Chapter 12 The Arbitration Process

3 Statutes Governing the Private Sector of arbitration of disputes

1. 1947 Labor Management Relations Act (LMRA) 2. 1926 Railway Labor Act (RLA) 3. 1925 Federal Arbitration Act/ United States Arbitration Act.

Three important issues evolved from LIncoln Mills and Steel workers Trilogy

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

Role of Arbitrators

1. Honor the intent of the parties 2. Interpret the agreement as a whole. 3. Give effect to all the terms of the agreement 4. Give undefined terms reasonable definitions. 5. Avoid absurd results by considering reason and equity.

Arbitration services

1. Maintain a roster of qualified arbitrators. 2. provide parties in CBA with list of experienced panels of arbitrators. 3. Appointing arbitrators following their selection by the involved parties.

Bureau of National Affairs testing criteria for disciplining an employee

1. adequate warning 2. prior investigation 3. evidence 4. equal treatment 5. Reasonable penalty 6. Rule of reason 7. Internal consistency

Five Principles to govern arbitration

1. arbitration is a matter on contract. Courts determine whether there is a duty to arbitrate 2. in determining whether there is a duty to arbitrate the dispute, courts do not examine the merits,even if frivolous. 3. In labor contracts with an arbitration clause, there is a presumption of arbitrability, unless there is a positive assumption that the clause is not susceptible to an interpretation that covers dispute. 4. As long as arbitration award is based on CBA court should enforce award without examining correctness. 5. In interpreting the agreement, arbitrator is not limited to the world of the contract. Must consider past practices, parol evidence, and common law.

Drug testing issues for arbitrator

1. does it violate contract. 2. testing reasonable 3. test itself fair 4. was there on the job impairment 5. can an employee be disciplined for refusing to be tested

General Qualifications of an Arbitrator

1. impartiality 2. integrity 3. Ability and expertise 4. legal training.

Management rights

1. mgmt. retains all rights not given up in contract. 2. mgmt. has absolute right to make technological improvements 3. right to eliminate job for efficiency if not arbitrary. 4. in absence of contract clause forbidding supervisors to do bargaining unit work, arbitrators find they can't do it if the bargaining unit is adversely affected.

Hearing Procedures of Arbitration of a Grievance

1. opening statements by initiating party, (company goes first if it is discharge or discipline) 2. Opening statement by other side. 3. Presentation of evidence, witnesses, and arguments. 4. cross examinations. 5. Presentation of evidence etc by defense 6. cross examinations by initiating party 7. Summation by initiating party 8. Summation by other side 9. Filing of briefs 10. The arbitrator's award.

Case preparation for arbitration

1. study original statement 2. examine the initiating grievance paper 3. review the CBA 4. Assemble all necessary documents and papers at hearing 5. plan in advance to visit site 6. Interview all witnesses 7. Make a written summary of each proposed witness's testimony. 8. study other side of case 9. Discuss your outline of the case with others in your organization 10. Read as many articles and published awards as you can on general subject.

Courts may be involved with arbitrability

1. temporary injunctions 2. court orders can compel to arbitrate 3. award is taken to court for review or enforcement unless parties are

Interest arbitration

A process used to resolve an impasse, in negotiations in which the parties submit the unresolved items to a neutral third party to render a binding decision. IMPASSE

Common law of the shop

A recognition of the bargaining history of those in the same industry to determine the respective rights of the parties involved in a labor dispute.

Frequent Sources of Arbitrators

American Arbitration Assoc. and Federal Mediation and Conciliation Services agencies.

General arbitrability

Courts enforce the principle that if contract provides for arbitration of grievances, then a grievance is presumed to arbitratible as long as the agreement does not exclude the topic under consideration

Parol evidence

Evidence that is not contained within the four edges of the collective bargaining agreement and therefore is outside the parameters of an arbitration proceeding.

Contractual Issues

General issues, seniority, economic wage rates and pay issues, fringe benefits issues, discharge and disciplinary issues, technical issues, scope of agreement, arbitrability of grievances,

Supreme Court ruling on Arbitration

If parties labor agreement requires arbitration, then it will be difficult to avoid.

Arbitration in public sector

Legislation that allows public sector bargaining but prohibits strikes often details the procedures available to resolve an impasse

Supreme court Limits on Arbitration

Limited to interpretation and application of the collective bargaining agreement

Green Tree Financial Corp. v. Randolph

Plaintiff claimed arbitration clause did not say cost, she was precluded from pursuing statutory claim because she did not know the cost.

Alexander v. Gardner Denver

Public policy exception to labor arbitration, statutory right of individual addressed in arbitration, individual cannot be precluded from suing under civil rights laws.

Just Cause

Sufficient or proper reasons which management has the right to discipline or discharge employees

Expired contracts or changes in ownership

Supreme Court ruled that duty to arbitrate can extend beyond life of contract, the issue must have happened before expiration

Successorship

Supreme Court ruled that successor employer is not required to adapt the substantive terms of predecessor but inherits the contractual duty to arbitrate as long as there is substantial continuity between old and new.

Gilmer v. Interstate Johnson Lane Corp

Supreme Court upheld compulsory arbitration of an age discrimination claim under an employee signed employment agreement.

Circuit City v. Adams

Supreme court ruled that FAA only should exclude transportation, party does not forgo substantive rights

Arbitrator's award

The arbitrator's decision in a grievance case, presented in a written format and signed by the arbitrators

Arbitrability

The challenge of whether a disputed issue is subject to arbitration under the terms of the contract

RIghts arbitration

The submission to arbitration for the interpretation or application of the current contract terms. In grievance cases, the arbitration involves the rights of the parties involved under the terms of the contract. CONTRACT

Arbitration

a process in which the parties involved agree to submit an unresolved dispute to a neutral third party, whose decision is final and binding.

Past Practice

a recognition of the history of the two parties involved in a dispute to determine their respective rights in arbitration

Interest arbitration in public sector

allows panel to make a final and binding decision on a negotiation dispute and used in public sector to resolve an impasse.

Tripartite arbitration board

an arbitration board composed of one or more members representing management, an equal number representing labor and a neutral person who serves as chairperson.

Arbitrator's opinion

an arbitrator's written statement discussing the reasons for the decisions on the case

Arbitration procedures

based on the wishes and needs of the parties involved to the extent possible within the judgment of the arbitrator.

Drug testing issues

chain of custody must be correct and test after all accidents

Republic Waste Services

contract was expired when employee was fired and there was no retroactivity clause, so arbitration was not valid

Arbitration process

is more private and therefore unique to the parties, as compared to public judicial process

Fact finding and advisory arbitration

more successful in public than private sector because of political pressure.

arbitrators

must usually have an education, lawyers or judges.

Job posting & bidding

posted in 3 days, fill it in 10 days

Federal Arbitration Act

preempted state laws in this area.

Wright v. Universal Maritime Service Corp.

ruled the arbitration provision did not contain a clear and unmistakable waiver of the employees right to pursue his antidiscrimination claim in federal court.

rights arbitration in public sector

same as in private sector.

rules of evidence

strict legal rules of evidence are not usually observed unless expressly required by the parties

Double Jeopardy

two penalties for the same offense.