Joseph W. DuffyLabor Arbitrator

What We Will CoverHere’s what I would like to talk about today:• A brief overview of the labor

arbitration process.• A look at my caseload and the type of

issues that parties have submitted to me.

• A discussion of some of the issues that commonly come up in labor arbitration.

• Some case examples.• And, finally, whatever else you would

like to talk about concerning labor arbitration. I particularly welcome your questions and any concerns that you have about the process.

Why is labor arbitration different from other forms of commercial arbitration or civil litigation?

The Steelworkers Trilogy - 1960

• In 1960, the U.S. Supreme Court decided three cases that confirmed the role and status of labor arbitration.

The Court said:• In the commercial case, arbitration is the substitute for

litigation. Here, arbitration is the substitute for industrial strife…[A]rbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement…For arbitration of labor disputes is part and parcel of the collective bargaining process itself…

• The Court characterized the collective bargaining agreement and the labor arbitration process under the CBA as: “an effort to erect a system of industrial self-government” between Unions and Employers.

The Court also wrote:• When most parties enter into a contractual

relationship they do so voluntarily. That is not true of the labor agreement.

• The Court included the following in the description of the role of the labor arbitrator:

• [A]n arbitrator is confined to the interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.

Most CBAs include a provision that confirms these limits on the arbitrator’s authority, such as:

The arbitrator shall have no authority to add to, subtract from or modify the terms of this agreement.

Key Points• Labor arbitration is an extension of the collective

bargaining process and differs from commercial arbitration.

• Labor arbitration is a substitute for the strike and lock out.

• The collective bargaining agreement defines the scope of the arbitrator’s authority.

• Parties to a collective bargaining agreement have an ongoing relationship that extends beyond a single arbitration case.

What are the qualities that make an effective labor arbitrator?

Highlights of My Role as an Arbitrator

• 1. To make myself available for timely scheduling of hearings.

• 2. To maintain impartiality and to disclose any actual or potential conflicts of interest.

• 3. To conduct a fair hearing during which each party has a full opportunity to present its evidence and arguments.

• 4. To manage the hearing, but to let the players play. During the testimony, ask for clarification if I don’t understand, but otherwise resist the urge to question witnesses.

• 5. To prevent badgering or character assassination of parties and witnesses during the hearing.

• 6. To interpret and apply the collective bargaining agreement as it is written or as nearly as I can to the intent of the parties as shown by the evidence presented at the hearing.

• 7. To weigh the evidence carefully and to make a decision supported by the evidence.

• 8. To write a decision that explains clearly why I decided the case the way that I did and that is issued in a timely manner.

• 9. To aid in the maintenance and development of professional standards.

What does a typical labor arbitrator’s case load look like?

My Labor Arbitration Practice

• Of the 111 new cases I received in 2014, 42 or 38% went to hearing.

• Of the cases that went to hearing 83% were public sector and 17% were private sector. (Note – In 2014 I had quite a few interest arbitration cases and so that raised the percentage of public sector cases to a higher level than usual.)

• Of the cases that went to hearing 61% were contract interpretation cases and 39% were discipline cases, most of which were discharges.

• So far in 2015, I have issued eighteen awards. The awards fell in the following categories:

• Discharge – Work performance• Discharge – Racial harassment• Discharge – Sexual harassment• Discharge – Off-duty misconduct• Contract interpretation – Pre-arbitration information request• Contract interpretation – Work assignment• Discharge – Safety violations• Discharge – Intoxication at work• Discharge – Time card fraud• Contract interpretation – Compensation• Discharge – Work performance

• Contract interpretation – Disability accommodation

• Discharge – Safety violations• Contract interpretation – Work assignment• Contract interpretation – Compensation• Contract interpretation – Benefits• Contract interpretation – Seniority bypass• Contract interpretation – Benefits

What is the typical arbitration opinion and award format?

Typical Format of an Arbitration Decision

• Introduction – Procedural history of the dispute• Issue Statement – What the Parties want me to

decide.• Factual Background• Discussion – Analysis of the arguments and the

evidence; application of the CBA and accepted principles that are commonly applied in labor arbitration to the evidence.

