In an effort to introduce CPER readers to some of the influential personalities in public sector labor relations, CPER Editor Carol Vendrillo talked to arbitrator Philip Tamoush about his lengthy career. Tamoush has been a well-known — and well-respected — mediator and arbitrator for nearly 30 years.
CV: So, Phil, how did you get started in this field?
PT: I got interested in labor relations while in graduate school at UCLA when I took a course in dispute resolution that concentrated on arbitration. That class was taught by John van de Water, a management consultant. Then, Paul Prasow lectured on collective bargaining, and I discovered my “love” for the peaceful resolution of conflicts of any kind.
After grad school, what came next?
In 1961, I started out as a personnel analyst with Los Angeles County, and fortuitously for me, Social Workers Local 535 decided to conduct one of the first major public sector strikes, in 1967. This led to the establishment of an employee relations division within the Personnel Department. Since I was the only person around with employee relations experience or an educational background in labor relations, I was chosen to be the division’s first staff person. I set up the files, sat in on negotiations — excuse me, “meet and confer” sessions — recruited new staff, and acted as liaison to the committee comprised of Ben Aaron, Howard Block, and Ben Nathanson, who wrote the Los Angeles County Employee Relations Ordinance.
However, after a stint as director of employee services in the County Social Services Department, it didn’t take me long to learn that being a management “shill” was not my cup of tea. And thank goodness, along came an offer from the UCLA Institute of Industrial Relations to develop training programs for public sector managers. This was at a time when a new era of bilateral employer-employee relations was emerging.
When did the arbitration practice develop?
While I was working at the UCLA IIR, I developed more rapport with managers and labor representatives, and I found myself moving towards the middle and was asked if I wanted to arbitrate disputes. Being (unofficially) mentored by Ben Aaron, Howard Block, Paul Prasow, Irving Bernstein, and Ed Peters, I decided the time was right in 1976 to try my hand as a self-employed neutral. (Of course, one of my other principal “mentors” for particular cases was and continues to be the most valuable editions of the Elkouri’s How Arbitration Works. This ‘gold standard’ in the field has carried me through many difficult cases.)
Fortunately, the Educational Employment Relations Board (later to become the Public Employment Relations Board) was just being established, and I entered the real world of collective bargaining on April 1, 1976, the same date the Educational Employment Relations Act covering school districts took effect. The EERB had to conduct unit determination hearings all over the state, so I was selected to serve as an “ad hoc” hearing officer at the same time that my arbitration and factfinding caseload was building up.
Your practice as a neutral certainly took off.
I taught public sector labor relations and dispute resolution at UCLA Extension and Cal State Dominguez, where I learned more and got better known. And I made it through that ugly first five years, when you either “make it or break it” as a neutral. Now that I am entering my 30th year in the field, I think I have made it — or, if I haven’t, I’ve spent a lot of time fooling an awful lot of people into thinking I am worthy of resolving their disputes!
So, how has labor relations changed since you started your career 20 or 30 years ago? And what do you see as the turning point?
First, I think the turning point was the increased public employee activisim of the 1970s, and management’s understanding of the importance of having their problems solved. The new attitude is that if the parties can’t resolve the problem, then they’re ready to get it resolved by an outsider and move on with the business at hand of providing public services or making products, etc.
Second,especially in the public sector, both management and employees (and their unions) now understand that it is better to resolve their own problems rather than rely on any “outsider.” These days, my personal caseload is much less public sector and much more private sector discipline cases than ever before. Perhaps the dramatic rise in the cost of dispute resolution — with advocates being lawyers, transcripts becoming routine, and arbitrator fees approaching those of attorneys — has something to do with it.
Looking back, what do you see as the most important development in labor relations?
That has to be the legislation and court decisions establishing and upholding the notion of final and binding grievance arbitration. This first occurred in the 1960s with the trilogy of Supreme Court decisions, and then in the 1970s when arbitration was further established by enactment of various public sector statutes and PERB decisions.
What type of work are you doing now? What is most rewarding?
About 75 percent of my work involves labor arbitration. I have expanded my practice to include some employment, commercial, and securities arbitration (for economic reasons), and automobile “lemon law”-type arbitration (for altruistic reasons). Also, I serve on several non-profit boards, locally and nationally. The most rewarding work involves the small company or public agency with a problem that might never have gotten resolved were it not for the involvement of an arbitrator. It truly is an honor to know that I am entrusted with such important and consequential decisions.
