In the first lesson of the semester you were introduced to the purpose, history and importance of arbitration. This presentation will provide a partial overview of the actual process of preparing for, and engaging in an arbitration hearing as an advocate. Further parts of this process will be presented in the next lesson’s lecture.
By now you are well aware of the what arbitration is all about. You have had the opportunity to read, study and analyze a few arbitration decisions as part of your lesson assignments and currently for your semester project. To date we have sparingly touched on the process of an arbitration hearing. In order to get you inside a virtual arbitration hearing now we will look at the process and tactics that are used in arbitration. Let’s begin by refreshing our memories of what arbitration is about. Arbitration is a process of dispute resolution also known as Alternative Dispute Resolution (ADR). It is different from mediation. Arbitration is the process used to address a contractual grievance that was unsuccessfully resolved during the pre-arbitration steps of the grievance procedure. Arbitration is a process in which a third party neutral, an arbitrator, is selected to hear the evidence presented by each side, management and the union. The arbitrator after hearing and considering the evidence renders a decision also known as an award. This award is most often, depending on the contract, binding on the parties.
An arbitrator is empowered to only resolve the issue that is submitted to the arbitrator. The arbitrator’s authority is determined by the express terms of the agreement. The arbitrator can’t modify, amend, add, or delete contract language. Only the parties to the collective bargaining agreement have such authority. The arbitrator may only rule based on the actual contract language and the issues in dispute.
While it has been explained what arbitration is, it helpful to also point out what arbitration is not. It is not an employer procedure. It is not the employer’s policy creation. It is process negotiated and agreed upon by the parties as a result of collective bargaining. 2. It is not a court of law. While it may have a legal like look and feel the rules of a court do not apply. 3. It is not a state or federal administrative agency or forum such as the Department of Labor, EEOC, PERB etc. 4. Arbitration does not exist outside the Collective Bargaining Agreement. Unless the parties have agreed to arbitration as part of the collective bargaining agreement then an opportunity to arbitrate contractual disputes does not exist. Arguably, then such disputes in the absence of arbitration would be brought for in the form of a lawsuit. Of course this would require court action.
Simply put there are two goals in arbitration. First is to prove your case and disprove the case of the other side. In order to successfully prevail in arbitration it requires that both goals be achieved. This of course requires thoughtful, conscientious and meticulous preparation. It is necessary that an advocate know, to the extent possible, the other side’s case as much as their own. It requires preparing a successful strategy to present favorable evidence and a rebut unfavorable evidence.
Proving a case requires that the advocate know and understand the key evidence that will be used. This requires thorough investigation, research and analysis the key elements that will be used as evidence. The essential elements include the facts uncovered in the investigation, contract language, any law, rule, or regulation that supports the case. Other key elements that should be presented include the contractual intent of the parties that can be found in bargaining notes or contractual communication. Presenting evidence that supports past practice should never be overlooked. Previous arbitration decisions that dealt with the same or similar issues and establish precedent should be entered as favorable evidence. These examples are the more critical offers of evidence but certainly not the only ones.
Prior to arbitration the advocate should dot their I and cross their t. The advocate should have a thorough and confident understanding of their case. It is a best practice to re-evaluate all the facts. Sometimes an advocate will discover there are missing or confusing facts that require further consideration or follow-up. Since remedy is an essential element of the arbitrator’s award it is a good idea to re-evaluate the legitimacy and accuracy of the requested remedy. Before the hearing the advocate should re-interivew all witnesses and prepare them for their testimony. The grievance package will contain several documents by the time they are ready for introduction as evidence. The advocate should review all the documents, paying particular attention to the employer’s responses at the different levels of the grievance procedure. The advocate should request any additional information that is needed before the hearing not during it. As said earlier the advocate should look at the outcome of previous issues that are related to the present case.
The procedure for selecting an arbitrator is established by the collective bargaining agreement. Sometimes the parties have agreed in advance to a panel of arbitrators. In this case the arbitrators are likely listed in the contract itself and are, most often, rotated in order. However, many parties prefer to reserve the right to select an arbitrator from among 5-7 arbitrator names, along with their resumes, that are provided by an administrative agency such as the FMCS, AAA. Most often the parties are unable to mutually agree on an arbitrator form among those provided by the administrative agency. Under this circumstance the parties will select an arbitrator by alternately striking names until one arbitrator remains. The remaining arbitrator will hear the case. Striking names usually involves a process that requires a flip of the coin. The party winning the coin toss then strikes first. The first name struck is the arbitrator that party prefers least. Often that arbitrator is the preferred arbitrator of the other party. The process continues with the other party striking a name. Then the parties alternate the striking of names.
