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Offers of Leniency

Jun 16, 2017
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Offers of Leniency

At a recent conference, two well-known labor arbitrators answered audience questions on settlement offers/talks:

Settlement Talks are not Admissible An audience member explained what happened in a case. At step 3, the parties negotiated a last chance agreement, but the grievant refused to accept it. He told the union advocate:  I’d rather take my chances in arbitration.

The union acceded and took the case to arbitration. At the hearing, the union advocate wanted to let the arbitrator know:  1.  The company was willing to take him back at step 3. The LCA settlement is proof of that.  2.  No matter what you think about this case, the union should, at the least, get conditional reinstatement (an arbitrator-imposed LCA).

Answer:  Both arbitrators will not take this argument into account. Nor will they accept evidence about the settlement talks. And if it does come up, they will not consider it when they decide the case.

There are sound policy reasons for this. No one would engage in settlement talks if they knew their statements or positions would become evidence before the decision-maker. Similarly, it is doubtful that management would ever offer a compromise if they knew it would become evidence or used against them by the other side.

As can be seen from the responses, offers of leniency, if rejected, typically cannot be used as evidence in arbitration. It is important to remember not to reject an offer of leniency thinking that you are guaranteed to get no less than the offer in arbitration. Once rejected, all bets are off.