• Award – The decision (denied or sustained) and the remedy, if a remedy is awarded.

How do arbitrators decide labor arbitration cases?

Highlights of the Decision-Making Process

• What is the issue that the Parties have asked me to decide?• What does the CBA say?• What does the grievance say?• What are the principal arguments made by each Party?• What evidence in the record supports or conflicts with those

arguments?• What commonly applied principles used in labor arbitration apply

to this case – e.g. the just cause standard, past practice?• Which Party’s position is supported by the greater weight of the

evidence?• What is the appropriate remedy, if a remedy is awarded?

What is the theory of the case?(Or, you can’t get there if you

don’t know where you’re going.)

The best advocates develop a theory of the case and organize the testimony and the evidence to develop and support that theory.

Why is a thorough investigation so important?

• A thorough investigation promotes settlement and helps to avoid surprises. In the simplest terms, find out all you can about who, what, where, when why and how. In a discipline or discharge case, the Seven Tests of Just Cause serve as an excellent tool for investigating and analyzing the strengths and weaknesses of the discipline/discharge decision.

What kinds of issues come up before the hearing that may require the arbitrator’s involvement?

• Other Issues– Subpoenas for employees and supervisors– Subpoenas of third parties– Subpoenas duces tecum– Pre-hearing conference calls– Location of the hearing

Who attends the hearing?

• Who will attend sometimes becomes an issue. Generally, each Party is entitled to have a representative along with the advocate, and, in addition, the grievant has a right to attend, except in very rare circumstances.

• Because the arbitration hearing is an extension of the collective bargaining process, I don’t like to exclude witnesses from hearings unless necessary. If credibility is an issue, a request to exclude witnesses will generally be granted.

Is there ever a situation where the grievant does not attend in a discharge case?

Why is it important to establish that the arbitrator has jurisdiction to decide the case at the beginning of the hearing?

• Jurisdiction – Because I have no independent judicial authority, I need to confirm with the Parties that they are granting me jurisdiction to hear and decide the case. At the beginning of every hearing, I ask the Parties if they agree that the grievance is properly before me for a final and binding decision on the merits. I also ask if the Parties want me to retain jurisdiction after issuing the award to aid in the implementation of the remedy, if a remedy is awarded.

Why is an issue statement important?

• Issue Statement – I need to know what the Parties want me to decide. In other words, what is the ultimate issue that brought this case to arbitration? I prefer an issue statement in the form of a question that does not include the arguments or factual conclusions of the Parties, but that is broad enough to cover their positions in the case.

What does an effective issue statement look like?

Did the employer violate the collective bargaining agreement when it terminated the employment of Sally Jones on March 17, 2014? If so, what is the remedy?

• An issue statement with problems might look like this: Was the employer justified in firing Sally Jones when she walked off the job after being given a direct order to return to her work station?

• Parties often disagree and have competing proposals for the wording of the issue statement. In most cases, if the Parties can’t agree they leave it to me to frame the issue based on their proposals. This approach saves hearing time and avoids unnecessary arguments.

What is an advocate trying to accomplish when making an opening statement at the hearing?

Opening Statements – Key points• Give the arbitrator the previews, not the whole movie.• Don’t over-promise about what you’re going to prove.• Advocates usually don’t need to read passages from

the CBA or from documents to the arbitrator during opening statements. Just reference the items you want the arbitrator to take particular notice of.

• Avoid name calling or personal attacks. Focus on the facts.

• If an advocate wants to type out the opening statement and read it at the hearing, I don’t have a problem with that. Advocates have a lot to think about and deal with in hearings and if writing out and reading the opening statement helps to reduce stress for the advocate, I’m all for it.

If you are the advocate who goes second, should you defer your opening statement until the start of your case?

What rules of evidence apply in labor arbitration?

• Evidence – Labor arbitration is meant to be a less formal process, and so the rules of evidence that apply in Court are not strictly applied in labor arbitration. Because the arbitrator usually doesn’t know much about the case prior to arriving at the hearing, arbitrators tend to admit more evidence than they exclude. Until the whole picture of the case emerges, an arbitrator can’t know precisely what’s relevant and what’s not.

