Grievance Arbitration

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					                               Grievance Arbitration
                               Professor Bruce Fortado
                              University of North Florida
                            MAN 4401/6411 Labor Relations

Grievance arbitration is a quasi-judicial process where a neutral third party hears a
dispute over contract interpretation, discipline or discharge and renders a final and
binding decision. Arbitrators are commonly selected on a case-by-case basis. A few
contracts provide for “permanent umpires,” who are arbitrators that have an ongoing
engagement. Even here, when an umpire writes a decision that angers one side, the
ongoing relationship can be terminated. Arbitrators serve at the will of the parties. This
has produced some concern that arbitrators will try to split settlements, or split their
decisions over time, to enhance their mutual acceptability. An arbitrator can alleviate this
skepticism by writing a carefully reasoned decision, one that addresses all the issues
posed, especially those raised by the losing side (Carrell and Heavrin, 2007: 495).
         Some agreements call for a tripartite board rather than a single arbitrator to hear
the case. The tripartite board may consist of one labor representative, one management
representative and one neutral. This design is less common than the single arbitrator. It
insures both sides are heard and involved in the decision. The labor and management
representatives may be able to provide some behind-the-scenes insight into the case.
         Roughly ninety-seven percent of private sector labor agreements contain
arbitration clauses to deal with the grievances that remain unresolved after the initial
steps of the grievance procedure are exhausted. Arbitration clauses are normally the quid
pro quo for a no-strike and no-lockout provision during the life of the contract (Textile
Workers Union of America v. Lincoln Mills of Alabama, 1957).
         Grievance arbitration was strongly promoted by the War Labor Board during WW
II. During the early years of usage, arbitrators often tried to mediate the unresolved
problems. Over time, arbitrators have moved away from a mediation and problem
solving posture toward legalistic adjudication. This does not mean that an arbitrator
might not have a meeting with the advocates from each side during the proceeding where
he/she urges the parties to consider settlement. However, this sort of activity has
progressively become less common. In a few instances, grievance mediation has been
experimented with as a quicker and more informal mode of conflict resolution.
         The courts have had to answer the question of what should be done when there
are questions about whether an issue should be arbitrated. The Supreme Court decided if
the contract is silent on an issue, such as subcontracting, doubts are decided in favor of
arbitration (The Steelworkers Trilogy, 1960). Thus, if the parties want to exclude a
matter, they should specifically list it as excluded in their agreement. An arbitrator must
not exceed the authority given him/her under the collective bargaining agreement. The
arbitrator “may not add to, detract from, or otherwise modify” the contract (Hilgert, 1999:
200). The decision of an arbitrator can be enforced in court. The courts will normally
not review an arbitrator’s award like an appeal court might review a lower court decision.
Unless an arbitrator exceeds his/her authority, was not mentally competent, the decision
is contrary to law, or some sort of bribery, fraud or breach of ethics can be proven. A
grievant normally has no choice but to accept an arbitrator’s decision, because this is the
final stage of appeal. The only exception to this “one bite at the apple” principle lies in
Equal Employment Opportunity cases. The courts have different procedures and
potential remedies, so employees are not precluded from suing even after they obtain an
arbitration decision (Harrell Alexander, Sr. v. Gardner-Denver Co., 1974).
         The parties often get lists of five arbitrators from either the Federal Mediation and
Conciliation Service (FMCS) or American Arbitration Association (AAA) to choose
from. The parties may alternatively strike names until one remains. If both sides are not
satisfied with the list, they may get another five names. The parties normally split the
costs. A few labor agreements provide for the loser to pay the entire cost. In 1996, an
arbitrator’s fees and expenses alone came to over $2,500 per case. It is not unusual for
an arbitrator to charge the parties for three days work: more specifically, one day to hear
the case, one day to analyze it, and one day to write a decision. An FMCS study in 1996
found transcripts were taken in 29 percent of the hearings, and post hearing briefs were
filed in roughly 80 percent of the cases (Hilgert, 1999: 204). Cases involving discharge
are normally rushed to arbitration, because back pay may have to be issued. A case that
is heard in ninety days would be considered fast. The average is 207 days. These time
horizons may seem long, but they are far quicker than a lawsuit would be.
         In arbitration, both parties have advocates, possibly attorneys. Both sides make
opening statements, witnesses are sworn and testify, cross examination is conducted,
exhibits are entered, closing statements are made, a record is kept of the proceedings, and
briefs may be filed. The parties often have one month to submit s brief. The arbitrator
normally then has one month to submit a written decision.
         The arbitrator must assess the credibility of witnesses. A witness who is
confident and/or emotional is not always entirely accurate. Witnesses who have observed
certain matters more frequently and for longer periods, and those who have no vested
interest, are normally deemed more reliable. When witnesses repeat the question, look up
like they are looking for the answer, or repeatedly say “uh, uh,” give the impression they
are concocting answers instead of recounting what they saw and heard. It is quite
common to have varied versions of the same events, and time dims memories.
Experienced practitioners will record the witnesses’ recollections near the time of the
event, and refresh their recollections before a hearing with these records. Witnesses are
generally allowed to tell their stories without many interruptions. Cross-examination is
allowed, but it seldom will take on the intense form it does in some court cases.
         There are rules of evidence in arbitration, but the standards are not as strict as in
court. The process is less formal, and the arbitrator is less likely to be improperly swayed
than a jury might be. The arbitrator will often admit evidence “for what it is worth.”
This gives the party the feeling the arbitrator is receptive, while the integrity of the
process is in fact maintained. An arbitrator may ask questions of the witnesses himself,
normally after the advocates have concluded their examinations. Some arbitrators will
help inexperienced advocates by instructing them how to proceed, and by asking some
questions that were left out. The parties, however, state in surveys that they feel strongly
an arbitrator should not provide substantial help to an inexperienced advocate (Carrell
and Heavrin, 2004: 514).
         If a witness is caught lying, his/her testimony will be discounted, but there is no
pursuit for perjury. Some have lamented this weakness. Perjury, though, is seldom
pursued in court cases. Although there is some difference of opinion on this subject,
generally is no protection from self-incrimination in arbitration. Accused employees can
be questioned and forced to testify. Further, managers can conduct searches on the
company premises that do not require a search warrant. Deciding whether a person is a
satisfactory employee and will continue to be employed is not deemed as serious as the
possibility of criminal conviction. In general, off site misconduct, such as drug usage,
must be shown to have some linkage to the workplace in order for it to be used as
grounds for discipline.
        The burden of proof, meaning who must go first and establish a case, differs
according to the type of case. In contract interpretation cases, the union must go first and
bears the burden of proof. In discipline situations, a person is presumed innocent until
proven guilty, just as in the legal process. Accordingly, management must go first in
discipline and discharge cases, and bears the burden of proof. Two possible errors are
possible in arbitrating discharge cases: namely, an innocent man may be discharged and a
guilty man may get off. An innocent man being punished is deemed a worse error than a
guilty man getting off (Drotning and Fortado, 1984). There is some debate about the
degree of certainty an arbitrator must have in deciding a case. Evidence can be
preponderant, clear and convincing, conclusive or beyond a reasonable doubt. While one
should beware reducing this to slightly more than 50% and over 90%, one would expect
arbitrators to look for a higher degree of certainty in deciding discipline and discharge
cases than they would in contract interpretation.
        Arbitrators consider many forms of evidence and testimony (Higert, 1999: 199):

