Thursday, October 29, 2009
In Praise of Collaborative Answers
He lists several, including the daily wear-and-tear of living with a siege mentality, the real damage that idiotic decisions can do before they get reversed, and the cost (in time and money) of litigation and/or open conflict. (These arguments also apply to union leadership, for all the same reasons.) I'll add another: the wild card of third party solutions.
In many cases, discussions that don't get resolved internally get referred first to mediation, which isn't binding, and then (if that doesn't work) to arbitration, which is. While arbitration can settle a given question, it's usually a little like using a shotgun to kill a mosquito: it works, but there goes the living room window.
When The Administration and The Union discuss an issue, they both (usually) have at least some sense of what's involved in it. Much of that won't have to be spelled out, since it's common knowledge. But when a third party comes in from the outside, empowered to settle the question, the ever-present danger is that the settlement will inadvertently go far beyond the issue at hand. And if it does, both sides will be stuck with it.
That usually happens with the arbitrator invokes some sort of principle or general rule behind the decision. In a large and complex system with layers of history, statements tend to have ripples of meaning far beyond the intention (or even knowledge) of the speaker. That's why it's so maddeningly hard to pin down a single interpretation of a contract. Implementing a contract involves far more than simply reading it and trying to follow it; if it were that easy, we'd all be much better off. It also involves "past practices," past grievances, past settlements, and different interpretations of words like "reasonable" or "customary" or "terms and conditions." I've had people flip out when I've used the word "program" when I should have said "initiative." ("That's an initiative, you jerk! Since when did that become a program? Has it been vetted through the program review process?" Honestly, life is too short, but I've actually had this conversation.) And heaven help the poor soul who refers to "student affairs" instead of "student services," or vice versa.
Language is a minefield for people who live with it every single day. Bring in an outsider whose knowledge is pretty much limited to single presentations by opponents, and I'd be surprised if she didn't set off a few landmines without even knowing it.
I read once that part of the reason that most criminal cases are plea bargained is that juries are just too hard to predict. Now imagine if jury verdicts carried the force of precedent.
Smart administrators who are lucky enough to have smart union leadership will seize the opportunity to work things out between them whenever possible, even if it sometimes means swallowing a little more than they think they should have to. A bad agreement can be revisited, but a bad arbitration settlement is forever.
In the interest of long-term keeping the school clear of the buildup of past practices, etc., what would happen if there was a rule that every so often, some issue was sent directly to arbitration? It doesn't have to be an issue that is currently creating problem, and for this purpose it might be better if it weren't a current topic of interest.
Basically, the knowledge that there will be arbitration, and that it could touch on unexpected areas, would be an incentive for both sides to minimize the sorts of ad-hoc infrastructure that is most vulnerable to becoming an accidental casualty.
As everyone gets used to thinking in those terms it should start to filter out into wider use, and eventually you should end up at the point where in most cases, people show up having already though through most of the relevant rules and precedents, and eager to get them out in the open so they can be acknowledged and incorporated into the final decision, thus preserving them from becoming an unknown casualty of future arbitration.
Both Dean Dad and I use "if" -- as in "if" both sides are both rational and see it as more fruitful to address many disagreements collaboratively. Sometimes the disagreements are not resolvable given the interests at stake and need outside parties. Sometimes the disagreements are theoretically resolvable and one or both parties decide to avoid resolving it for one or more reasons. Sometimes one party decides to take an issue to arbitration that they know they're likely to lose because a key person on that side has already staked out a position and crawling back from that is problematic. Sometimes one party makes strategic choices that may seem irrational to the outside. And sometimes one party really is just screwing things up. And sometimes it's hard to tell which is which until a year or two down the road.
Anonymous: states have different statutory limits on the maximum length of a collective bargaining agreement, but whenever it ends, technically either party can reopen an issue and propose to change it. Sending random issues to binding arbitration is a waste of resources if both sides are satisfied with the provision of the contract.