The Revised Uniform Arbitration Act and Its Impact Upon the Collective Bargaining Arbitration Process

• Jurisdiction: Hawaii,United States
• Citation: Vol. 18 No. 06
• Publication year: 2014
• topic: Business of Law,Labor Law

The Revised Uniform Arbitration Act and Its Impact Upon the Collective Bargaining Arbitration Process

by Lou Chang

THE RUAA

The Revised Uniform Arbitration Act ("RUAA") is a statement of a general arbitration law first proposed by the National Conference of Commissioners on Uniform State Laws in 2000. In 2001, Hawaii was among the first states in the country to adopt the RUAA. Hawaii's version of the RUAA is codified in Haw. Rev. Stat. Ch. 658A (Hawaii RUAA). By its terms, as of July 1, 2004, the Hawaii RUAA "governs an agreement to arbitrate whenever made." Haw. Rev. Stat. § 658A-3(c).

As an articulation of arbitration law, the statute is a "one size fits all" law. Its provisions govern any and every arbitration, from the smallest consumer debt claim to the largest, most complex class action, construction design and defect or securities fraud case. Because the Hawaii RUAA "governs an agreement to arbitrate whenever made," it also includes within its ambit of potential coverage such diverse arbitration processes as lease rent renegotiations, insurance damage appraisals, and collective bargaining agreements covering tens of thousands of unionized workers.

To accommodate a potentially broad range of legal disputes and matters, the Hawaii RUAA provides many of the "bells and whistles" of the judicial litigation process. Among the judicial litigation processes incorporated into the arbitration process are the following:

Discovery. "An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious and cost effective." Haw. Rev. Stat. § 658A-17(c).

Depositions. "[A]n arbitrator may permit a deposition of any witness to be taken for use as evidence at a hearing . . . ." Haw. Rev. Stat. § 658A-17(b).

Summary Judgment/Disposition. "An arbitrator may decide a request for summary disposition . . . ." Haw. Rev. Stat. § 658A-15(b).

Motions practice. "An arbitrator may conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding . . . ." Haw. Rev. Stat. §. 658A-15(a).

Sanctions. "[T]he arbitrator may order a party to the arbitration proceeding to comply with the arbitrator's discovery-related orders. . . and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this State." Haw. Rev. Stat. § 658A-17(d).

Attorney's fees and costs. "An arbitrator may award reasonable attorney's fees and other reasonable expenses of arbitration if such an award is authorized by law in a civil action involving the same claim or by agreement of the parties to the arbitration proceeding. Haw. Rev. Stat. § 658A-21(b).

Punitive damages. "An arbitrator may award punitive damages or other exemplary relief if such an award is authorized by law in a civil action involving the same claim." Haw. Rev. Stat. § 658A-21(a).

These judicial litigation processes had not previously been traditionally part of the collective bargaining grievance arbitration process.

After a decade of experience with the Hawaii RUAA, query whether it has altered the arbitration process and whether in the collective bargaining arena, it has improved or damaged the collective bargaining relationship. Because the Hawaii RUAA has made such judicial litigation processes potentially part of the collective bargaining grievance process, this article will present different viewpoints from attorneys, labor/management and union, management and arbitrator practitioners as to the impact of the Hawaii RUAA on the collective bargaining grievance process.

In October, 2013, Ted Tsukiyama, a noted and highly respected arbitrator was honored as a "Hawaii Labor Legend" at a Hawaii labor and management forum. Ted Tsukiyama presented a retrospective keynote speech sharing his observations from over 50 years of work in the collective bargaining arbitration field. His blunt, thought provoking speech is reprinted below.

Ted Tsukiyama's Keynote Speech.

The term "reform" assumes or presupposes that there are flaws, deficiencies and shortcomings in the arbitration process that calls for reformation and betterment. The biggest problem burdening the institution and practice of arbitration is its advancing formalism and legalism resulting from its dominance and control by the legal industry and profession.

From over 50 years ago labor arbitration was engaged in an internal struggle over its basic identity and purpose between the concept of a simple, informal, in-house "problem solving process" advocated by former War Labor Board Chair George Taylor and a more formal and structured dispute resolving process advocated by the American Arbitration Association, which was ultimately resolved in favor of the latter approach.

In the ensuing decades labor arbitration gradually evolved toward (1) an increased legalistic practice, procedure and perspective, (2) resulting in increased use of attorneys as advocates and arbitrators, (3) which was largely as a result of the parties' preference and choice motivated and fuelled by a "must win" or "win at all cost" complex, (4) prolonging and complicating the hearing time and process, and (5) producing a more competitive, adversarial process often no different than contested litigation in the courts. The net result was the loss or erosion of the basic objectives and advantages of the arbitration process of speed, informality, economy, mutual control and good will.

Labor arbitration originated as a creature of the collective bargaining contract designed to be the terminal point of the contractual grievance procedure as a simple, informal, internal grievance resolution process within the union/management relationship. Grievance arbitration was created as a "problem-solving" process and institution to maintain labor stability and peace during the term of the contract, and it was, and still should be, an integral part of the collective bargaining process, and not as a separate system of industrial jurisprudence. Yet, the present day legalistic nature and status of labor arbitration has become a totally antithetical counterpoint to its originally intended form, purpose and operation. The almost exclusive advocacy by attorneys necessarily brings increased formalism to the entire hearing process complicating and lengthening its completion time with attendant increased costs and a more acrimonial adversarial environment which becomes wholly counterproductive to the problem-solving origins and purposes of grievance arbitration. Labor arbitration can be made better, viable and more effective only when the process can be made less formal, less technical, less adversarial and brought back to "its roots," to the shop and plant level of the parties' relationship. So how can this be done?

The Attorney Advocate.

1. It is not here being suggested, much less urged, that attorney advocates be removed or barred from the arbitration process, because an attorney who has learned to become a good, effective arbitration lawyer is a positive asset to the entire labor arbitration process. He knows that an arbitration hearing is not court litigation and that all of the legal and technical rules of procedure and evidence are unnecessary and do not apply to the former, and he conducts himself accordingly. To be effective, he abandons his adversarial instincts and leaves behind his technical tools of trade which contribute to the growing formalism of the process but which have little or no use or relevance in arbitration.

2. Hawaii Arbitration Law (Ch. 658A-23) minimizes the technicalities and formalisms of the process by upholding and insulating an arbitrator's award against all of the usual errors of procedure or mistakes of law and specifying only 4 basic grounds by which the award can be reversed or vacated (rendering it "more binding than a court judgment") (1) corruption, fraud or undue means, (2) evident partiality, corruption, arbitrator misconduct, (3) substantially prejudiced rights of a party. . . i.e., refused to consider evidence material to the controversy,(4) exceeded the arbitrator's powers. Thus, the usual lawyerly objections should not be made unless it impacts this law! Hearings will become simplified, undistracted, expedited and shortened . . . reduce costs.

3. The entire arbitration process has become pawns to the attorney's work schedules. Arbitration cases, especially discharge cases, should be given prioritized consideration in their work schedules. The process and its...