Arbitration Article 16 When all else fails Arbitration
Arbitration Article 16 When all else fails!
Arbitration - Defined l l Arbitration is a THIRD-PARTY dispute resolution technique. Labor arbitration is used to resolve disputes between labor and management concerning the application or interpretation of an existing COLLECTIVE BARGAINING AGREEMENT. The CHIEF OBJECTIVE is for each side to try to persuade an ARBITRATOR that its case should be upheld. (win/lose) Arbitration results in a decision which is FINAL and BINDING on the parties.
PLEASE NOTE!! There is nothing that says the outcome of arbitration has to be FAIR!
A quick reminder about grievances l l The better prepared the grievance is, the better the arbitration will go. (the outline of your case is already there) Step 1 and Step 2 meetings are golden! (all your evidence will be included and you will have some idea of what management’s case will be)
Alternative Dispute Resolution l The preamble to Article 16 states: …. prior to a case being heard at arbitration, the parties will identify and schedule those cases which should be resolved through mediation, settlement, or other means of alternative dispute resolution. If a party opts not to use the ADR process then it must notify the other party of this decision in writing.
If ADR is not used or is unsuccessful, what happens next? l l l During the grievance process the grievance “belongs” to the grievant. This remains true during the mediation process. Once a grievance is invoked to arbitration the case “belongs” to the NCFLL. Your local Union President must send notice to the NCFLL arbitration committee requesting that a grievance be invoked to arbitration. When submitting the invocation to the Committee, the Chair has asked all Local Presidents to include: l l Who the advocate will be and his/her contact information What city the arbitration will be held in
Article 16 Section 1 - Selection of Arbitrators l l l The Arbitration Committee Chair will request a list of Arbitrators from FMCS. Both the Union Advocate and the management representative will receive a copy of the arbitrators list. Selection of an arbitrator can be done by mutual agreement, or by striking.
The Art, Science and Magic of Selecting an Arbitrator l l l Check your sources. Look up the arbitrator’s bio and stats. Check out the following: – – – l Daily rate ($$) Physical location Cancellation policy Roll the dice.
Article 16 Section 3 – Scheduling, Date and Site of Arbitration Hearing l l Within 10 calendar days of the selection of the arbitrator…the parties will jointly communicate with the arbitrator and each other in order to select a mutually agreeable date for the arbitration hearing. Things to consider: l l How prepared are you to go to arbitration? Do you have a Technical Assistant selected? What do your schedules look like and when will you have time to meet and prepare? Where will your witnesses come from?
Article 16 Section 4 – Official Time and Travel l Time and travel could impact your selection of a Technical Assistant and selection of witnesses, as well as a location for the Arbitration. Don’t let management put cost containment as a priority over effective case presentation. Give consideration to costs, but be sure that reasonableness is applied equitably.
What Do I Need To Do? ? ? l l l PREPARE the case PREPARE your grievant PREPARE your witnesses PREPARE yourself REVIEW…… Arbitrations are stressful and tedious!!!
Issues than can be addressed in advance: l Framing the issue. – – l Stipulations of fact. – l l The issue should be stated as a question. Try to frame the question as a neutral issue. Agree to certain facts without retrying the issue for efficiency. Joint exhibits. Grievability/Arbitrability.
Going to Arbitration Keep in mind that the arbitrator has no knowledge of the DOL/NCFLL contract, the issues of the grievance, or anything about the day-to-day operations of your agency/office.
Head and Heart In going to Arbitration you want to address the ‘head’ and ‘heart’ of the Arbitrator. l HEAD: Provide all available information that answers all questions of law and fact. l HEART: Connect the arbitrator to the case in such a way that he or she feels the importance of the case and wants to decide in your favor.
Educating the Arbitrator via the case You will want to present your case in such a way that the arbitrator will: l Be able to “see” the office. l Be able to “know” the job the employee performs. l Be able to “feel” the emotions. l Understand the sources of authority. (next slide) l Know the past practices. l Know the intent of the parties. l Know the “expectations”.
Source of Authority l l DOL/NCFLL contract. Bargaining history. Expert witness testimony (someone who bargained the contract). Documentation or testimony supporting a past practice.
The Hearing begins…. l l Be respectful and courteous to the Arbitrator. The parties will introduce themselves. The Arbitrator will ask if the parties have agreed to the issue, any stipulation of facts, and joint exhibits. Opening statements provided by both sides.
Opening statements l l l Be a good advocate for your grievant. Provide the Union’s side of the story, chronologically. Summarize the facts. Develop a theme and stay on message. Develop a Theory. Provide a Remedy.
Develop a Theory l l Review the evidence. Determine what you need to prove to the Arbitrator to WIN the case. Decide what are the best FACTS to prove it. Ask yourself, how can I best present those facts?
The Hearing continues…. . l l l The party with the burden of proof usually goes first. This party will call their witnesses. This is called Direct testimony. The opposing party may Cross Examine these witnesses. The first party may conduct Redirect of witnesses to clarify a point. Redirect is generally limited to the scope of Cross. The opposing party may Re-cross. This is limited to the scope of redirect questions. And so on, and so on…. .
Witnesses l l The parties will exchange witness lists at least 30 calendar days prior to the arbitration date. Witness preparation is KEY to the arbitration process. In order to convince the Arbitrator, witnesses must be credible. Credible witnesses will establish the credibility of the grievant.
Questions - Direct l l l DO NOT ASK LEADING QUESTIONS! Outline: Who, What, When, Where, Why, How. Ask the witness to: – – – l l Describe… Explain…. Tell us…. . Direct should establish the facts, shape the facts, provide a chronology, tell the story and put a human face on the issue. Direct testimony should be 95% of the case.
QUESTIONS - Cross l l l Pay close attention to the other side during direct and take copious notes. Cross should not be longer than direct – it is THEIR witness. Ask for clarification of issues – don’t argue. Do NOT ask the question WHY? You CAN ask questions that are outside the scope of Direct.
The Hearing Ends l l Both sides provide closing arguments. Be sure your opening statement and closing argument MATCH. Repeat your positions and explain how you’ve proved them. Tie in contract language as much as possible.
Article 16 Section 6 – Authority of the Arbitrator l The Arbitrator will have no authority to consider new issues, allegation and defenses…not raised at or before the Step 2 grievance hearing. l The Arbitrator’s decision will be final and binding. l The Arbitrator should render and serve the written award within 30 calendar days of the close of the record.
Advice: Never Arbitrate if you can Mediate!!!
- Slides: 26