Highland Park

7/6/67

Ronald Kaughton

9*

Wayne

7/17/6?

Robert G* Howlett

10.

Waterford

8/1/67

Robert G* Howlett

11.

Waterford

8 /2 6 / 6 7

Billie S • Farnum

12.

Greenville

11/9/67

William Haber

13*

Lincoln Park

2/5/68

David G, Heilbrun

14.

Lincoln Park

4/6/68

Harry N. Casselman

15.

3oecher (Flint)

5/8/68

M. S. Ryder

139

140

Assigned
dumber
in the
Study
16.

Chippewa Valley

5A3/68

M, David Keefe

17.

Clintondale

5/22/68

Dudley £• Whiting

18.

Warren

5 /2 5 / 6 8

Richard Mittenthal

5/27/68

M, David Keefe

<
i
•

School District Name

Date of
Award

Arbitrator

Dearborn #8 (2)

_3
20.

Reese

6/3/68

Leon J . Herman

21.

Lakeview (Battle
Creek)

8/8/68

Harry N. Caseelman

22.

Codwin Heights

8/9/68

Benjamin M. Becker

23.

Beecher

8/17/68

E. J. Forsyth

24.-A

Flint (2)
8/24/68

M. David Keefe

_
a>
•T*
25.

Bay City

8/26/6 8

Howard A. Cole

26.

Lincoln Park

9/6/68

Robert S. Rosenfield

27.

Hartford

10/14/68

David Grier

28.

Evart

10/20/68

E. J. Forsythe

29.

Beecher

1/2/69

E. J. Forsythe

30.

Bloomfield Hills

1/2 7/69

Harry N. Casselman

31 .-A

Carman (Flint) (2)
1/31/69

Howard A. Cole

-3
32.

Carden City

4/7/69

M. David Keefe

33.

Fraser

4/22/69

Harry N. Casselman

34.

Warron

4/22/69

E. J. Forsythe

14-1

Assigned
Number
in the
Study

School District Name

Date of
Award

Arbitrator

35 *

Southgate

V 2 9 /6 9

Leon J • Herman

36.

Lake Crion

5/1V 6 9

Dudley E* Whiting

37.

Harper Crock

5/27/69

Harry N, Casselman

33.-A

Saginaw (2)

5/28/69

Leon J s Herman

5/29/69

Alan Walt

-B
39.-A

Taylor (2)

-3
^0.

Carrollton

6/2/69

Howard A. Cole

*+1.

Van Buren

6/ 6 / 6 9

Harry N. Casselman

*+2.

Bast Detroit

6/10/69

Harry N. Casselman

**3.

Wayne

6/20/69

Harry N. Casselman

kk.

Kent City

6/26/69

Mi David Keefe

^5.

Trenton

6/30/69

David G. Heilbrun

^6. -A

Beecher (2)
7/1/69

E. J. Forsythe

-3
^7.

Portage

7/15/69

Robert Gi Howlett

^8.

Srandville

8 /2 3 / 6 9

Howard A • Cole

^9.

Schoolcraft College

8/22/69

Leon J • Herman

50.

Saginaw Township

8/26/69

David G, Heilbrun

51.

Crostwood

10/20/69

M. David Keefe

52.

Mclv indale

12/11/69

Alan Walt

53.

Crostwood

1/7/70

M. David Keefe

142

Assigned
Number
in the
Study

School District Name

Date of
Award

54.

East Detroit

1 /2 0 / 7 0

Robert G. Howlett

55.

Lans ing

1/2 0 / 7 0

Leland W. Carr. Jr

56.

Buena Vista

2/7/70

Harry N. Casselman

57.
56.

Northwest (Jackson)

2/16/70

David G, Heilbrun

Howell

2/25/70

James P. Tryand

Arbitrator

APPENDIX B-l
CXiASSIFI CATION

A
3
C
D
E
F
G
H
I

-

Ass irned
r.'unbcr
in the
Study

State Statutes and Judicial and Agency Decisions
Fedoral Statutes and Judicial and Agency Decisions
Past Practice in Local School
Industrial Arbitration Precedence
School Arbitration Precedence
Contract Language
Merits of Instant Case
Intent of the Parties
Other

Major Basis for Arbitral Decision

Classifi­
cation

Contract language, specific precedent
over general provision

F

Federal Constitution and State Consti­
tution provisions

B

3.-A

Past practice in tho system

C

3.-3

Merits of the record and testimony

G

U.S. Supreme Court case and 17 federal
district court decisions

B

Past practice and custom

C

Contract language and testimony at
hearing

F

7.