               1.   The language of provisions of the agreement.
               2.   The intent of the parties in negotiating agreement provisions.
               3.   Past practice or precedents in handling similar or parallel matters.
               4.   Practices at other firms in the same industry or in other industries.
               5.   Equity or fairness in certain matters: “just cause” in disciplinary cases.
               6.   Arbitration rulings and precedents established by other arbitrators.
               7.   Industrial relations practices accepted as desirable or undesirable.

Clear contract language always controls. When the language is ambiguous, past practice
in the workplace may be controlling. In considering whether a past practice exists, the
arbitrator will consider the clarity and consistency, the longevity and repetition (daily,
weekly, or yearly), the acceptability, the underlying circumstances, and the mutuality.
There are no firm rules on how long a practice must have been handled in a certain way,
how often it must have occurred, or how consistent it must be. In general, the longer the
practice, the more frequently it occurs, and the more consistent the treatment has been,
the stronger the past practice case is. One is essentially determining if the parties have
had a “meeting of the minds” on the subject, and now one party is attempting to
unilaterally change matters. When both parties have accepted a practice, acted upon it,
and there is a mutuality of interest, they both may be bound by it. The best way to
change a past practice is via collective bargaining.
        In order for management to properly impose discipline or discharge, “just cause”
must exist. On one hand, some managers have complained you just cannot fire a union
worker, because arbitrators always bring them back. On the hand, some management
attorneys and consultants claim they can get rid of anyone, and they will prove it if an
employer will just hire them. What sense can be made out of these diametric positions?
Is it just a question of the managers making the first statement not having adequate
training?
         Much like common law, the just cause standard developed as arbitrators
progressively made decisions. The famous list of just cause questions was outlined by
Arbitrator Carroll R. Daugherty (Grief Bros. Cooperage Corp., 42 LA 555):

