If Yale wants, it could avoid ever seeing another strike

The unions tried to end the strike before it even started. As representatives of locals 34 and 35 sat down with Yale administrators in Woodbridge Hall this past August for yet another session of negotiations, Yale’s unions proposed that both parties submit to binding arbitration. Just as they had done during a similar session in 1988, union leadership presented a mediation procedure in which both parties call upon the services of a neutral party to finally reach a resolution. And the University, just as it had done in 1988, immediately rejected the proposal. “Yale has made clear to the unions for over two decades that the University would not participate in binding arbitration,” the University said on its negotiations Web site. “There is no good reason why the excellent contract offered by the University cannot be the foundation for an agreement reached by the University and the unions themselves at the bargaining table.” Now, one month later, after professors, students, presidential candidates, union supporters and union critics have urged the University to agree to mediation by a third party, Yale continually refused to submit to the judgment of an impartial arbitrator.

As the University rejected the unions’ proposal, they asserted that mediation is an unacceptable means to settle the dispute because binding arbitration is exactly how it sounds — arbitrary. Yet binding arbitration intends the exact opposite — it is a reasoned judgment reached by an impartial judge after hearing both sides of the dispute. In November 1990, the U.S. Congress passed legislation that not only authorized but encouraged federal agencies to use Alternative Dispute Resolution (ADR), which includes the idea of binding arbitration, to reduce the growth of litigation as well as provide a forum for creative solutions to employer-employee disputes. Arbitrators in procedures such as binding arbitration are experts in employment law and make determinations based on the law without the use of a jury. In enacting the legislation, Congress expressed the growing belief that ADR can serve as a less contentious, laborious and costly process than a courtroom proceeding.

In the past decade, ADR has been resorted to by an increasing number of both public and private employers across the country. While dispute resolution Web sites such as clickNsettle.com are emerging, law students are being trained to represent clients who choose to enter into mediation rather a courtroom. As Jennifer Brown, professor at Yale Law School and the director of the Yale-Quinnipiac Dispute Resolution Workshop, said, “Alternative Dispute Resolution is what’s happening in the justice system.” In 1992, the Department of Labor organized a pilot program in Philadelphia to test the effectiveness of ADR. Of the 27 cases brought before the ad hoc commission, 22 were settled. Of those 22 organizations, none have seen a walkout since the mediation in 1992.

When Yale rejected the unions’ proposal to turn to binding arbitration, they stated that the idea of involving a third party in an internal dispute is senseless. “An arbitrator has no stake or interest in the University and its employees,” the University stated on its Web site, “and could not be expected to know fully the long-term consequences of any settlement he or she would impose.” Yet the involvement of an unbiased third party is the very basis of alternative dispute resolution. When it challenged the foundation of binding arbitration, the University also challenged the legal sensibility that disputing parties benefit immensely from the intervention of an impartial judge. And while negotiations between Yale and its unions may not be taking place in the courtroom, it is difficult to deny the parties’ established right to an arbitrator that does not have an “interest in the University and its employees.” As legal theorists have long stated, justice, both legal and otherwise, necessarily includes impartiality.

The University may very well believe that the reenactment of a courtroom proceeding is not what is needed to reach a settlement. Furthermore, as the University has also said, arbitration is not employed in the private sector as often as it is used in the public sector. The Federal Act of 1990 only encourages the use of arbitration in the public sector, where workers often do not have the right to strike. However, Yale’s notorious history of strained labor relations suggests that they are a special case, and in need of special help. The strike this past fall followed a long series of walkouts by Yale workers. Yale was witness to the dissent and strikes of its workers in 1968, 1971, 1974, 1977, 1984, 1996 and today in 2003. From both a labor as well as a managerial point of view, the University must find a way to put an end to its continuing shutdowns.

History has shown that even after a settlement, this fall’s strike will be followed by further labor strife. Any agreement reached between Yale and its workers on the bargaining table will leave lingering bitterness and will also be reached under intense pressure from students, parents, administrators, professors and workers alike. Yale’s failure to provide a settlement that satisfies its workers’ needs for a sustained period of time only strengthens the need for a impartial arbitrator. A decision reached under binding arbitration would provide a resolution that carries greater legitimacy for both the parties involved as well as members of the community.

Had the University agreed to binding arbitration last spring, workers would not have had to lose a day of wages and students would not have had to cross picket lines to attend their classes. Furthermore, the power of a decision reached by binding arbitration would have provided not only a conclusion to an unfortunate chapter of Yale’s labor history but it would also set a precedent for future conflict. Binding arbitration would have provided a form of closure to the endless debate between union leadership and the University that we have witnessed through strikes at Yale for the past three decades. Just as the unions proposed a month ago, we need binding arbitration to end the strike now. And as we may be approaching a settlement, we still need binding arbitration to ensure that Yale does not have to endure a strike again.



Benita Singh is a senior in Branford College.

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