Contract language

F

3.

Contract language

F

9.

Merits of the record and grammatical
construction

G

1.
2.

5.
•

1*0

144

Assigned
cumber
in tho
Study
10.

Major Basis for Arbitral Decision

Classifi­
cation

Contract language and grammatical
construction

F

11.

Merits of the record

G

12.

Established past practice

C

13.

U.S. Supreme Court decision and school
arbitration case

B

14.

Morits of testimony

G

15.

Contract language

F

16.

Merits of the record, including testi­
mony and exhibits

G

1?.

Contract language

F

18.

Failure to prove just cause

D

19.-A

Contract language

F

19.-B

Merits of the record and testimony

G

20.

Merits of the record and untimely filing

G

21.

Merits of tho rocord, including testi­
mony by griovant

G

22.

Contract language

F

2?.

Contract language

F

24.-A

Contract silence and management rights
clause

D

24.-5

Contract language and past practice

C

25.

Investigation of merits of instant case

G

26.

Intent of the original negotiating
parties

H

Contract language creates unequal
status of teachers

J

2?.

115

Assigned
dumber
in tho
Ttudy

Major Basis for Arbitral Decision

Classifi­
cation

23.

Contract language

F

29.

Contract silence and past practice

C

30.

Contract language

F

31.-A

Just cause proven by the record

G

31. -3

Failure to prove just cause in record
and testimony

G

Violation in effect under old contract
preventing jurisdiction

F

33.

Contract language

F

31.

Contract language

F

35.

Contract language

F

36.

Minutos of the bargaining sessions

H

37.

Contract language

F

38.-A

Contract language and merits of tho
record

F

38.-B

Morits of the instant case

G

39.-A

Burden of proof not sustained by
school board

D

39.-3

Clear reading of the contract

F

10.

Merits of tho record of testimony

G

11.

Management porogativc absent evidence
of arbitrary or capricious action

32.

12.

Morits of instant case

D
r*
I

13.

Contract language

F

11,

Failure to provide sufficient proof
of just cause

D

146

Assigned
Number
in the
Study

Major Basis for Arbitral Docision

Classifi­
cation

45.

Past local practice

C

46. -A

Contract language

F

46.-B

Contract language

F

4?.

Timeliness— Non-arbitrablo (contract
language)

F

48.

Merits of the instant case

G

49.

Merits of the instant care

G

50.

Industrial arbitration practice and
precedence

D

51.

Morits of instant case and contract
requirements

G

5?.

Morits and testimony of instant case

G

53.

Merits of instant case

G

54.

Federal Constitution, Civil Rights
Act and U.S. testimony

B

55.

Merits of testimony and record

G

56.

Contract language

F

57.

Five supporting industrial arbitration
awards

D

Past practice

C

58.

APPENDIX B-2
CLASSIFICATION
A
B
C
D
E
F
G
K

-

Assigned
Number
in the
Study
1.
2.
3.-A
3 .-3
4.

5.
6.
7.

Leave Benefits
Compensation for Additional Duties
Discharge
Transfer and Promotion
Definition of Working Day
Non-reappointment to Non-tenure Position
Basic Wages
Other

Issues Submitted to
Arbitration by Teachers

Outcome

Loss of preparation period-geometry class assignment

Sustained

E

Full salary credit for out­
side teaching experience

Sustained

G

Classifi­
cation

Definition of working school
day for counselors

Denied

E

Definition of working school
day for librarians

Denied

E

Released time for lunch for
Junior High teaching per­
sonnel

Denied

E

Loss of salary for counselors
and coaches during strike

Denied

G

Is non-reappointment of coach
an arbitrable issue?
Sustained

F

Football coach pay during
summer practice

B

147

Sustained

148

Assigned
Number
in the
Study
8.

9.
10.

11.