               1. Did the Company give the employee forewarning or foreknowledge of
                  the possible or probable disciplinary consequences of the employee’s
                  conduct?
               2. Was the company’s rule or managerial order reasonably related to the
                  orderly, efficient, and safe operation of the Company’s business?
               3. Did the company, before administering discipline to an employee,
                  make an effort to discover whether the employee did in fact violate or
                  disobey a rule or order of management?
               4. Was the Company’s investigation conducted fairly and objectively?
               5. At the investigation did the “judge” obtain substantial evidence or
                  proof that the employee was guilty as charged?
               6. Has the company applied its rules, orders and penalties evenhandedly
                  and without discrimination to all employees?
               7. Was the degree of discipline administered by the company in a
                  particular case reasonably related to (a) the seriousness of the
                  employee’s offense and (b) the record of the employee in his service
                  with the company?

A “no” answer to any of these seven questions means just cause did not exist. Rules and
orders are the most typical forms of forewarning, but it is possible for employees to be
held accountable for well known social standards (e.g. norms regarding theft, violence,
drinking alcoholic beverages and insubordination). Arbitrators virtually universally
believe employees should obey first and grieve later, unless they fear for their health and
safety if they comply with a directive. An employer should not discipline first and
investigate afterwards, because people tend not to be open to contrary information once a
decision is made. When the managers are very concerned about what might happen if an
employee remains at work while the investigation is in progress, the person can be
suspended pending the outcome of the investigation. If the person is found to be
innocent, back pay should be issued. When an employer has been very lax in enforcing
certain provisions, it is best to notify the employees beforehand that the provisions will
be enforced from this point forward. Both favoritism by supervisors toward their in-
group and fractional bargaining by powerful groups can produce inconsistencies that can
void disciplinary actions. One can never be determined to be guilty in an instant case
based on having a record of prior infractions. Once found guilty in this instance, the prior
record can be used in determining the proper penalty in this instance.
        “De minimis” is a term standing for a technical, but insignificant violation of the
labor agreement. Such matters are trivial, so arbitrators will drop them. “Mitigating
circumstances” is a term that stands for the possibility in a disciplinary situation that (1) a
manager contributed to the problem, or (2) the circumstances in the case are so unusual, it
is unlikely to happen again. In either instance, disciplinary actions may be set aside.
When a union representative outlines an employee’s long and relatively clean work
record, an argument is being made that the problem was unusual and probably will not
happen again. Some arbitrators cite mitigating circumstances with some frequency.
Others feel the managers are the ones who can show mercy if they chose to, and the
arbitrator should simply decide the matter on its merits. Just as some judges are stricter
than others, so are some arbitrators. This is a big reason one should research the
decision-making history of an arbitrator before making a selection. An arbitrator’s
history should probably be researched issue-by-issue if possible, because some may be
stricter in some areas than others.
         Given that a fast arbitration with written briefs and decision will take at least 90
days and cost $2,500-$5,000, expedited arbitration has been experimented with. The
United Steelworkers implemented a three year expedited arbitration program in 1971.
The process is often held at the worksite, instead of in a hotel meeting room. The rules of
evidence are relaxed. No briefs will be written. In a few cases, the arbitration will rule
from the bench, or rule later the same day or the next day after considering the matter.
This procedure has been used in minor disciplinary cases and other relatively simple
matters. For important contract interpretations cases and discharge cases, the parties
normally prefer the slower and most costly process, because it is more careful and
deliberate. Expedited arbitration can easily reduce two months from the time taken by
the normal process, and can save the costs of a transcript and perhaps two days of an
arbitrator’s time. Both sides normally have to consent to expediting a case.