For the student of MBA

1. ARBITRATION
Presented by-
Ayisha Kowsar A
MBA

2. Arbitration

3. 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.

4. 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.

5. What Arbitration is not.
• Not an agency procedure.
• Not a court of law.
• Does not exist outside the CBA.

6. Union Goals in Arbitration
Prove our case.
Answer the
agency’s case.

7. Proving Our Case
• Facts.
• Law, rule or regulation.
• Parties’ intent.
• Past practice.
• Practice of other units within Agency.
• Equity.
• Arbitration precedent.

8. Prior to Arbitration
• Re-evaluate facts.
• Re-evaluate any threshold issues.
• Re-evaluate remedy requested.
• Interview potential witnesses.
• Review all documents.
• Review relevant agency policies, orders and regs.
• Request information and review agency response.
• Review previous related issues and facts.
• Fulfill any bylaw requirements.

9. Selecting an Arbitrator
• Collective Bargaining Agreement language
is controlling.
• Past Practice.
• Contact the Federal Mediation and
Conciliation Service (FMCS) for a panel of
arbitrators at www.fmcs.gov.

10. Selecting an Arbitrator
• Review arbitrators qualifications and their
biographical sketches; ask for some written
decisions.
• Review list with NFFE National.
• Choose arbitrator in accordance with the CBA.
• Notify the FMCS of arbitrator selection.
• Arrange hearing date with arbitrator and mgmt.

11. Pre-Hearing Conference
• Joint Exhibits.
• Joint Stipulations.
• Definition of Issue.
• Appearance and Availability of Witnesses.
• Housekeeping.

12. Joint Exhibits
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.

13. Examples of Joint Exhibits
• Collective bargaining agreement.
• Grievance package.
• Relevant agency regulations, policies and
orders.
• Copies of statutory regulations.

14. Joint Stipulations
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!

15. Examples of Joint Stipulations
• Names, dates, events.
• Past practice.
• Agency actions and underlying intent.
• Issues.

16. Issue Definition: Lessons Learned
• Question format.
• Request remedy.
• Do not deviate from existing language.
• Jointly Stipulated v. Union Submission.

17. Housekeeping
• When and where.
• Room set up.
• Scheduling requirements (official time).
• Equipment (telephone, flip chart, computer).
• Sequestering witnesses.
• Recorder/stenographer ($$$).
• Observers.

18. Arbitration Hearing
• Formal hearing. Witnesses are generally
sworn in.
• Arbitration consists of:
– Opening statement
– Stipulated facts and documents
– Written evidence from each party
– Witness testimony
– Final closing (oral and/or written)
• Party with burden of proof presents first:
– In personnel actions, including discipline, the
Agency presents case first.
– In other cases, the Union presents case first.

19. Witnesses
A witness must be qualified,
straightforward, and credible.

20. Interviewing Witnesses
• Interview early and before the hearing.
• Prepare questions.
• Review documents.
• Discuss weaknesses in testimony.
• Discuss possible cross examination .
• Ethics.

21. Guidance for Witnesses
• Answer the question asked.
• Do not volunteer information!
• “I don’t know.”
• Be alert.
• Be courteous.
• Talk to the arbitrator.
• How to handle objections.

22. Direct Examination
• Have your witness introduce him/herself:
– Name and address.
– Employment, past and present.
– Basis of knowledge of the grievance.
• Note: Expert witnesses must be qualified
as such before testifying.
• No leading questions.

23. Documents
A document must
be in the record
to be considered.

24. Preparing Documents for the Record
• Read it. All of it!
• Label it.
• Who will introduce it?
• What will they say about it?
• Anticipate cross-examination.

25. Handling Objections
• Relevancy.
• Hearsay.
• Foundation required
• Assumes facts not in evidence.
• Witness qualification.
• Testimony based on excluded evidence.
• Surprise/bad faith.
• “Asked and Answered.”

26. The Goals of Arbitration
Prove your case.
Answer your opponent’s case.

27. Answering Management’s Case
• Unclear testimony from agency witnesses.
• Incomplete testimony.
• Contradictory testimony.
• Hearsay or opinion.
• Introduction of new evidence.

28. Common Errors in Case Presentation
• Relying on minimum facts and maximum
argument.
• Concealing facts and distorting truth.
• Delaying through legal technicalities.
• Failing to cooperate with the arbitrator.
• Disregarding decorum and courtesy.
• Being argumentative with the other party.

29. Closing Statement
• In lieu of a post-hearing brief.
• Review facts presented.
• Respond to points against your case.
• State the Agency’s case and how evidence fails
to support Agency’s suggested outcome.
• Restate the issue and remedy sought.
• Argue for your outcome.
• Cite previous decisions.

30. Standards Applied in Contract
Interpretation Cases
The Union bears the
burden of proof.

31. Standards Based on Contract Language
• “Clear and Unambiguous.”
• Specific language vs. general terms.
• The agreement construed as a whole.
• Normal and technical term usage.

32. Standards Going Beyond the Contract
• Intent of the parties.
• Bargaining history.
• Compromise offers.
• Past practice (reasonable, uniform and
recurring over a substantial period of time).
• Language construed against the drafter.

33. Standards Applied in
Disciplinary Cases
The Agency bears the
burden of proof.

34. Mitigation of Penalty
(Douglas Factors)
• Forewarned is forearmed.
• Management investigation.
• Substantial evidence rule.
• Fair and equitable.
• Mitigating circumstances.
• Inconsistent enforcement of rules.
• Rehabilitation.
• Punishment befits the crime.
• Procedural deficiencies.

35. The Union Prevails
Enforcement
An unfair labor practice may be filed under 5
U.S.C., Section 7116 within 6 months of the
date of service of the award.
Agency Appeals
The Agency can only file exceptions to the
FLRA on arbitration awards which do not
involve an adverse action.