12.
13.

Issues Submitted to
Arbitration by Teachers

Outcome

Salary payment to teachers
for extra hour assignment
(X)

Sustained

Classifi­
cation

B

Definition of teaching load
for elementary teachers

Denied

E

Master contract requirement
teachers sign individual
contracts

Denied

H

Salary rate difference between
summer and Fedoral Project
rates
Sustained
Is summer schedule hours for
day arbitrable (X)
Method of personnel selection
for Federal Project

G

Sustained
Denied

D

Reappointment methods for
football coach

Sustained

F

15.

Compensation for loss of
free period

Sustained

B

16.

Additional pay for advanced
training (X)

Sustained

H

Supplemental pay for music
assignments

Sustained

G

Non-reappointment of a
coach

Sustained

F

Compensation for assignment
over regular school assign­
ment
Sustained

B

Additional pay for advanced
training

r*
Lr

14.

17.
18.
19.-A

19.-S
20.

Adverse Teacher Evaluation
report

Sustained
Denied

JA

1^9

Assigned
Number
in the
Study
21.

22.
23.
2^.-A

2k* -B

25.

26.
27.
23.

29.

Issues Submitted to
Arbitration by Teachers
Compensation Tor study hall
assignment during prepara­
tion hour (X)
Additional compensation for
counselors
Compensation for loss of
released preparation time
School District change of
opening day of community
college

Outcome

Sustained
Denied
Sustained

Classifi­
cation

6
G
B

Denied

H

School District change of
opening day of school—
compensation

Sustained

G

Method of transfer and
appointment to vacant
positions

Sustained

D

Additional pay for advanced
college credits

Denied

G

Salary credit for outside
teaching experience

Sustained

G

Does arbitrator have juris­
diction of stated griev­
ance ( x )

Sustained

H

Compensation for teaching
in lieu of substitute

Denied

B
A

30.

Loss of sick leave credit

31.-A

Non-reemployment of pro­
bationary teacher

Denied

F

Non-reemployment of pro­
bationary teacher

Sustained

F

31.-3
32.

Sumner school assignment
and pay computation

Sustained

Denied

B

150

Assigned
Number
in the
Study

Issues Submitted to
Arbitration by Teachers

Outcome

Classifi­
cation

33.

Loss of personal leave credit

34.

Definition of "wages" for
negotiation purposes

Sustained

H

Discharge notification to 51
teachers for failure to
pay agency shop foes

Sustained

C

Salary credit for college
course credits

Sustained

G

35.

36*
37.
38.-A
38.-B
39.-A
39.-3

4o.

41.
42.
43.
44.
45.

Denied

A
*

t

health insurance protection
for injured teacher

Denied

H

Teaching compensation for
noon hour duty

Denied

B

Loss of personal leave for
hunting purposes

Denied

A

Loss of personal leave used
in protest action

Sustained

A

Discharge of 10 teachers for
failure to pay agency shop
fees

Sustained

C

Reappointment of driver ed­
ucation teacher for
summer employment

Sustained

G

Transfer roquest to vacant
biology section

Denied

D

Salary credit for law school
study

Sustained

G

Payment computation for
summer employment

Sustained

B

Re-appointment of football
coach

Sustainod

F

Payment for coaching ser­
vices

Sustained

B

151

Assigned
Xunber
in tho
Study

Issues Submitted to
Arbitration by Teachers

Outcome

96 •-A

Loss of sick leave credits

Sustained

A

96.-3

Procedure for filling staff
positions

Sustained

D

Classifi­
cation

Incomplete insurance bene­
fits (X)

Denied

H

9o.

Use of personal leave

Denied

A

99 •

Denial of tenure status to
probationary teachers

50.

Salary credit for past
teaching experience

9?.

51.

Discipline for insubordina­
tion— one day loss of pay

52.

Pay for tine lost honoring
picket line of non-teaching
employees
(X)

Sustained
Denied
Sustained

Denied

C
sJH

H

Improper filling of coaching
positions
(X)

Sustained

F

59.

Employment of black teachers

Sustained

H

55.