What is the purpose of a closing argument or closing brief?

• Closing Arguments and Briefs – Taking the time after the hearing to write a brief has the advantage of giving the advocate a full opportunity to review the evidence and testimony and to summarize it clearly in writing for the arbitrator. Oral closing arguments at the end of the hearing can also be effective. In choosing between briefs and closing arguments, much depends on the type of case and the complexity of the issues and evidence involved.

How is the term “just cause” defined in the context of labor arbitration?

Just Cause - Generally, a common understanding has developed in the field of labor/management relations that just cause requires: • 1.) Notice to the grievant of the rules to be followed and

the consequences of non-compliance; • 2.) Proof that the grievant engaged in the alleged

misconduct; • 3.) Procedural regularity in the investigation of the

misconduct, and; • 4.) Reasonable and even-handed application of discipline,

including progressive discipline when appropriate.

• Progressive Discipline – – Is progressive discipline always required? – When is it not required?

• The late arbitrator Carlton Snow described the principle of progressive discipline in detail, but he then observed:– It is important to highlight the fact that no

limitation has been placed on the right of the Employer to remove an employee immediately. There clearly are certain offenses which are so severe as to justify immediate removal, regardless of prior disciplinary sanctions.

What if the employer calls the grievant as the first witness in a discharge case?

Burden of Proof• In a discharge case, the employer has the

burden of proof and goes first at the hearing. Arbitrators often apply a “clear and convincing” standard of proof when serious misconduct is alleged, and most arbitrators do not apply the “beyond a reasonable doubt” standard.

Credibility

Arbitrator Fleming wrote the following comment on the difficulty of making credibility judgments:• Arbitrators are not equipped with any special divining

rod which enables them to know who is telling the truth and who is not where a conflict in testimony develops. They can only do what the courts have done in similar circumstances for centuries. A judgment must finally be made, and there is a possibility that the judgment when made is wrong. (General Cable Co., 28LA97, 99 (Fleming; 1957))

• How can an arbitrator make a fair and reasonable credibility determination?

• What are the factors that support or undermine the credibility of a witness’s testimony?

• In a “he said/she said” situation, can the employer ever sustain the burden of proof needed to uphold the discharge?

Some of the factors that are helpful in assessing credibility or the lack of it include: • 1) The ability of the witness to perceive, to

remember and to communicate the facts about which the witness testified;

• 2) Consistency of the testimony and consistency with statements previously made;

• 3) The plausibility of the testimony; • 4) Corroboration or contradiction by other

witnesses, particularly ones with no bias or motive;

• 5) Corroboration or contradiction by other known facts; • 6) Bias, motive or interest in the outcome or the lack

thereof; • 7) Available evidence not used to substantiate

controverted testimony; • 8) The witness’s reputation for honesty or the opposite; • 9) Demeanor of the witness at the hearing and

demeanor observed during the investigation, and particularly whether the witness testified in a forthright or an evasive manner.

Past Practice

What does Past Practice mean in labor arbitration and when is it used?

Past practice may be used:• (a) to clarify ambiguous contract language; • (b) to implement general contract language;

or • (c) to create a separate, enforceable condition

of employment. Some arbitrators use past practice to modify or amend clear and unambiguous contract language.

The elements of past practice that have consistently been recognized in labor arbitration are: • 1.) Clarity and consistency of the pattern of

conduct. • 2.) Longevity and repetition of the conduct. • 3.) Acceptability of the pattern. • 4.) Mutual acknowledgement of the pattern by

the parties.

• The critical difference between mere prior conduct and past practice is the concept of mutuality. Unless it can be established that the alleged past practice represents a mutually agreed upon response to a particular situation, the prior conduct will not be treated as a past practice, but rather will be considered a mere, non-binding “present way of doing things.” (Bornstein, et al, Labor and Employment Arbitration, 2nd Ed., 10.01(1) (LexisNexis; 2005)

Off-duty Conduct

To what extent can the employer discipline employees for conduct that occurred off the premises outside of working hours?

