Ch. 12 - The Arbitration Process

What are the 2 governing acts for individual employment agreements?

- 1925 Federal Arbitration Act (FAA) - 1926 Railway Labor Act (RLA) - 1947 Labor Management Relations Act (LMRA)

Title VII cases

- A Grievant who loses an EEO matter in arbitration is entitled to take the matter to court - Wright v. Universal Maritime Service Corp.: If a collective bargaining agreement arbitration provision "clearly and unmistakably" includes anti-discrimination claims, the Court might require an employee to arbitrate such a claim before resorting to the federal court

In the public sector Interest arbitration violates the principle of bilateral settlement of collective bargaining issues, which in turn:

- Discourages parties from making concessions - Frequently, award is a compromise between parties' final positions - Proponents believe this is an incentive to negotiate

Tripartite arbitration board (the tribunal)

- Equal membership of labor and management - A neutral member who serves as chairperson - Majority award of the board is final and binding - Additional time and expense are incurred with a board - Chair has unique role to keep others informed, outline issues

What impartial agency's are generally the source of arbitrators?

- Federal Mediation and Conciliation Service - American Arbitration Association

Commonly arbitrated issues include:

- General Issues: Distribution of overtime, Compulsory overtime, Other overtime - Seniority Issues: Promotion and upgrading, Layoff bumping and recall, Transfer, Other seniority, Union officers, Strike and lockouts, Working conditions, Discrimination, Management rights, Scheduling of work, Work assignments - Economic Wage Rates and Pay Issues: Wage issues, Rate of pay, Severance pay, Reporting, call-in and call-back pay, Holidays and holiday pay, Vacations and vacation pay, Incentive rates and standards, Overtime pay - Fringe Benefit Issues: Health and welfare, Pensions, Other fringe issues - Discharge and Disciplinary Issues - Technical Issues: Job postings and bidding, Job evaluation, Job classification - Scope of Agreement Issues: Subcontracting, Jurisdictional disputes, Foreman, supervision, etc., Merger, consolidations, accretion - Just Cause: Sufficient or proper reasons for which management has the right to discipline or discharge employees. Adequate warning, Prior investigation, Evidence, Equal treatment, Reasonable penalty, Rule of reason, Internal consistency - Drug Testing Issues: Does the drug testing procedure violate the contact? Was the testing of employee reasonable? Was the test itself unfair? Was there on-the-job impairment? Can an employee be disciplined for refusing to be tested?

An arbitrator's interpretation of a contract is guided by what basic principles?

- Honor the intent of the parties - Interpret the agreement as a whole - Give effect to all terms of the agreement - Give undefined terms reasonable definitions - Avoid absurd results by considering reason and equity

Circuit City Stores Inc., v. Adams

- Individual employees agreed to settle all claims against the employer by means of arbitration - Grievant filed employment discrimination lawsuit - Supreme Court ruled that the complaint must be heard by an arbitrator - Employment arbitration agreements have increased as a result of the Circuit City ruling

What are the 2 types of arbitration?

- Interest Arbitration - Rights (contract) arbitration

Rights (contract) Arbitration

- Involves interpretation of existing contract terms - Found in almost every labor agreement - Based on the wishes and needs of the parties - Arbitration process is more private than public judicial proceedings - Involves more sophisticated and knowledgeable parties than those in most judicial proceedings

Mediation

- Its an informal way to guide parties to a amicable resolution - Mediation is done to avoid the hassle and expense of litigation

Management rights not expressly discussed in contract:

- Management retains all rights not given up in the contract - Management generally is conceded to have absolute right to make technological improvements, even if some workers are adversely affected, unless contract restricts management rights in this area - Company has the right to eliminate a job for efficiency, if not an arbitrary act - Supervisors cannot do bargaining unit work

In what way might the courts get involved in determining arbitrability?

- May grant an injunction - May issue court order to arbitrate - Arbitrability may be considered if an arbitrator's award is submitted to a court for review

What is the role of the Arbitrator?

- Must follow contract language when the intent of the provision is clear - When the language is ambiguous, arbitrator must interpret the provision in question - A Well-reasoned arbitrator's opinion may become part of the contract

What are the qualification requirements for arbitrators?

- Not required to have any specific educational or technical training, and may come from a variety of backgrounds - General qualifications: Impartiality Integrity Ability and expertise Legal training

Interest Arbitration

- Occurs when a labor contract does not exist or when a change is sought - Used infrequently - Few parties are willing to allow a neutral third-party to set the terms of the labor agreement - Arbitrators tend to "split the difference," thereby causing parties to take more extreme positions

Federal Mediation and Conciliation Service

- Office of Arbitration Services - Maintains a roster of qualified arbitrators - Provides the parties with a list of arbitrators - Appoints arbitrators following selection by the parties

Alexander v. Gardner-Denver

- Public policy exception to labor arbitration - Court ruled that an individual could not be precluded from suing under Civil Rights laws just because his claim had gone through arbitration under the collective bargaining agreement

Arbitration Case Preparation Includes:

- Study grievance statement and review its history - Examine initiating grievance paper - Review labor agreement - Assemble documents - Plan arbitrator trip to plant - Interview all witnesses - Written summary witness testimony - Study other party's case - Discuss case - Background reading

Fact finding and advisory arbitration more successful in public sector because of

- Unbiased third party examines the impasse before issuing findings and recommendations - Legality of allowing a third party to set the terms of the contract has been questioned

What is an arbitrator?