Letter of Reprimand in
teaching personnel file

Sustained

H

Salary schedule credit for
loss than "BM college
course work

Sustained

Pull family insurance for
spouse

Sustained

H

Pay for additional dutios

Sustained

B

53.

56.

57.
58.

(X) Denotes a throshold issue of arbitrability raised

APPENDIX B-3
CLASSIFICATION
A
B
C
D
E
F

Assigned
Number
in the
Study
1.
2.

-

Reappointment
Back Pay
Additional Payment
Cease and Desist Protested Practice
Take Affirmative Action
Other

Remodios Ordered by Arbitrators
whore Teachor Grievance
was Sustained
Desist misassignmont and provide pre­
paration period as required

Classifi­
cation
D

All teachers so located to have
salaries recomputed for new salary
B

(X)
6.

Ruling— issue is arbitrable

F

7.

Payment for disputed time

C

8.

Pro rata paymont for extra assignment

C

11.

Payment for difference betwoen summer
and Federal Project rate

C

12.

Rulinfr--issuo is arbitrable

F

Ik.

Continue appointment, Supt* to submit
recommendation to Board

A

15.

Paymont for additional assignment

C

16.

Salary recomputed to now rate

c

17.

Additional payment for extra duty

c

152

Assigned
dumber
in tho
itudy
18.

Remedies Ordered by Arbitrators
where Teacher Grievance
was Sustained

Classifi­
cation

Reappoint coach and make whole for
lost wages

A

Reimbursement for all time worked
over regular assignment

B

Recomputation and new placomont on
salary schedule

C

Back pay for all teachers so located
(X)

B

23.

Back pay and continued now rate

B

2^.-3

Compensate all teachers for one week
loss of vacation

B

25.

Vacate Board appointment and re­
examine applicants

£

27.

Basic pay for all toachors so located

B

28.

Rulinrr— issue is arbitrable

F

30.

Back pay for lost days (rotainod
jurisdiction)

B

Reappoint teacher and pay for unmiti­
gated damages

B

3*U

Ruling— "wagos" include all forms of
compensation

F

35.

Board ordered to notify toachors of
intent to dismiss

£

Place all toachors so affoctod on
new and improved schedule stop

C

Partial Award in Denial--music
teachers to got pro-rata salary
rate

C

Back paymont to all teachers for loss
cf personal time

3

19.-A
19.-3
21.

31.-3

36.
38.-A

39.-A

15^

Assigned
number
in the
Study

Remedies Orderod by Arbitrators
where Teacher Grievance
was sustained

Classifi­
cation

39. -3

Board ordered to discharge toachors
within 10 days if foes not paid

£

40.

Back pay ordered for all wages lost
because of non-reappointmont

B

New salary rate computed on retro­
active basis

C

Paymont of differences between old
and now rate

C

Reinstatement of coach and payment
for lost wages

A

45 •

Disputod paymont orderod

C

46. -A

Paymont ordered for period under
dispute

B

3oard orderod to follow contract in
filling vacancies

E

Board orderod to offor tenure con­
tracts to probationary toachors

E

51.

Board ordered to pay lost wages

G

53.

Reinstatement of coach with lost
back wages

A

Board ordered to actively seek to
employ black teachers

E

Board orderod to romove adverse
comments from teacher's file

E

Placement of teacher on higher
salary rate

C

Institute immediate paymont of full
insurance premiums
(X)

E

Additional payment ordered

C

42.
43.
44.

46. -B
49.

54.
55.
56 .
57.
53.

(X) ^cnotes Arbitrator retained jurisdiction

APPENDIX B-4
CLASSIFICATION
A
B
C
D
E
F

Assigned
Number
in tho
Study

-

Pact Practice
Intent of the Parties
Contract Language
Emergency Conditions
Non-arbitrable
Other

Most Common Major Defense Relied
Upon by the Dcfonding
School District

Classifi­
cation

1.

Contract language

C

2.

Classification not considered legally
discriminatory

F

3. -A

Past practice

A

3.-3

Past practice

A

h.

Clear language of the contract

C

5.

Management Porogative

F

6.

Past practico and custom

A

7.
Q
^•

Intent of the parties

B

Past practico in emergencies

A

Emergency conditions and record of
attempt to comply

D

10.

Cloar language of the contract

C

11.

