Articles on MREP

Grievance Mediation: AT&T's Experience

By Nancy C. House
August, 1992 Labor Law Journal
(Ms. House is District Manager of Labor Relations, AT&T Southern Region, Atlanta, Georgia)

AT&T's experience with grievance mediation began in 1985 when the Communications Workers of America (AT&T's largest union) first proposed the process to us. I sat as an observer in one dismissal case and did not like what I saw. In early 1988, CWA again approached us about trying the process. At that time, we had a huge backlog of arbitration cases and that backlog was growing daily. Grievance mediation represented to us a possible way to reduce the number of pending arbitration cases along with the associated monetary liabilities. Indeed, the potential for significant cost savings was of interest to both parties. At the same time, however, there was some fear that mediation would be just another step in the grievance process that would add time and cost rather than reduce them.

After considering the potential rewards along with the possible risks, we ultimately agreed to a trial of the process in the fourteen states of our Southern Region. It was then left up to my CWA Union counterparts and me to work out the details of the procedure from the ground up. The first major hurdle was drafting the rules that would govern the use of the process. Some idiot, and it may have been me, suggested that the three of us write up our own proposed sets of rules and then we would get together and combine the best of each in order to come up with the perfect set of rules. Was that ever a mistake!! We had each approached the writing from different perspectives. Our styles of writing were totally different and we almost required a mediator to get us through the first meeting. Finally, we agreed to destroy our masterpieces and meet again in two weeks with clear minds and clean paper.

At our net, and incidentally last meeting to draft the rules, we focused on the broad questions that needed to be answered. How do cases get to mediation? At what point in the grievance process do we convene a mediation conference? What kinds of cases are appropriate for mediation and how do we separate them from the rest of the cases?

All of our contract interpretation cases are heard at the national levels of CWA and AT&T. Those cases were therefore excluded from our trial . We were left then with only disciplinary cases and we decided that any disciplinary case that has been appealed properly to arbitration is a potential case for mediation: Recognizing that successful mediation requires an openness and willingness to negotiate, and not wanting the process to become simply another step in the grievance procedure, we decided that the parties must mutually agree to a mediation conference within fifteen days of the union's appeal to arbitration. In the absence of such an agreement, the case will go directly to arbitration.

Concerning the process itself, our desire was to keep the mediation conference as informal and comfortable for all participants as possible. For these reasons, we agreed that the conference would be conducted on the union or company premises in the city where the grievant worked, and the rules of evidence used in courts of law would not apply. There should be two conference rooms in the same general area so that the mediator can move easily between the parties and so that the parties can have a private place to caucus.

Probably the most controversial issues that we had to initially resolve was who should attend the mediation conference. We finally agreed that fewer people would make compromise and open discussion easier. Attendees for the company are the grievant's supervisor and district level manager, as well as a manager from labor relations who acts as spokesperson for the company. The union spokesperson is a CWA staff representative, and other attendees for the union are limited to the local union president and the grievant.

As for the mediator's role in the process, we decided that the mediator would have no authority to compel the resolution of the grievance. To grant this authority would inhibit the open and free discussion between the parties that we were seeking. The mediator can conduct the conference in any manner that is believed to be most likely to produce a settlement. If no settlement is reached, then the mediator is required to assume the role of an arbitrator and gives the parties an immediate oral advisory opinion as to which party would likely prevail in arbitration along with the basis for that opinion.

The advisory opinion may result in more negotiations between the parties, but if no settlement is reached the grievance can then be scheduled for regular arbitration. No person serving as a mediator in any given case can serve as the regular arbitrator on that same case. In addition, nothing said or done by the mediator, or either of the parties in mediation, can be referred to in arbitration.

Several other important points are covered by our master mediation agreement. First, by agreeing to schedule a mediation conference, the company is not acknowledging that the case is properly subject to arbitration and the company reserves the right to raise the issue of arbitrability at a later time. Second, we agreed to share equally the expenses of the mediator. Each party is, of course, responsible for compensating their own people and covering their own expenses associated with the process. Finally, we agreed to contract with Professor Stephen Goldberg at the Mediation Research and Education Project at Northwestern University to conduct joint training for us.

Participants in the process must understand that the emphasis is on cooperatively resolving the grievance, not on "winning." This is not an easy concept for some participants to accept, because prior to mediation they may have been involved in adversarial grievance meetings. We learned quickly that it is the responsibility of the spokespersons for the company and union to make sure that their own people are informed about how the process works and what they can reasonably expect from it. If people understand and accept the process for what it is, then the possibility of achieving a successful resolution of the grievance is greatly enhanced.

A Typical Mediation Conference

The mediator opens the conference by explaining what mediation is, what the role of a mediator is, and what the participants' roles will be. This reinforces what the participants have already been told by their spokespersons and helps to put everyone at east.

Since all of the cases in our process involve discipline, the mediator asks the company to make opening remarks explaining the facts of the case. The union then follows with their opening remarks. At the conclusion of the opening presentations by the parties, the mediator should have a clear understanding of what the dispute is all about. Normally, they will then want to hear directly from the grievant. When the grievant is done, then the immediate supervisor is usually given an opportunity to say something. This gets people involved and often generates some dialogue across the table.

Once the mediator is satisfied that they have the facts and that everyone has had the opportunity to be heard, the parties are usually separated. From this point on, the mediator's job is to try to ensure that both parties address any weaknesses in their cases and that they begin to move toward some mutually agreeable form of settlement.

It is absolutely essential that all participants understand the behavior of the mediator. The mediator is not there to help you win, but to help you reach some sort of compromise settlement. The mediator's role is to facilitate communications and cooperative problem solving; to emphasize the future and not the past; and to find resolutions rather than fault. This person must look under the surface for issues to understand what is really going on that the parties do not want to discuss with each other. The mediator needs to understand the company's basic concern and also what the union must have to settle. In addition, the mediator must be a person the parties trust enough to confidentially tell their real positions.

