Almost every union contract has a provision that requires that disputes be settled by final and binding arbitration. Preparing for arbitration is essential. Here are some pointers on arbitration preparation and procedures.
Grievance answers and choosing an arbitrator
Always answer grievances with an eye toward arbitration. Answer the merits of the grievance, and raise all procedural objections (e.g., timeliness).
If you have not agreed on a list of acceptable arbitrators with the union, be careful when choosing the arbitrator. Carefully consider what the case is about and the arbitrator’s background. If you and the union can’t agree on an arbitrator, you may have to select one from a panel from the American Arbitration Association or the Federal Mediation and Conciliation Service. Seek input from colleagues or counsel if needed.
Transcripts and awards
I highly recommend that a transcript of the proceeding be taken. A transcript will aid the arbitrator in both hearing and recalling the facts. It will also aid you in preparing a posthearing brief.
If your collective bargaining agreement (CBA) is not clear, tell the arbitrator before the start of the hearing that you want her to provide a reasoned opinion and award. A reasoned opinion is an explanation of why the arbitrator ruled the way she did. Although reasoned awards are the norm in labor arbitration, if you simply ask for an award, you may get a decision that reads, “Grievance granted” or “Grievance denied” without an explanation. If the grievance is granted, you will have no way of knowing whether the award can be challenged in court. Challenges of awards are usually limited to situations in which the arbitrator exceeds her authority under the CBA. Without a reasoned opinion, you will have no way of knowing whether the arbitrator exceeded her authority.
Witnesses and burden of proof
In cases in which the terms of a contract are disputed, the party who filed the grievance will bear the burden of proof and must present evidence first. In discharge cases, the employer will bear the burden of proof and must present evidence first. You will have to provide live, credible witnesses at the arbitration proceeding to persuade the arbitrator. Be prepared to present documents that support the discharge or discipline decision.
In discipline or discharge cases, you will need to prove that the employee committed misconduct and that progressive discipline was followed. Also, you will have to rebut the union’s claim that the employee was treated differently than other employees who committed the same offense. If your witnesses are not supervisors, obtain a subpoena from the arbitrator to compel their testimony.
I highly recommend that employers file a posthearing brief. Most arbitrators provide parties 30 days to file a brief. Submitting a posthearing brief to the arbitrator is usually well worth the expense and time because it allows you to paint a complete picture after all the evidence has been entered into the record. A well-written brief can help the arbitrator form an opinion that is favorable to you.
Preparing for arbitration requires attention to detail. Preparation begins with your initial answer to a grievance and continues through arbitration and the drafting of a well-written posthearing brief. Good preparation provides your company with the best chance of success.
Gary Fealk is an attorney and shareholder at Vercruysse Murray P.C., in Detroit. His practice focuses on the areas of labor and employment litigation on behalf of private and public sector employers including cases involving non-competition agreements, discrimination claims, the Fair Labor Standards Act, National Labor Relations Act, OSHA, and ERISA, including multi-employer benefit fund collection actions. You may contact him at firstname.lastname@example.org.