Summer Federal Project no differont
than other summer employment

A

9.

155

(X)

156

Assigned
Number
in tho
Study
12,

Most Common Major Dofonse Roliod
Upon by tho Defending
School District

Classification

Silonco in contract— authority under
Michigan School Code

F

13.

Contract language

C

12+.

No vacant position existed

F

15.

Contract meaning of "normal"

C

16,

Past practico (Timeliness)

l?.

Past practico

A

18.

Poor teaching performance

F

19.-A

Contract language

C

19.-3

Intent of the parties

B

20.

Morits of tho Case (Timeliness) (X)

F

21.

Past practico

A

22.

Contract language

C

23.

Loss of millago resulting inequi­
valent time off

D

Contract silence— managementrights
clause

F

Contract silence— managementrights
clause

F

25*

Managerial discretion

F

26.

Intent of the parties

B

27.

Prior past practice and consent
the individual

2^.-a
2^.-3

28.

(X)

A

(X)

(X)

Isuuo non-arbitrablo--merits of
issue never discussed
(X)

of
A
E

15?

Assigned
Number
in tho
Utudy

Most Common Major Defense Roliod
Upon by the Defending
School District

Classifi­
cation

29.

Contract silence and past practice

A

30.

Contract was never ratified (Time­
liness)
(X)

F

Non-arbitrable, Tenure Commission
Jurisdiction
(X)

E

Non-arbitrable* Tenure Commission
Jurisdiction (X)

E

32.

Non-arbitrable due to untimely filing

E

33.

Contract language

C

3^.

Contract language

C

35.

Issue ponding before state labor board
and Appeals Court (X)

F

36.

Administrative error and not intent of
tho partios

B

37.

Non-arbitrable because of timeliness (X)

E

33. -A

Contract language

C

Administrative nocossity

D

39.-A

Unauthorized strike

F

39.-B

Not determined in court of competent
jurisdiction

F

Merits of the Case (Timeliness)

F

31.-A
31.-3

i

•
CO

(X)

^1.

Managerial perogativo (Timolinoss)

42.

Contract language

C

43.

Past practico and lesser level of work
performance

A

Management perogativo (Timolinoss)

F

W- ,

(X)

(X)

F

158

Assigned
dumber
in the
Study

Most Common Major Defense Relied
Upon by the Defending
School District

Classifi­
cation

^5.

Contract language

C

b S .-A

Contract language

C

if-6•-B

Attorney General Decision placing issuo
in question

F

Untimely filing of griovance

£

^7.

(X)

Contract language

C

89.

I^anagcmont perogative

F

50.

Past practico (Timeliness)

51.

Management Perogativo

52.

Contract languago

53.

Board porogative

5^.

Past practice

A

55.

Failure to follow school policy

A

56.

Intent of the parties

B

57.

Past practice

A

58.

Now duties do not roquiro additional
pay

F

(X)

(Timolinoss)

A
F

(X)

(X)

(X) denotes where arbitrability is raised as a
threshold question

C
F

APPENDIX C-l
TIME DATA INCLUDED IN THE ARBITRATION AWARDS

Ansimed
Number
in the
~tudy

Date oT
Filing
Grievance

Date
Indicated of
Arbitration
ffearing
1/13/6?

1.

Date of
Issue
for
Award
2/7/67

2.

9/21/66

2/12/6?

3.-A

9/19/66

3/15/67

3.-3

9 /2 9 / 6 6

3/15/67"

4.

9/7/66

5/6/6?

5.

10/13/66

6,

10/22/66

2/7/67

5A6/67
6A 0/67

6/26/67

7.
8.

9/27/66

5/9/6?

7/6/67

9.

1 1 /2 7 / 6 6

5/23/6?

7A7/67

10.

4/17/67

11.

6/7/6?

12.
13.

8/7/6?

14.

10/4/6?

15.
16 *

10/17/6?

8A/66

8/11/67

8/ 26/67

9/16/6?

11/9/67
2/5/68

2/8/68

4/6/68

4/26/68

5/8/58

4/19/68 *

5/13/68

160

Assigned
Number
in the
Study

Date of
Filing
Grievance

17.

9/2 5/66

18.

