Arbitration Process Overview Part I

What is Arbitration?

A process of dispute resolution in which a third party neutral (arbitrator)

renders a decision after a hearing at which both parties have an

opportunity to be heard.

What can an Arbitrator do?

An Arbitrator is empowered only to resolve the issues submitted. The scope of this ability is defined by the collective bargaining agreement (CBA), the issue as defined by the parties, and law.

What Arbitration is not.

Not an employer procedure.

Not a court of law.

Not an state or federal administrative agency

Does not exist outside the CBA.

Goals in ArbitrationProve the case.

Answer the other parties case

Proving the Case

Facts.Contract language.Law, rule or

regulation.Parties’ intent.Past practice.Arbitration

precedent.

Prior to Arbitration

Re-evaluate facts.

Re-evaluate remedy requested.

Interview potential witnesses.

Review all documents.

Review relevant employer policies

Request information

Review previous related issues and facts.

Double Check the Case File

Selecting an ArbitratorCollective Bargaining Agreement language is controlling.

Panel may be established

Federal Mediation and Conciliation Service (FMCS), American Arbitration Association (AAA), State Mediation and Conciliation Service (SMCS)

Select an Arbitrator

Preparing Case for Arbitration

Gather all information needed to present case.Identify witnesses and interview them. Know what they

will say in arbitration.Make copies of all documents for arbitrator and for

Management.Determine what information and facts can be stipulated in

conjunction with management.

Pre-Hearing Conference

Joint Exhibits.

Joint Stipulations.

Definition of Issue.

Appearance and Availability of Witnesses.

Housekeeping.

Joint ExhibitsJoint exhibits are documents and other evidence for which the parties agree that authentication and foundation are not required.

Joint exhibits may be documents that are contested in terms of weight and veracity.

Exhibits that are not joint may be introduced separately by either party with proper authentication and foundation.

Examples of Joint Exhibits

Collective bargaining agreement.

Grievance package.

Relevant agency regulations, policies and orders.

Copies of statutory regulations.

Joint StipulationsJoint stipulations are facts that are agreed to by the parties.

An arbitrator cannot deviate from jointly stipulated facts and issues.

Parties cannot argue contrary to joint stipulations.

Reduces the complexity of the hearing.

Do not stipulate to damaging facts!

Examples of Joint Stipulations

Names, dates, events.

Past practice.

Agency actions and underlying intent.

Issues.

Defining the IssueDisciplinary cases: Do the facts support the

charges? If so, is the discipline appropriate? If not, what is the remedy?

Contractual cases: Did the agency violate Article XXX of the CBA when it . . . ? If so, what is the appropriate remedy?

Regulatory/statutory cases: Did the agency violate XXX when it . . . .? If so, what is the appropriate remedy?

Issue Definition

Question format.

Request remedy.

Jointly Stipulated v. Party Submission.

Housekeeping

Room and set up.

Sequestering witnesses.

Observers.

Arbitration Hearing

Formal hearing. Witnesses are generally sworn in.

Arbitration consists of:Opening statementStipulated facts and

documentsWritten evidence from each

partyWitness testimonyFinal closing (oral and/or

written)

Arbitration Hearing

Don’t fight with the arbitrator.

Don’t waste the arbitrator’s time

fighting with management.

You are there to convince the arbitrator, not management.

Settlement may be negotiated at any time until receipt of arbitrator’s decision.

You know what you get!