Chapter Twelve

The Federal Arbitration Act and Individual Employment Agreement: 3 Governing Acts

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

Just Cause

- Adequate warning - Prior Investigation - Evidence - Equal treatment - Reasonable penalty - Rule of reason - Internal consistency

Demand for rights arbitration

- Based on the wishes and needs of the parties - Arbitration process is more private than public judicial proceedings - Involves more sophisticated and knowledge parties than those in most judicial proceedings

If one party challenges arbitrability

- Courts get involved - 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

Interest arbitration violates principle of bilateral settlement of collective bargaining issues

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

Title VII Cases

- Grievant who loses an EEO matter in arbitration entitled to take the matter to court

Arbitration Issue: Fringe Benefit Issues

- Health and welfare - Pensions - Discharge and disciplinary issues

Interpretation of contract is guided by basic principles

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

General Qualifications

- Impartiality - Integrity - Ability and expertise - Legal training

Arbitration Issue: Technical Issues

- Job postings and bidding - Job evaluation - Job classification - Scope of agreement - Subcontracting - Jurisdictional disputes

In sum, the Supreme Court

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

Office of Arbitration Service

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

Factors Considered by Arbitrators

- Past practices - Parol Evidence - Common Law of the Shop

Arbitration Issue: Seniority

- Promotion and upgrading - Layoff bumping and recall - Other seniority - Working conditions - Discrimination - Management rights - Scheduling of work - Work Assignments

Advantages of Arbitration

- Saves time and expenses - More informal than court - Final/binding decision - Familiar within the industry - Courts uphold the arbitrator' position

Case Presentation

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

Variables that affect the arbitrator selection include:

- Visibility - Past arbitration decisions - Use of procedural/interactional justice methods

Arbitration Issue: Economic Wage Rates and Pay issues

- Wage issues - Overtime pay

Hearing Procedures

1. An opening statement by the initiating part 2. An opening statement by the other side 3. The presentation of evidence, witnesses, and argument by the initiating party 4. A cross-examination by the other side 5. The presentation of evidence, witnesses, and arguments by the defense 6. A cross-examination by the initiating party 7. A summation by the initiating party (optional) 8. A summation by the other side (optional) 9. Filing of briefs (optional) 10. The arbitrator's award

Three Important Issues Have Evolved from the Lincoln Mills and Steelworkers Case

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

Double Jeopardy

A concept borrowed from criminal law for the principle that a person cannot be punished twice for the same offense based on the same conduct

Ability and Expertise

A labor-management arbitrator should have a broad background of social and economic expertise

Lincoln Mills Case

A landmark decision in which Supreme Court ordered an employer to arbitrate grievances as provided for in a collective bargaining agreement, stating that an employer's agreement to arbitrate grievance disputes was trade-off for the union's agreement not to strike

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

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

Past Practice

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

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 the labor dispute

Most arbitrators selected on an

Ad Hoc Basis

Tripartite Arbitration Board

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

Arbitrator's Opinion

An arbitrator's written statement discussing the reasons for the decision in the case

Integrity

Arbitrator required to disclose any association or relation that might reasonably bring any doubt to his or her objectivity

Impartial agency is generally the source of the

Arbitrators

Examples of Arbitrator's Award

Back pay and reinstatement of job or benefits

Arbitrator's jurisdiction evolved from the

Collective Bargaining Agreement

Steelworkers Trilogy

Court's power is limited to where parties have agreed to arbitrate courts should not weigh the merits of the case

Lincoln Mills Case

Courts should enforce collective bargaining agreement

Warrior and Gulf Case

Declared the congressional policy in favor of settlement of disputes through arbitration restricts the judicial process and strictly confines it to questions of whether the reluctant party agreed to arbitrate the grievance in the collective bargaining contract

Prior Investigation

Did management investigate the case before administering discipline?

Evidence

Did the investigation produce substantial evidence or proof of guilt?

Parol of Evidence

Evidence that is to contained within the four edges of the collective bargaining agreement but which may be considered by the arbitrator to interpret terms of the agreement and find or clarify ambiguities within the agreement

General Arbitrability

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

Adequate Warning

Is the employee given adequate, oral, or printed, warning as to the consequences of his conduct?

Selecting the Arbitrator

Labor and management have a hand in the selection and compensation of the arbitrator

Legal Training

Labor-management arbitrators are often lawyers, legal training may help an arbitrator to be objective and analyze and evaluate facts without a personal bias

Roles of the Arbitrators

Must follow contract language when the intent of the provision is clear

Qualifications of the Arbitrators

Not required to have any specific educational or technical training; have a variety of backgrounds

Permanent Umpire

Resolve disputes for the life of a contract and helps to provide a stable union-management relationship

The arbitrator's roles is not unlimited

Role limited to interpretation and application of the contract

Successorship

Successor employer not required to adopt the substantive terms of the predecessor's agreement

Just Cause

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

In grievance cases

The arbitration involved the rights of the parties involved under the terms of the contract

Impartiality

The arbitrator is expected to divest himself or herself from personal inclinations during the arbitration, even if he or she decides cases according to his or own judgement

Arbitrator's Award

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

Rigths Arbitration

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

Arbitrability

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

Rights (Contract) Arbitration

The submission to arbitration for the interpretation or application of current contract terms

Steelworkers Trilogy

Three 1960 Supreme Court rulings that upheld the grievance arbitration process and limited judicial intervention

Expire Contracts or Changes in Ownership

U.S. Supreme Court rile that the duty to arbitrate can extend beyond the life of the contract

Internal Consistency

Was management enforcement of the rule or procedure consistent?

Reasonable Penalty

Was the penalty reasonably related to the seriousness of the offense and the past record of the employee?

Rule of Reason

Was the rule or order reasonably related to efficient and safe operations

Equal Treatment

Were all employee judged by the same standards, with rules equally applied?

Roles of the Arbitrators

When the language is ambiguous, arbitrator must interpret the provision in question