10/22/66

Date
Indicated of
Arbitration
Hearing

Date of
Issue
for
Award
5/22/68

5/9/68

5/ 25/68

19.-A

5/21/68

5/ 27/68

19. -B

5/21/68

5/ 27/68

5A 0/68

6/ 3/68

2A7/68

8/8/68

20.

1/26/68

21.
22.

8/9/68

23.

7/26/68

8/17/68

24.-A

8A 3/68

8/24/68

2/4-,-3

8A 3/68

8/24/68

7/12/68

8/26/68

25.

2/1*4/68

26.

9/6/68

27.

9/30/68

10/14/68

28,

4/18/68

11/4/68

11/20/68

29.

4/30/68

12A2/68

1/2/69

30.

3/4/68

11/20/68 *

1/27/69

31.-A

4A 6/68

11/9/68

**

1/31/69

31.-B

4/18/68

11/9/68

**

1/31/69

32.

7A 0/68

2/19/69

4/7/69

33.

3/4/69

4/22/69

34,

2A 4 /6 9

4/24/69

4 /1 0 / 6 9

4/29/69

35.

1/3/69

36.

9/19/68

5/14/69

161

Issif^ned
Numbor
in tho
Study-

Dato of
Filing
C-rievance

Date of
Issue
for
Award

2A 0/69

5/27/69

<

4/28/69

5/28/69

38.-B

4/28/69

5/28/69

<

2/13/68

Date
Indicated of
Arbitration
Hearing

5/20/69

5/ 29/69

39.-B

5/20/69

5/29/69

37.
i

■
CO

i

•
CN

40.

7/8/68

5A/69

6/2/69

41.

6/12/68

3A 7/69

6/6/6 9

42.

9 /2 3 / 6 8

5/1/69

6/IO /69

4/21/69

6/20/69

5/7/69

6/28/69

5/7/69

6/30/69

43.
4^.

9/25/68

45 •
46.-A

3/13/69

5A 8/69

7/1/69

'^6.-3

5/15/69

5/18/69

7/1/69

47.

12/20/68

6/ 24/69

7/15/59

48.

7A1/69

8/23/69

49.

7/1/69

8/22/69

50.

8/26/69

51.

4/3 0 /6 9

9/30/69

10/20/69

52.

6/ 6 / 6 9

11/5/69

12/11/69

53.

1 2 /3 0 /6 8

5A4/69

1/7/70

54.

5/2 3/69

55.

6/14/68

1/2 0 / 7 0
12A5/69

1/21/70

162

Assigned
Humber
in the
Study-

Date of*
Piling
Grievance

56.

10/2 8/68

57.

9/16/69

Date
Indicated of
Arbitration
Hearing

Date of
Issue
for
Award
2/7/70

12/2/69

2/16/70

58.
*

2/25/70
Two day hearing
Three day hearing

t
4

APPENDIX

TIKE

-Assigned
Number
in the
Study

INTERVAL

^

11 —

DATA

C-l-A

COMPUTATIONS

■

Grievance to
Hearing

1 1—

(DAYS)

—- ! —

Hearing to
Award

■

— p.
Total Time
Period
Grievance
to Award

25

1.
2.

144

3.-A

177

3.-2

167

4.

241

5.

117

94

6.

211
231

7.

8.

225

28

253

9.

117

55

232
106

10.
11.

65

15

12.

56

13 .
14.

182
127

57

15.
16.

80

184

12
184

24

163

208

161*

Acnirncd
lumber
in the
Btudy
17.

Grievance to
Bearinr

Hearing to
Award

226

13

IB.

239
185

19.-A

r
(
.3

19.-3

6

20.

Total Time
Period
Grievance
to Award

10*1-

2h

123

1?2

21.
22.

23.

22

2j'r .-A

11

21'-.-3

11

25.

li|-8

*5

193

26.
27.

1^

2B .

200

15

215

29.

73

21

9^

30.

261

68

329

31.-A

207

03

290

31.-3

205

03

288

32.

22A

^7

271

33.
rw. •
35.

^9
69
97

19

116

'

165

Assigned
Number
in the
Study-

Grievance to
Hearing

Hearing to
Award

36.
37.

