Transcript Document

HOW TO WIN (and sometimes lose)
LABOR ARBITRATION CASES
January 3o, 2012
Nicholas DiGiovanni, Jr.
Two Types of Arbitration Cases
• Discipline and Discharge
• Contract interpretation
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Winning Before Any Grievances
Are Filed – Avoiding Grievances
Altogether
• Negotiating the Contract
• Contract Administration
• Knowing How to Assess Discipline
Situations
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Negotiating the Contract
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Be aware of writing ambiguous language
Understand what the language means and
its consequences
In the grievance article, be careful to define
a grievance in limited terms if possible
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EXAMPLE OF AMBIGUOUS
LANGUAGE
• For courses determined by the College to be
available for adjuncts for an upcoming semester,
and also following any assignments to full
time adjuncts, the College agrees that two
available assignments, determined by the college,
with a minimum of six credits per semester shall
first be offered to any adjunct who has taught eight
or more semesters at the college on the basis of
seniority provided the adjunct is qualified….
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Contract Administration
• Paying attention to the contract
• Record keeping- knowing the history and the
practices
• Training supervisors how contract provisions
• Foster good relations with the union -- no matter
how much it hurts!
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Discipline Cases
―Supervisory training
―Make sure the final decision is vetted before
decided upon
―Check all the just cause factors in advance
―Use common sense – Remember the arbitrator’s
perspective
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The Grievance Procedure
• Grievance procedures in CBA’s can be short or elaborate
depending on what the parties have negotiated
• Usually the grievance procedure will end in binding arbitration
• Some union grievance procedures may incorporate other
alternative dispute resolution procedures such as mediation,
but most do not
• Don’t take it for granted and don’t ignore it
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Grievance Procedure: Elements
• Usually, either the employee or the union may file a grievance.
• Grievances may be defined as alleged violation of the contract, or
sometimes a broader definition, such as allowing for alleged
violations of past practice or employer policy
• In termination cases involving employee misconduct, there will
usually be a just cause provision that must be met
• In faculty non-reappointment cases, evaluation and appointment
articles will likely be in play, on procedure and possibly substance of
decision
• In layoff cases, the grievant will usually be arguing that procedures of
the layoff or retrenchment article have been violated as well as
challenging the substance of the decision, if possible
• Sometimes grievant will allege that other articles, such as antidiscrimination clauses, academic freedom articles or personnel file
articles may also be part of the grievance.
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Grievance Procedure: Elements II
• Usually grievances must be filed promptly, e.g. within 10-30 days of
knowing of the event that triggered the grievance
• Grievance procedures will have multiple steps ending in a final
decision by the President or high level administrator before moving
on to arbitration
• Each step will have time lines for filing, for holding the hearing and
for decision.
• Union representatives may be at every step meeting; normally
attorneys are not allowed but the CBA may speak to that issue
• Grievance step meetings only chance for “discovery” by employer
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What to Ask Union in Grievance
Meeting: Discharge Case
• What particular CBA clauses are you claiming were violated by the
institution?
• Are you disputing that the employee engaged in misconduct or poor
performance, or are you conceding that and simply arguing over
penalty?
• Are you alleging disparate treatment?
• Are you claiming insufficient investigation?
• Are you alleging employee did not know what he did was wrong?
• Do you have witnesses to support your case?
• Are there other procedural violations that you are claiming?
• Are you offering mitigating circumstances on behalf of the terminated
employee?
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What to ask Union in Grievance
Meeting: Layoff Cases
• What particular CBA clauses are you claiming were violated?
• Are you alleging the layoff in general was improper? Delineate
your reasons
• What facts are you relying upon?
• Are you alleging the proper procedures for layoff were not
followed? How?
• Are you alleging that the particular selection of this employee
was improper due to seniority status?
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QUESTIONS TO ASK IN CONTRACT
INTERPRETATION CASES - I
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How do you interpret the language in dispute? We
think it means this; what is your interpretation of
the clause in dispute?
Are you relying on bargaining history in this case
and, if so, what?
Are you relying on past practice of some sort in
claiming that a provision of the contract was
violated?
If so, what is that practice?
How often has it been applied?
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QUESTIONS TO ASK IN CONTRACT
INTERPRETATION CASES - II
» Who knew about any alleged practice on the
administration side?
» Was there ever any understanding, formal or
otherwise, with the union over this practice?
» I hear you say that this clause should be interpreted
that way. How, then, do you explain this other clause
in the contract and how it should work?
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The Grievance Answer
Raise any procedural issues
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timeliness
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failure to follow a step
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not an arbitrable matter
Substance of Answer
-- less is more on the facts….unless you have to
-- if you want to offer a settlement, do it separate
from the answer
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Settlement Considerations I
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Cost of litigation
How strong or weak is your case?
Contract interpretation case
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what will arbitrator do if you lose?
Discipline/Discharge
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Progressive discipline considerations
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Reduction of penalties
Discharge
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Bigger deal--if you bring employee back, may
be bad signal to other employees and will be
interpreted as a union win
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Last Chance Agreement as alternatives
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Settlement Considerations II
» Other factors
• Other litigation and how settlement may
influence it
• Politics and the Relationship with the Union
• ….