The Family Feud

• Grievant, a 39 year old woman, works as a data entry clerk for a large employer that processes medical information.

• Grievant was charged with Residential Burglary and Assault 3, both felonies, as a result of a fight with her adult son’s girlfriend.

• The Court placed the Grievant in a diversion program that will give her a clean record in one year if she meets conditions.

• The Employer learned of the Grievant’s arrest through a single anonymous letter. (The Grievant missed only one day of work.)

• The Employer fired the Grievant for violating a company rule that says employees who engage in off-duty misconduct that materially affects job performance or brings discredit to the company may be disciplined or terminated.

• The relationship, or “rational nexus”, between the effect of the misconduct on the employee’s work or the employer’s business must be “reasonable and discernible” and “logically expected” to flow from the misconduct.

• Reinstate or don’t reinstate?

Arbitrators have generally upheld discharges for off-duty conduct when the conduct: • 1.) Harms the employer’s reputation or product,

or; • 2.) Interferes with the employee’s ability to work

effectively, or; • 3.) Leads to a refusal, reluctance or inability of

other employees to work with the person who engaged in off-duty misconduct.

My ruling: No just causes for termination as no rational nexus existed. • 1.) No prior criminal record. • 2.) This single incident does not establish an obvious tendency toward

violence. • 3.) No prior incidents at work of angry or violent behavior. • 4.) No relationship to the grievant’s employment. No one involved in the

off-duty incident other than the grievant had any connection to the employer.

• 5.) The grievant has the potential to have her criminal record cleared. • 6.) When confronted about her arrest, the grievant was forthright with the

employer. • 7.) No record of any adverse publicity for the employer. • 8.) A single anonymous letter is not sufficient to show injury to the

employer’s reputation.

The Recorded Meeting

• Jane is about to enter her supervisor Jim’s office for her annual employee evaluation. She realizes that she doesn’t have pen and paper to take notes of the meeting and so she takes out her smart phone, hits record and puts the phone back in her pocket. She does not mention to Jim that she is recording and the phone stays in her pocket. Jane and Jim have a good working relationship and at the end of the meeting Jane considers the review to be reasonable and satisfactory to her.

• When Jane leaves Jim’s office, she takes out her phone and listens briefly and then says to no one in particular “I got it.” A co-worker standing nearby observes Jane’s actions and goes into Jim’s office to ask if he knew that Jane recorded the meeting.

• Jim is upset and later in the day he calls Jane in to ask her about the recording. She freely admits that she recorded the meeting and apologizes. She explains that she wanted to have a record if Jim made suggestions about things she should be doing to improve her work. Jane erases the recording right then in Jim’s presence.

• Jim remains concerned. This event took place in a state that has a statute that makes recording a conversation without the knowledge or consent of all parties to the conversation a misdemeanor. Jim calls the police and, after talking with Jane, the Police Officer issues her a citation. Jane goes to Court and is given a deferred sentence and a $250 fine.

• Jim fires Jane for violating a company rule that states that employees must conduct themselves with honesty and integrity at all time. Jane is a ten year employee with no prior discipline on her record.

• Did Jim have just cause under the collective bargaining agreement to terminate Jane’s employment?

• My Ruling:• 1.) She realized almost immediately that she made a mistake.• 2.) She apologized to Jim.• 3.) She erased the recording almost immediately, did not listen to it

herself and did not play it for anyone else.• 4.) The recording was not used to embarrass Jim or to undermine his

authority.• 5.) The grievant had an innocent explanation – she wanted to have notes

in case Jim made suggestions for how to improve her work.• 6.) The grievant and Jim always had a good working relationship

previously and so she had no motive for making a recording to use against Jim.

• 7.) The grievant is a ten year employee with a clean record of discipline.

New Frontiers

• Legal marijuana – • For alcohol, a Blood Alcohol Concentration

of .08 is per se evidence of intoxication for operating a motor vehicle in many states – what is the measure of impairment with drugs?

• Major issues – • What does presence of the drug in the system mean?

Is someone watching you and does it matter?

• Social media• Video surveillance • GPS technology • Computer monitoring

Thanks for inviting me.