1. Mgmt 583 Chapter 15: Grievance Arbitration Fall 2008

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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).

8. 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...."

9. 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.

10. 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.

11. 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

12. 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.

13. 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.

14. 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.

15. 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?

16. 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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

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