Chapter 12

• Jurisdiction: United States

Chapter 12

Guide for Arbitration Advocates

§ 12.01 Introduction for Arbitration Advocates

[1] Chapter Design

This chapter is the key feature of the Second Edition of Alternative Dispute Resolution in the Work Place.¹ The Author has designed the chapter primarily, but not exclusively, for: 1) attorneys, even those with Article III court experience who have rarely, if ever, served as an advocate in an employment or labor-management arbitration; and, 2) non-attorney advocates, such as human resources managers, who may be thrust into the role of conducting an arbitration as primary advocate, perhaps without an attorney by their side and for the first time. Experienced arbitration advocates may find the materials in this chapter useful as a refresher or for its suggested ways to gain procedural and substantive advantage. What is intended is to provide a value added practical guide to supplement the legal analyses found in the prior chapters.

The chapter is generally organized from the genesis of an arbitration dispute, from the filing of a union grievance or an employee complaint, through the process to award and appeal. Its contents should disabuse any novice practitioner of the idea that it is an easy and simple matter to be an effective arbitration advocate. Successful arbitration advocacy requires a good deal of planning, research, interpersonal skills, logical thought, attention to detail, and writing ability.

The scope of the chapter is limited to arbitration. Mediation differs from arbitration in that mediation is designed to bring parties together. Unlike an arbitrator, a mediator has no final and binding power to decide the issues.² Arbitrators sometimes attempt, with the parties’ consent, to first mediate a dispute, but the essence of arbitration is that the parties, usually at an impasse, have agreed to accept the arbitrator’s ruling as final and binding. Arbitration is a consensual process.³

For someone who has never acted as an arbitration advocate and/or perhaps has only testified as a witness in an arbitration, taking control of a case may be very nerve racking. One purpose of this chapter is to lessen that anxiety by providing new advocates with guidance on how to go about advocacy in an arbitration case from its inception as an employee complaint or grievance, through arbitrator selection, pre-hearing procedures, the hearing process, direct and cross examinations, and post-hearing briefs. When possible, a new advocate should first be assigned to a case with limited liability and minor adverse results if the case is lost. This is not always possible and being assigned to a case with significant downside risk adds stress for a new advocate.

Throughout the chapter, the reader will note that arbitration proceedings can be quite informal and the arbitrator may, or may not, follow the rules of evidence. Control of an arbitration hearing is vested in the arbitrator who has wide latitude. For example, leading questions and hearsay which may be barred in court may be admissible in some arbitrations.

The Author is mindful that his own experience and methods are far from the only way to become a successful advocate. Please keep in mind that there can be a very wide range in how parties and arbitrators structure their arbitration agreements and conduct hearings. That means the advice given here may not be appropriate in all situations.

[2] Requirements for Practicing Arbitration Advocacy

Arbitration in the private sector is a contractual process. Arbitration hearings are not litigations or judicial proceedings. For private sector employment related arbitration, there is no legal requirement that arbitrators or advocates be admitted to the bar or to use counsel to advocate in arbitration. Many arbitrators have prior backgrounds as university professors, businesspeople, government neutrals, management side human resources managers, or union leaders. Because admission to the state bar at the arbitration site is not required for arbitration advocacy, attorneys admitted in other states may freely practice arbitration advocacy across state lines without engaging in the unauthorized practice of law.

[3] Law Applicable to Arbitration

In this chapter, it is assumed that the arbitration is being held under the Federal Arbitration Act⁴ or an equivalent state law.⁵ The parties may adopt a choice of law provision in the arbitration agreement. The arbitration agreement may be a stand alone document, embedded in an employee handbook, or in union situations, it may be embedded within a collective bargaining agreement (usually as part of the grievance and arbitration article). Private sector arbitration is almost always voluntary⁶ although arbitration may be mandated by a written pre-dispute agreement to arbitrate all matters arising out of employment, including future cases. For employers in the air or rail transportation business, the RLA⁷ mandates arbitration for all “minor” disputes, which means for questions of contract interpretation of existing agreements (not new or successor agreement negotiations). Outside of airlines and railways, in the private sector, arbitration of employment related disputes, although ubiquitous, is not mandated.

§ 12.02 Early Involvement

How early should an arbitration advocate become involved with a case? The Author suggests the answer is as early as possible. Once positions are taken, even early in the complaint or grievance process, they may be difficult to change later to a contradictory but more advantageous line. Also, the earlier a point is raised, the more difficult it is for the other side to claim they did not have adequate notice of a position or defense and would be prejudiced if a change of position was allowed.

[1] Shaping the Case for Minimal Liability

How a managerial act is performed may determine whether, and to what extent, there may be financial liability. Suppose a business has a classification in which seven employees are currently on the payroll. However, only three of these employees are actually performing the duties of the position for a majority of the work day. Absent a contract provision requiring maintaining staffing levels, the employer could have a reduction in force in that classification, eliminating the four positions. However, the employer may be restricted by contract or policy from laying off any but the four least senior employees in the classification. These employees may be the most productive. Alternatively, the business might do a classification study and instead of a layoff might choose to reclassify the four individuals who are not doing the actual work of the classification the majority of the time. These reclassified individuals may not be the least senior so reclassification may make more economic sense that layoff. Or, if contractually permitted, the employer could eliminate all seven positions and create a new classification, depending on how the contract or business policy allows people to bid to new positions. One route may be more contractually and legally defensible than another. Method matters.

The critical point is that in any given human resources situation there may be multiple ways to achieve the same end. Some will be more problematic than others and carry higher risks of liability for back pay or higher risks of legal or arbitral challenge. The arbitration advocate, if involved early, can provide advice on how to structure the business’ action so as to minimize risk. An advocate coming into a case when it is already ripe for arbitration may find options for a theory of the case limited by prior actions and written statements. To avoid this problem, early responses to a grievance might wisely be limited to a short statement, such as “grievance denied, no contract violation”. Generally speaking, it is usually wise to have lower level grievance responses by line managers confined in this way. More complete and complex answers written at the last pre-arbitration step more often will come from higher level human resources management who have the opportunity to consult with counsel.

Early involvement of the arbitration advocate, particularly an attorney-advocate, will facilitate communication and coordination with in-house or outside counsel who may handle any resulting litigation. Careful coordination for consistency between the arbitration advocate and the organization’s legal counsel is imperative as what occurs in one case may impact what occurs in another. It is not unusual for an employee who files a grievance on contractual grounds to also seek a remedy in a different forum on a different legal basis, such as a discrimination case based on age, sex, race, etc. at the Equal Employment Opportunity Commission or with the appropriate state or local EEO agency.

[2] Increasing the Chances of Success

One of the critical concerns about an arbitration case in the making is the chance of success and the downside risks of arbitrating the matter. If a case involves significant back pay liability or if it involves the risk of receiving an award that would set a bad precedent for the future, then it is not a good candidate for arbitration and the party involved should instead seek to settle the matter. Such a settlement may be offered only on a “non-precedent, no citation” basis to make clear it resolves only the current problem. This type of settlement is most useful when the monetary liability is low and the chance of a recurrence of the issue is similarly low. It can be quite cost effective.

Before a case is taken to arbitration or allowed to go there, each party’s advocate should take a good, hard, look at the upside and downside risks of moving ahead. For both sides, the fees of the arbitrator, the cost of the meeting room, the arbitration advocate’s fees, interruptions to production or lost time from work should be considered. Do the costs outweigh the risks? Is there a significant precedent that might be set? How strong is the...