Most states prohibit public employees from striking and the federal government makes a strike by a federal employee a felony. Many public employee labor relations acts give organized employees a right to arbitrate when their union and employer are unable to reach agreement on the terms of a contract. Much discussion of such interest arbitration schemes has focused on whether the process inhibits bargaining (the chilling effect) or is habit forming (the narcotic effect). These discussions contrast the use of traditional interest arbitration, where the arbitrator may award any outcome that falls between the parties’ final offers, with final offer arbitration where the arbitrator must award one party’s final offer, either on a package or an issue-by-issue basis, and analyze each approach’s effect on the chilling and narcotic effects.
This article focuses on another undesirable characteristic of interest arbitration – its ability to allow union and employer leaders to avoid accountability to their constituents. Using data from 2008-2012, the article finds support that, at least in hard times, parties negotiating in a right-to-strike legal regime tend to take responsibility for making the difficult decisions necessary to respond to the economic environment while parties negotiating under an interest arbitration legal regime are more likely to arbitrate and push responsibility off onto the arbitrator. The article contrasts legal regimes which approach interest arbitration as an extension of the collective bargaining process with those which approach interest arbitration as a quasi-judicial adjudication. It finds that the latter approach exacerbates the tendency of union and employer leaders to use interest arbitration as a means of avoiding accountability to their constituents.
Martin H. Malin,
Two Models of Interest Arbitration,
Ohio St. J. on Disp. Resol.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/742