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Negotiating Protective Dispute Settlement Procedures

Negotiating Protective Dispute Settlement Procedures. Union efforts to level the playing field. Conventional Wisdom: Reserved Rights of Management. Management retains all rights not given up Unions duty to get contractual protection

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Negotiating Protective Dispute Settlement Procedures

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

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

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

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

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

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

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