If a settlement is reached, we write it up; go over it carefully to make sure everyone understands it and agrees with its specific terms; and then we sign off on it in the presence of both parties and the mediator. If no settlement is reached, the mediator gives u the advisory opinion that I referred to earlier. Sometimes this advisory opinion is given to both parties jointly, other times it is given to the parties separately. Whether it is done jointly or separately depends upon the attitudes and feelings displayed by the parties during the mediation conference and upon the mediator's perception of which way will be most constructive or the least destructive.

Problems We Have Experienced

Most of the problems we have experienced with our grievance mediation process can be attributed largely to "growing pains." In other words, they are things that can and are being overcome as we gain more experience.

For example, the people who attended the joint training for the union were not necessarily the people who wound up presenting the cases. Thus, the union spokespersons sometimes have not had an understanding of the process and the rules. Sometimes, they could be quickly clued in by the mediator and only a relatively few minutes of time were lost. On other occasions, however, this has materially hampered, if not entirely blocked, our ability to reach a settlement. The solution to this problem is more training of the right people, along with better preparation for the mediation conference.

I often call mediators after the conference to determine what the company representatives need to change. A couple of them have stated to me that the company presentations often "go for the throat" of the grievant and create some negative feelings in the room. The mediators suggested that the presentations should be factual without being overly negative regarding the grievant personally. After reading through some of the presentations, I essentially agreed with that assessment and we provided our managers with additional training to specifically cover this point. Now, we try to make the process less emotional and confrontational. We have found that the grievant and the supervisor are more open and there is a greater chance for reaching a settlement if the parties tell their stories in a factual, unemotional manner, at least in joint sessions. If emotions need to be vented, that can be done with the mediator while the other side is out of the room.

Finally, both of my union counterparts who negotiated this agreement with me have retired. One replacement decided that mediation was an additional step in the grievance process for him to get something for the grievant. Consequently, the arbitration and mediation requests were 20 times higher than before. My first conversation did no good so I stopped approving any grievances for mediation. He subsequently withdrew the requests for arbitration. This game continued for about six months and then we had a meeting with his boss. He has since agreed to appeal only the cases that the union is serious about arbitrating. Since then, things have been working much better.

Strengths of the Process

As we see it, the greatest strengths of the process are:

1. Faster resolution of cases. - There are no transcripts, briefs, or written opinions to wait on like there are in arbitration. Mediators usually spend one day on the process where arbitrators require additional days for research, writing, etc.

2. Less expensive. - In addition to the lower cost for mediators as opposed to arbitrators (resulting from less time spent, not from any material difference in daily fees), there are also no attorney fees, no court reporter or transcript, no hotel conference facilities, and no witness expenses. Furthermore, mediators can usually handle tow or more cases in a single day. I understand that the average cost for mediating a single grievance for many companies is around $250. For AT&T, the average cost is considerably higher than that since our labor managers must travel from Atlanta to wherever the grievant is located. Our figure is around $900. However, this is still much cheaper than arbitration, which for us requires an attorney from New Jersey and a labor manager from Atlanta for both preparation and hearing time.

3. Less contentious. - As noted previously, the setting is informal. There are no attorney objections. The focus is on resolving rather than on winning. And finally, the parties make their own resolution rather than have a third-party decision forced upon them.

4. Constructive results. - The focus is on the real problem, not just the grievance. The parties learn to resolve their own problems rather than depending upon an outsider to resolve them. The parties learn settlement skills that carry over to other aspects of their jobs and lives.

Weaknesses of the Process

The weaknesses of the process, real or perceived, could involve possibly fewer settlements at lower steps of the grievance procedure and more appeals to arbitration. Since the process is relatively cheap, either party may push "weak" cases to mediation to try and get "something." The union in particular has little incentive to drop a bad case until after the mediation phase.

Another weakness involves discipline cases that would otherwise go to arbitration. In such cases the company must always give and the union must always get in order to reach a settlement. Also, if there is no settlement and the case goes on to regular arbitration, we have simply added another step to the process, which ultimately takes up time and costs additional money.

There may also be some pressure to settle every case regardless of the merits. This should not be. Arbitration is still available for cases that are not settled. In addition, the other side has an opportunity to see what kind of a case you really have before going to arbitration. My feeling on this is that all of the facts should have been presented in the lower steps of the grievance process anyway. It makes no sense to hold your big guns in reserve until arbitration if revealing them earlier will help result in a settlement being achieved. In any event, in mediation you present the facts. You are not required to reveal strategies that you might be planning to use in arbitration.

Our Results

While mediation is a part of our national union contracts at AT&T, it has been used very sparingly except in my region. In fact, mediation has probably been used no more than six to eight times throughout the rest of the country, while we in the Southern Region have approved the use of mediation in approximately one hundred cases. Thus, you can consider my region's results to be essentially the results of AT&T as a whole.

From October 1988 through March 1992 there were 101 grievances approved for mediation. Of that number, 12 were withdrawn by the union prior to the mediation conference, and five were settled by company prior to the mediation conference. There were a total of 84 mediation conferences. A settlement at the mediation conference was the result in 49 (58.3%) cases. Seventeen (20.3%) of the cases were settled after the mediation conference. Seven (8.3%) of the cases were withdrawn after mediation conference, and 11 (13.1%) of the cases were left for arbitration.

Nine of the eleven cases have been arbitrated, with five awards in favor of the company and four in favor of the union. The advisory opinion of the mediators was ultimately shown to be correct in seven (77.8%) of the nine cases arbitrated. There are two cases still pending arbitration, and the advisory opinions in both cases are in favor of the union.