Mgmt 583

Chapter 15: Grievance ArbitrationFall 2008

Rights Arbitration

Steelworker’s Trilogy - the legal foundations of rights arbitration. Establishes the conditions under which federal courts are permitted to overturn and arbitration award. If these conditions are NOT met, federal courts may not intervene.

Steelworker’s Trilogy United Steelworkers v. Warrior & Gulf Navigation,

363 U.S. 574 (1960) A party is required to arbitrate a dispute if a CBA

provides for arbitration, unless it can be stated with positive assurance that the arbitration clause does NOT apply to this particular dispute.

In practice, the language in the CBA should specifically exclude the issue from arbitration.

Steelworker’s Trilogy United Steelworkers v. American

Manufacturing Co., 363 U.S. 564 A court may not rule on the potential merits of a

grievance in determining its arbitrability, even if the claim appears to be frivolous to the court.

Courts are limited to ascertaining whether the parties agreed to submit a matter to arbitration.

Steelworker’s Trilogy United Steelworkers v. enterprise Wheel &

Car Corp., 363 U.S. 564 An arbitrator’s award must be enforced so long as

the none of the following condition have occurred: Fraud on the part of a party. Dishonesty on the part of the arbitrator. The award was not drawn from the essence of the

contract.

Arbitration United Paper Workers v. Misco, 484 U.S. 29 (1987).

Isaiah Cooper was an employee of Misco, Inc., Monroe, LA. On January 21, 1983, the police searched Cooper's house pursuant to a warrant, and a substantial amount of marijuana was found. A police officer was detailed to keep Cooper's car under observation at the Misco's parking lot. At about 6:30 p.m., Cooper was seen walking in the parking lot during work hours with two other men. The three men entered Cooper's car momentarily, then walked to another car, a white Cutlass, and entered it. After the other two men later returned to the plant, Cooper was apprehended by police in the backseat of this car with marijuana smoke in the air and a lighted marijuana cigarette in the frontseat ashtray. The police also searched Cooper's car and found a plastic scales case and marijuana gleanings. Cooper was arrested and charged with marijuana possession.

Arbitration United Paper Workers v. Misco, 484 U.S. 29

(1987). Employee was discharged for possession of drugs on

company property. United Paperworkers International Union filed a

grievance challenging the discharge. The Discharge went to arbitration.

The Arbitrator, Dr. Milden J. Fox, Jr., reduced to a lesser penalty.

Misco took to 5th Circuit on the grounds the award was contrary to public policy (plant safety was threatened).

Arbitration United Paper Workers v. Misco, 484 U.S. 29

(1987). Dr. Fox’s comments in his award:

"The only thing that the Company has proven is that the Grievant was sitting in the back seat of a car in which there was found a lit marijuana cigarette in the front seat ashtray . . . ."

Arbitration United Paper Workers v. Misco, 484 U.S. 29

(1987). Arbitrator’s award:

Drugs were used off the work site according to the grievant.

The contract did not mandate termination for the offense (an employee could be terminated for drug possession). Consequently a lesser punishment could be imposed.

Arbitration United Paper Workers v. Misco, 484 U.S. 29

(1987). Supreme Court:

A public policy violation was not clearly shown. The contract did not require termination for the

offense. Since the award was drawn from the essence of the

contract, the arbitrator could impose a lesser penalty.

Deferral to Arbitration NLRB may defer to arbitration disputes that

involve both unfair labor practices and contract violations. NLRB retains more control over deferrals than a

standard arbitration. The NLRB make revoke a deferral under the

Speilberg doctrine

Deferral to Arbitration Spielberg Manufacturing Co., 112 NLRB

1080 (1955). Conditions that must be met before the NLRB accepts an arbitrator’s award on a deferral. The arbitration proceedings must be fair and

regular. Arbitration of the matter must be mandatory and

binding.

Deferral to Arbitration Spielberg Doctrine

The arbitration award cannot be contrary to the NLRA or the principles established by the NLRB (must follow precedence)

The arbitrator must specifically consider the ULP in his/her award. Must be expressly presented and considered by the

arbitrator.

EEO and Arbitration Alexander v. Gardner-Denver Co., 415 U.S.

36 (1974). If the grievant is dissatisfied with the arbitration

award, he/she may still make a claim under Title VII.

EEO grievances may be re-litigated after arbitration.

Arbitration Pre Arbitration Matters

Have procedures in the CBA been followed? Is it possible to resolve the matter internally? Have the timeliness provisions of the grievance

procedure been adhered to?

Arbitration Selection of the Arbitrator

May have a specific arbitrator designated in the CBA (a permanent umpire).

More often ad hoc arbitrators are used. Three sources of arbitrators:

National Academy of Arbitrators. American Arbitration Association (AAA) FMCS

Arbitration Prehearing Activities

Review the history of the case. Ascertain all contract clauses having bearing on

the case (more than one clause may be affected). Determine the scope of the arbitration (what can

or cannot be awarded). Question any (if any) witnesses.

Arbitration Prehearing Activities

Prepare a written summary of expected testimony.

Organize relevant records and documents (to include notes from bargaining sessions).

Conduct a physical examination of the site where the dispute arose.

Prepare statistical & pictorial exhibits.

Arbitration Prehearing Activities

Consider the firm’s past practices (look for consistency).

Identify the critical point upon which the award is likely to turn. Prior warnings in a discharge case. Knowledge of a specific work rule.

Support “interpretation” cases with written arguments.

Arbitration Prehearing Activities

Support “interest” cases with appropriate economic, statistical, or relevant data (justifications for temporary out-sourcing, e.g.).

Try to establish precedence from previous arbitration awards.

Prepare an outline of your case and disseminate it to group members.

Arbitration Hearing

Parties may include the grievant, attorneys, company officials, and union officials.

The union, bringing the grievance, usually goes first.

The Management has the burden of proof in discharge and discipline cases.

Arbitration Hearing

The union has the burden of proof in al other cases.

The rules of evidence are more liberal than in a court of law.

Arbitration Post-Hearing

Either party may still submit briefs (additional information in writing).

Only after the briefs are collected will the arbitration begin his/her award.

Arbitration Arbitration Awards & Remedies

Format of the award: Summary of the evidence. Rationale behind the award. The award itself. Corrective action that is required to satisfy the

award.

Arbitration Arbitration Awards & Remedies

In preparing their awards Arbitrators must consider the following: Determine if the award is arbitrable. Was the issue involve an actual contract violation. Were the grievance procedure/steps properly

followed. Finally, the arbitrator may now judge the case on

its merits.

Arbitration

Expedited Arbitration Used primarily for individual discipline or

discharge cases Arbitrator hears several cases instead of a single

arbitration in a single hearing. The written awards are very short. These are designed to expedite very straight-

forward cases.

Arbitration

Tripartite Arbitration Used primarily for extremely important cases Three arbitrators hear a single issue. The award is based on majority of the panel.