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What the Union Must Consider
• Usually only the union may take a grievance to arbitration.
• Unions must make these decisions to arbitrate by owing employees a
duty of fair representation The law does not mandate, however, that
all termination cases must be taken to arbitration
• Private counsel: Due to the union’s status as the exclusive
representative of employees, an employee will not be allowed to bring
in private counsel but must be represented by the union.
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Selection of the Arbitrator
• Process for selection will be defined in the CBA
• Often parties may agree on someone
• If no agreement, parties will often utilize the services of AAA or
FMCS and the appointment procedures of such agencies
• Parties may also agree in CBA on a permanent panel of
arbitrators
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Factors to Consider in Selecting
Arbitrator
• Background of the arbitrator: is a judicial or legal
background important?
• Familiarity with higher education
• Reputation
• Past awards in interpreting comparable language
• Style
• Cost (usually split between employer and union)
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Overall Hearing Procedure
• Arbitrator will ask parties to define the “issue” he or she is being
asked to resolve.
• Agreed upon exhibits stipulated
• Opening statements
• Party with burden of proof proceeds first. In discharge cases,
employer usually carries burden. In a layoff case, the union will
usually carry the burden.
• Witnesses usually sworn in
• Direct question and answer testimony and opportunity for cross
examination
• Strict rules of evidence do not apply; hearsay testimony or other
evidence that may not be admitted in court often allowed
• Closing arguments and/or filing of briefs
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THE HEARING--Procedural matters:
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Procedural arbitrability
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Timeliness
Failure to follow steps
Substantive arbitrability
Arbitrators’ approach
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Look to contract first; some contracts require the issue be dealt
with first
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In the absence of such a provision, it will be up to each
arbitrator
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Most will want to hear the whole case
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Stating the Issue for the Arbitrator
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Arbitrator needs an issue to decide
Not always clear from the grievance
Draft the issue geared toward what you are prepared to defend
But be prepared to be faced with a broader issue by the union
Arbitrators may take the matter under advisement if no
agreement
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Example of consequences of defining
issue properly
• Whether the College violated Article 14 (Overtime) in its
distribution of overtime to X employees on May 4?
• Whether the College was fair and equitable in distributing
overtime on May 4 and whether such assignments were in
accord with past practices within the department?”
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Presenting the Case: Discipline/Discharge
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What occurred?
How the matter was investigated?
Was due process provided to the employee?
Did employee have knowledge of the rule that was violated or
should he have known the conduct was wrong
Why was conduct detrimental to institution?
What was the employee’s prior record?
Was the employee’s longevity factored into the decision?
Was there disparate treatment?
Did length of service influence the penalty?
Why one form of discipline over another?
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Presenting the Case--- Contract interpretation
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Even though it is union’s burden, make sure you are
prepared to present the facts yourself through your own
witnesses
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What evidence will you use to help the interpretation
you seek?
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What do arbitrators use to interpret ambiguous
language?
Determining the parties’ intent
Past practice – how the parties themselves have
interpreted it
Bargaining history
Other contract clauses: How does your
interpretation give full meaning to all clauses of the
contract? How does the union interpretation fail?
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Witnesses
― Use your best witness if you can
― Don’t use too many
― Prep the witnesses carefully as to what you will
ask and what cross examination will be like
― Explain what you are doing legally but don’t let
them be lawyers on the stand
― Emotional preparation – having a calm witness
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Instructing witnesses
• Answer all questions honestly
• Only answer the particular question asked; do not volunteer
information
• Do not be ashamed to say you do not know the answer to a question
• Do not guess at any answer, particularly on cross-examination
• Be brief in answering questions on cross-examination
• If an objection is raised to a question, do not answer until the
arbitrator has ruled on whether the question should be answered or
not
• Try not to refer to notes unless absolutely necessary
• If you do not know the answer to a question, do not volunteer other
people who might know the answer
• Do not be sarcastic or hostile towards the union counsel or
representative
• If you do not understand a question, ask for a clarification
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Documents
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Discuss with Union counsel in advance….sometimes!
CBA and Grievance correspondence
Bargaining proposals
Letters between the parties regarding practices
Prior disciplinary record
Complaint letters
Investigation reports
Prepared exhibits – only to prove the case
― Have person who prepared exhibit present
― Very useful on economic issues
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The hearing –presenting the case
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Opening statements
The understandable story line
Comports with the informality of arbitration
No strict rules of evidence
Demeanor
Help the arbitrator when possible
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Briefs
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Very important in most cases
Capture the story line
Use case law judiciously
Help the arbitrator to write the decision
Don’t overwhelm
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Arbitration Awards
• Arbitrator will usually issue decision within 30-60
days of filing of briefs
• Decision in writing
• Arbitrators are not bound by precedent of other
arbitrators but may be persuaded by such decisions
when cited in post-hearing briefs
• Appeals can usually only occur if the arbitrator
clearly exceeded authority or engaged in fraud of
some type
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