- decision is legally binding - Impartial 3rd party receives evidence and hears both parties argue their position. - The 3rd party reviews the material, hears testimony and statements, and then submits an award or decision

What is a mediator?

- decision is non-binding - Impartial 3rd party helps to work out dispute in a amicable manner - The 3rd Party provides recommendations, suggestions, guidance, and opinion

What are the 2 role models that have been developed for arbitrators?

- judge or umpire - mediator or impartial chairperson

What factors are taken into consideration when deciding to arbitrate a grievance?

- merits of the case - importance of the issue - effect of winning - effect of losing - possibilities of settlement - psychological (face-saving) aspects

What variables may affect arbitrator selection?

- visibility - past arbitration decisions - use of procedural justice methods

What are the Five principles that govern arbitration?

1. Arbitration is a matter of contract 2. Duty to arbitrate not influenced by the merits of the underlying grievance 3. Presumption of arbitrability unless the contract contains an explicit exclusion of the issue under dispute 4. Courts should enforce arbitration award without examining its correctness 5. Arbitrator's award not limited by the words of the contract - Past practice - Parol evidence - "Common law of the shop"

What are the 4 steps in the Arbitrator selection process?

1. At the request of management and labor, a tribunal sends a list of proposed arbitrators 2. The parties are given 7 days to study the list, cross off unacceptable names, and rank the remaining names 3. Additional names may be submitted to parties if no mutually acceptable names are identified 4. If parties cannot agree on a mutually acceptable name, the tribunal will make an administrative appointment

What are 3 issues that resulted from the decisions of the Lincoln Mills and the Steelworkers Trilogy

1. General Arbitrability 2. Expired contracts or changes in ownership 3. Successorship

In Lincoln Mills and the Steelworkers Trilogy the Supreme Court did what 2 things:

1. Made it difficult to avoid arbitration if the contract requires the arbitration of grievances 2. Acknowledged the superiority of arbitration in resolving labor-management disputes under collective bargaining agreements

What are the steps in a hearing procedure?

1. The arbitrator fixes the date of the hearing after consulting with both sides and makes necessary arrangements. 2. Opening statements of each party 3. Rules of evidence 4. Assessing credibility of witnesses 5. presenting documents 6. examination of witnesses 7. summation 8. Arbitrators award and opinion

General Arbitrability

A grievance is presumed to be arbitrable as long as the contract provides for arbitration and does not exclude the topic under consideration

Successorship

A successor employer is not required to adopt the substantive terms of the predecessor's agreement -- BUT the Successor nonetheless inherits contractual duty to arbitrate as long as there is "substantial continuity" between old and new companies - If based on contract interpretation, arbitrators' decisions should not be questioned by courts

Green Tree Financial Corp.-Alabama v. Randolph

Court ruled that a party seeking to avoid an arbitration agreement must demonstrate the likelihood of prohibitive costs, not just the possibility

True or False: Management only has a hand in the selection and compensation of the arbitrator.

False; both Labor and Management have a part in the selection process

A mediators decision is _______________, while an arbitrators decision is __________________.

Mediator: non-binding Arbitrator: binding

What did the Lincoln Mills Steelworkers Trilogy do?

Provided the legal foundation for arbitration

Opening statement of each party

Step 1 in arbitration hearing procedures - Lays groundwork for testimony of witnesses - Should clearly identify the issue, indicate what is to be proved, and specify the relief sought

Rules of Evidence

Step 2 in arbitration hearing procedures - Strict legal rules of evidence usually not followed - Arbitrator determines how evidence will be presented

Presenting Documents

Step 5 in arbitration hearing procedures - Sections of collective bargaining agreement that pertain to the grievance - Photographs, videos, other visual aids can be used

Examination of Witnesses

Step 6 in arbitration hearing procedures - Both direct- and cross-examination of witnesses

Summation

Step 7 in arbitration hearing procedures - Both sides given equal time for closing statements - Each side emphasizes relevant facts and issu

Arbitrators Oppinion

Step 8 in arbitration hearing procedures - separate from the award - Statement of the reasons for the decision - Well-reasoned opinion can contribute greatly to the acceptance of the award

Arbitrators Award

Step 8 in arbitration hearing procedures - usually short, presented in written form, and signed by the arbitrator—may include money back pay, reinstatement to former position

True of False: As long as it is based on interpretation of the contract, arbitrator's decision should be final and binding

True

True or False: The duty to arbitrate can extend beyond the life of the contract (i.e. expired contract or changes in ownership)

True

In Assessing credibility of witnesses the arbitrator serves as_________.

both the judge and jury.

If one party challenges whether a matter is arbitratable the _______ may get involved.

courts

Having an arbitrator selected as a permanent umpire to resolve disputes for the life of the contract is beneficial because ____.

it helps to provide a stable union-management relationship.

An Arbitrator's _________ evolves from the contract negotiated by the labor and management.

jursidiction

The arbitrators role is _________ to interpretation and application of the contract. The arbitrator _________ sit to dispense his own brand of industrial justice.

limited does not

In public sector _______ is provided for in most states with collective bargaining as a means to resolve a dispute.

mediation

How are most arbitrators selected?

on an ad-hoc basis

In the Public Sector legislation _______ collective bargaining, but ________ strikes.

permits prohibits

In public sector, rights arbitration stated that:

the authority of the arbitrator in rights arbitration is limited by the terms and conditions of the collective bargaining agreement

What is double jeopardy?

two disciplinary actions or penalties for the same offense