Total Tim©
Period
Grievance
to Award
237

362

106

<
i
•
CO
<T",

30

38.-B

30

39.-A

9

39.-B

9

468

40,

297

32

329

41.

2?8

81

359

42.

212

40

252

60

43.
44,

224

50

274

54

45.
46 •-A

66

44

110

46.-B

3

44

47

186

21

207

4?.
48.

43

49.

52

50.
51.

159

20

179

52.

152

36

188

53.

125

228

353
242

54.
55.

549

37

586

166

Assigned
Humber
in tho
Study
56.

Co
•

57.

Griovance to
Hearing
6?

Hearing to
Award
35

Total Time
Period
Grievance
to Award
102
153

APPENDIX C-2
DATA

Assirned
Number
in tho
Study

INDICATING

Arbitrator
Foos
and
Expenses

COSTS

OF

School
District
Attorney
Expenses

ARBITRATION

Teachor
Attorney
Expenses

1.
2.

3.-A

3

6 6 9 .IS

$2 ,812.50

6 7 5 .0 0

2,351.25

3.-B

o*
6.
7.

3 6 1 .6 0

261.52

8.
9.
10.
11

.
12.

660.00

13.

3 0 0 .0 0

16.
15.
16.
17.

167

Other

168

Assigned
Number
in the
Study

Arbitrator
Fees
and
Expenses

School
District
Attorney
Expenses

Teacher
Attorney
Expenses

18 .
19.-A
19.-3
20.
21

.

500.00

22.

938.55

23.

322.30

26. -A
26.-5

555.00

2 5.
26.

300.00

27.

150.00

23.

360.00

2 o.

322.80

30.

900,00

31.-A
31.-3

1,533.00

32 .

650.00

33.

650.00

36.
35.
36.

650.00

3925.00

Other

169

Assigned
Number
in the
3tudy
37.

Arbitrator
Fees
and
Expenses
J4.5 0 .OO

School
District
Attorney
Expenses

Toacher
Attorney
Expenses

Other

1 .0 7 9 . 3 3

$128,00

33.-A
33.-B

677.90

39.-A
39.-3
60.
61.

525.00

62.
63.

525.00

.

665.00

l>5*

250.00

66

66. -A
66. -3

321.60

67 .
'>3.

J4.05.10

^ 52,51

55.

250.00

1 ,270 .3^4-

56.

555.00

49.
50.
51.
52.
53.
5^.

111.83

170

Assigned
number
in the
Study

Arbitrator
Fees
and
Expenses

57.

WO.l'rO

53.

2^-0.00

School
District
Attorney
Expenses

Teacher
Attorney
Expenses

Other

APPENDIX C-3
REPRESENTATION
AND

OF

THE

PARTIES

PRESENCE

OF

TC

ARBITRATION,

BRIEFS

Ass
Xur.be r
in t h e
Study

School
Attorney

District

'eachor A s s o c i a t i o n

Othor

Attorney

1.

Other

Presence
of
Written
Briefs

Local
Toacher

2.

X

X

Yes

3.- A

X

X

Yes

3.-3

X

X

Yes

superin­

Local
Teacher

tendent
X

X

Yes

X

X

Yes

7.

Consul­

X

tant
X

X

Yes

9.

X

X

Yes

10.

X

X

11.
12

.

13 .

Local
Officer

Superin­
tendent

Yes

X

X

MEA Repre­
sentative

171

Yes

172

Assigned
Number
in the
Study

School District
Attorney

Other

Teacher Association
Attorney

Other
ME A Repre­
sentative

lb.
Consul­
tant

15.

Presence
of
Written
Briefs
Yes

Local
Officer

16.

X

MSA Repre­
sentative

17.

X

MEA Repre­
sentative

Yes

13.
19.-A
19.-B
20

MEA Repre­
sentative

.

Consul­
tant

Local
Officer

Consul­
tant

Local
Officer

21.
22

.

23.
2 ii.-A
2^.-3

Local
Officer

25.

X

26.

X

27.
28.

Yes
MEA Repre­
sentative
Superin­
tendent

Local
Officor
MEA Repre­
sentative

Yes

173

Assigned

Number
in the
Study

School District
Attorney

Other
Consul­
tant

29.