Preparation for the hearing requires that all information is gathered, organized, and assembled, preferably in a notebook. The advocate will identify their witnesses and know what they will say in the hearing. The advocate will prepare copies of all documents that will be introduced. This should include four copies. One of each for each party, the arbitrator, and for presentation to the witness. Most advocates will usually hold a pre-hearing conference to determine information and facts that can be jointly stipulated. Or in other words what the parties can mutually agree upon. Joint stipulations will be discussed in the next lesson.
A pre-hearing is routinely held by the arbitrator before the hearing commences on record. Examples of matters that are addressed include join exhibits, joint stipulations, definition or a framing of the issue, appearance and availability of the witnesses and general housekeepin issues. Each of these areas will be discussed separately.
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Defining, or as it is more technically known, “framing the issue” often is difficult for the parties to agree upon, in which case then it is left to the arbitrator to define or frame the issue. Framing the issue is put before the arbitrator to answer a question. The question is used to determine if the contract was violated. An example question may be as simple as: “Did the employer violate Article 1, Section A of the collective bargaining agreement?” This may seem like a reasonable question but the other party may want it framed differently. Such as: Did the employer comply with the terms of Article 1, Section A of the collective bargaining agreement? The issue statement is normally followed by a reference to remedy. For example it may as simple as: “Did the employer violate Article 1, Section A of the collective bargaining agreement? If so, what is the appropriate remedy?” The arbitrator would prefer the parties jointly stipulate to the framing of the issue. However most often each party will bring their own question to the table. The question will normally be framed form their perspective of what they will show in the hearing. It is best to agree on the question, to the extent possible, then to leave the question to the arbitrator. However sometimes the parties simply defer to the arbitrator’s judgment and agree to allowing the arbitrator to have jurisdiction over framing the issue.
Housekeeping matters that may be addressed in a pre-hearing conference may include when and where the hearing will be held, if it is not held on the same day as the pre-hearing conference. How the room will setup. Arbitrator’s sometimes arrive at a hearing dissatisfied with the meeting room and seating arrangements. Other matters will include the sequestering of witnesses and the allowance of observers.
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See the slide text This concludes this lesson lecture. Next lesson we will continue further examination of the hearing process. Next lesson student’s will have an opportunity as lesson assignment to rank and select an arbitrator from among a list of arbitrators based on their resumes.
Arbitration Process Overview
What is Arbitration?
A process of dispute resolution in
which a third party neutral (arbitrator)
renders a decision after a hearing at
which both parties have an
opportunity to be heard.
What can an Arbitrator do?
An Arbitrator is empowered only to resolve
the issues submitted. The scope of this
ability is defined by the collective
bargaining agreement (CBA), the issue as
defined by the parties, and law.
What Arbitration is not.
Not an employer procedure.
Not a court of law.
Not an state or federal administrative agency
Does not exist outside the CBA.
Goals in Arbitration
Prove the case.
Answer the other parties case
Law, rule or
Prior to Arbitration
Interview potential witnesses.
Review all documents.
Review relevant employer
Review previous related issues
Double Check the Case File
Selecting an Arbitrator
Collective Bargaining Agreement language is controlling.
Panel may be established
Federal Mediation and Conciliation Service (FMCS), American
Arbitration Association (AAA), State Mediation and Conciliation
Select an Arbitrator
Preparing Case for Arbitration
Gather all information needed to present case.
Identify witnesses and interview them. Know what they
will say in arbitration.
Make copies of all documents for arbitrator and for
Determine what information and facts can be stipulated in
conjunction with management.
Definition of Issue.
Appearance and Availability of Witnesses.
Joint exhibits are documents and other evidence
for which the parties agree that authentication
and foundation are not required.
Joint exhibits may be documents that are
contested in terms of weight and veracity.
Exhibits that are not joint may be introduced
separately by either party with proper
authentication and foundation.
Examples of Joint Exhibits
Collective bargaining agreement.
Relevant agency regulations, policies and orders.
Copies of statutory regulations.
Joint stipulations are facts that are agreed to by the parties.
An arbitrator cannot deviate from jointly stipulated facts and issues.
Parties cannot argue contrary to joint stipulations.
Reduces the complexity of the hearing.
Do not stipulate to damaging facts!
Examples of Joint Stipulations
Names, dates, events.
Agency actions and underlying intent.
Defining the Issue
Disciplinary cases: Do the facts support the
charges? If so, is the discipline appropriate? If
not, what is the remedy?
Contractual cases: Did the agency violate Article
XXX of the CBA when it . . . ? If so, what is the
Regulatory/statutory cases: Did the agency violate
XXX when it . . . .? If so, what is the appropriate
Jointly Stipulated v. Party Submission.
Room and set up.
Witnesses are generally
Arbitration consists of:
Stipulated facts and
Written evidence from
Final closing (oral and/or
Don’t fight with the arbitrator.
Don’t waste the arbitrator’s time
fighting with management.
You are there to convince the
arbitrator, not management.
Settlement may be negotiated at any
time until receipt of arbitrator’s
You know what you get!