What are some of the most challenging or far-reaching decisions you have rendered?
Since I am one of those “run-of-the-mill” arbitrators with no particular expertise, I’ve really just had 30 years of "nuts and bolts” cases. There was an interest arbitration case almost 30 years ago where I essentially helped rewrite all the civil service rules from the typical unilateral document to a bargained-for instrument. The parties adopted most of my award and created a new set of civil service rules that continue to this day.
Another memorable case was that of a fellow who was the first male to dance with another male at one of the summer-evening Disneyland dances. He was a social worker and tried to make his orientation the focus of his probationary discharge. At the time, my decision was hailed in the newspapers as some sort of victory for "traditional” values, when it was really a simple decision about the guy’s employment rights!
Finally, egotistically, it was fun to see in an agency’s contract for several terms, reference to “the Tamoush formula” for setting caseload/workload. I can’t think of anything more far-reaching or memorable than these, although the parties themselves may have a different opinion.
Have you handled any interest arbitration disputes?
Yes, but I regret that the parties have reached the point of needing an outsider to actually set the terms and conditions of their employment. Factfinding and interest arbitration, for the most part, really do reflect a failure by the parties. That said , I believe that final-offer package arbitration is the best way to limit the arbitrator’s "innovations.” Again, as with grievance arbitration, it is the smallest public agencies that get the best use out of interest arbitration to help resolve the last one or two issues that keep the parties apart.
Where do you think the public sector in California is headed?
I think there will be a broader application of “interests” resolution techniques to deal with tightening the economic belt, such as binding arbitration of economic issues in police and fire agencies. The parties — and I think the legislature — would rather turn these disputes over to arbitrators since they don’t seem to be able to resolve the money issues themselves.
What other trends in arbitration have you seen in your career?
Based not only on my own experience and just reading through the Q&A and comments of arbitrators on various chat lists, it seems to me that we have gone way too far in emphasizing “technical competency,” rather than problem-solving. Sometimes the Internet comments read like a law course! My former boss at the UCLA IIR, Ben Aaron, was quoted recently in an article as agreeing that “…competence is less important than honor, integrity and character” in the makeup of an arbitrator. I agree. When presenting a case to an arbitrator with these qualities, it doesn’t take attorneys representing each side, verbatim transcripts, or lengthy briefs. And the parties will receive a reasoned decision that will be useful to them after one day of hearing, instead of three.
You’ve had a long-standing relationship with CPER. How did you first get involved with the program?
That’s easy. When I first worked for the Los Angeles County Employee Relations Commission, we heard about Dr. B.V.H. Schneider and a new project called California Public Employee Relations. Since we didn’t really know what we were doing, we asked Betty Schneider for help in our research. She worked with me for two or three years as we went through the development of the L.A. County Employee Relations Ordinance, the Meyers- Milias-Brown Act, and the special committee chaired by Ben Aaron to draft comprehensive state legislation for all segments of the public sector. Of course, the result was the “political animal” we now have, in terms of the MMBA and EERA, along with the Higher Education Employer-Employee Relations Act, the Dills Act, and the Agricultural Labor Relations Act, and so on.
Finally, what advice do you have for newcomers to the arbitration field?
Probably not to go into the field unless they are attorneys first. Then, make sure you have a lot of contacts with advocates who are willing to trust you as a “newby.” Make sure you have at least some other source of income for five years to get through the leaner times. It is my impression that there are far fewer grievances and other disputes being referred to outsiders. Not only is it an economic issue, but employees, unions, and management truly are trying to resolve issues themselves. They want to get along with each other and leave arbitration for major issues, such as terminations and unitwide interpretation cases. Newcomers just aren’t as needed as they were in the 60s and 70s.
I’d like to add that I’m thankful to the advocates who, over the years, have chosen me to resolve their difficulties. As one who espouses peaceful resolution of disputes in other forums besides arbitration — from "macro” problems, such as in the Middle East, down to the simplest landlord-tenant dispute — it is hard to believe that I have had the opportunity to be part of the solution, not the problem. Whether I have been selected as the “lesser of the evils” or because of my character and attitude, I have appreciated the opportunity to serve the parties. And, I hope to continue to be of assistance so long as there are advocates who have confidence that I can help them resolve their disputes.
Website: R. Silver, 2005