Teacher Association
Attorney

Other

Presence
of
Written
Briefs

MEA Repre­
sentative
Yes

30.
31.-A
31.-B

MEA Repre­
sentative

Yes

32.

MEA Repre­
sentative

Yes

MEA Repre­
sentative

Yes

33.

X

34.

X

35.

X

Yes
MEA Repre­
sentative
Superin­
tendent

36.

MEA Repre­
sentative

Yos
Yes &
transcript

37.
38.-A

Asst.
Supt •

Local
Officer

38.-B
39.-A
39.-B

X

40 ■

X

41.

MEA Repre­
sentative
MEA Repre­
sentative

42.

X

43.

X

Yes
Yes

Local
Officer

Yes

17*4-

Assigned
Number
in the
Study

School District
Attorney

Other

Teacher Association
Attorney

Other

44*.

X

MEA Repre­
sentative

45.

X

MEA Repre­
sentative

Presence
of
Written
Briefs
Yes

46 •-A
Consul­
tant

4-6•-B

Local
Officer

4?.

X

X

’>3.

X

X

Yes

49.

X

X

Yes

X

Yes

50.

Consul­
tant

51.

X

52.

X

X

53.

X

X

54.

X

X

55.

X

X

Local
Officer

Yes

Yes &
transcript

53.

Consul­
tant

MEA Represontativo

57.

Ass t .
Supt •

MEA Rep re sentativo

58.

Superin­
tendent

MEA Repre­
sentative

Yes

APPENDIX C-4
SELECTION OF ARBITRATORS AND THEIR BACKGROUNDS

Assigned
Number
in the
Study

Selection
AAA

Other

Background
Attorney
or
Legal
Training
Other

National
Academy
Membership

1.

X

X

X

2.

X

X

X

3.-A
3.-3

Local
Selection

X

i*.

Local
Selection

X

X

5-

X

X

X

6.

X

X

X

7.

X

X

8.
9.

.

Labor
Specialist

X
X

10.

Local
Selection

11.

Local
Selection

12.

F.M.C.S.

13.

X

X

X

X

X

X
Management
Specialist
Professor Economics

X
175

X
X

176

Assigned
Number
in the
Study

Selection
AAA

Other

Background
Attorney
or
Legal
Other
Training

16 .

National
Academy
Membership
X

3 Man
Panel

15.

Labor
Specialist

X

Arbitrator

X

16 .

X

17.

X

X

X

18.

X

X

X
X

19.-A
19.-B

X

.

X

20

21.

Arbitrator

Local
Selecxion

22.

X

X

X

X
Unknown

3 Kan
Panel

23.

Professor
Economics

26, -A

X

26.-5

Local
Selection

25.

X

26.

X

27.

30.

Arbitrator

X

Unknown
3 I*Ian
Panel

28.
29.

X

3 Man
Panel

Professor
Economics

X

Professor
Economics

X
X

1??

Assigned
Number
in the
Study

Selection
AAA

Other

Background
Attorney
or
Legal
Training
Other

31.-A

X

31. -B

X

32.

X

33.

X

X

MERC 263
X
Local
Selection

38.-A

X
Arbitrator

X

36.
37.

X

Local
Selection

3^.
35.

National
Academy
Membership

X
X

Professor Economics

X

X

X

X

X

X

X

X

X
X

38.-3
39.- A
39.-3

Unknown

Local
Selection

J^o,

X

X

X

^1.

X

X

X

^2.

X

X

X

^3.

X

x

X

Local
Selection
^5.

Arbitrator
X

X

X

^6.-A
^6.-3
^7.

X

ProfcssorEeonomics

3 M-an
Panel
X

X

X
X

178

Assigned
Number
in the
Study

Selection
AAA

48.

Other
Local
Selection

Background
Attorney
or
Training

Other

National
Academy
Membership

X

X
X

49.

X

X

50.

X
(panel)

X

51.

X

Arbitrator

52.

X

Unknown

53.

X
(panel)

X

X

5^.

X

X

X

Local
Selection

55.

X

56.

x
(panel)

X

57.

X

X

5«.

Local
Selection

X

X

X