Wednesday, October 27, 2010

Labor Arbitration Conference - 2010

Contributions from:
Vanessa Armstrong, MS ‘11
Adeyemi Ogunade, MS ‘11
Sarah Soares, MS ‘12

On October 1,  2010, the SLRC hosted its 11th Annual Labor Arbitration Conference at the Marriott Hotel in Newport, RI. Attendance at this year’s conference was higher than our previous high set last year. There were 157 attendees including SLRC students Vanessa Armstrong, Alexis Lyman, Bill Maccarone, Yemi Ogunade and Sarah Soares

Professor Mark Grossman assembled an excellent group of speakers who addressed a number of important issues in the field of arbitration.

Tough Times Call for Tough Negotiations and Arbitrations
Mark Gursky, Jeffrey W. Kastle & Paul C. Reed
In the wake of the recent economic meltdown the response of employers both, in the private and public sectors of the economy, is to tighten budgets while at the same  time shed recurrent expenditure which in most cases boils down to personnel cuts. Mark Gursky emphasized the ironic condition of public sectors workers where in one breath they are told by top public officers about huge budget constraints leading to salary freezes  and on the other hand witness these officials receive huge compensation packages with benefits running into hundreds of thousands. The economic climate has encouraged employers to increasing use tactics like concession bargaining and judicial authority to overturn contractual obligations agreed upon in the CBA and ultimately impinge upon the fidelity of the arbitration process. It is not unheard of to see employers file chapter 11 and reorganize as a strategy to void CBA and thus avoid costs in terms of increased wage bill. In his recommendations to unions Mr. Gursky opined that unions should not only seek redress in Federal courts of law with more pro-union precedent but also seek to rebuild alliances with the grassroots and develop a political power base to change state legislation in their favor.

Other panelists affirmed the undeniable realities of the depression and proposed mid-term bargaining between union and employers to properly address and seek creative solutions to the new economic verities. Jeffrey Kastle was of the opinion that unions ought to be more open to the idea of mid-term bargaining and making concessions that would in the long term enhance labor relations. With interest-based arbitration used to resolve any niggling concerns that arises between both parties during mid-term bargaining.

Managing and Defending Difficult Employees
Sue Ellen Dunn & Gerard E, O'Neill
Managing and defending difficult employees is a delicate balance for the employer and the union. Sue Ellen Dunn focused on how the employer can mitigate risk, build relationships and make the right decision for all parties involved. When issues with difficult employees arise the focus must first be placed on areas including job performance, attendance and conduct in the workplace, this is the primary fact finding that must be conducted. As the employer you should know the job duties and any special requirements. Open communication with the employee and the union is essential because, depending on the situation, the union can be an ally because avoiding arbitration may be the ultimate goal, the employer may still find itself in arbitration despite best efforts.

There may be an actual valid excuse for misconduct including an employee that is bi-polar or has ADHD. In this case the employer should consider EAP but should not make it mandatory and only use EAP if it is appropriate (more serious cases). If EAP is mandatory the EAP should report back to the employer as to the employees’ progress. When issues may be in the context of the ADA the process should be flexible and interactive. The employee and employer should make reasonable proposals for accommodation to do essential functions of the job keeping in mind to be careful to ensure the law is followed, it should not  be just about the employee wanting to do another job.

When dealing with physicians, ask the physicians what you can do as an employer. Fitness for duty should not be an employee choice, employers should require the evaluation at no cost to the employee,  and the employer should inform the physician the job duties and any problems. The physician will give you an expert independent decision and make recommendations what to do next. 

Gerard E. O’Neill focused on several considerations when dealing with employees who may be slightly unbalanced, the competency, liability, or a threat. He recommended that a union official is always be present and the fact that the employee may need a friend or relative to assist with the process. Difficulties arise when clients don’t tell the truth where he recommended jettison if possible and asking for records before moving forward. In multiple discipline clients and multiple attorney clients it is more difficult to win. Conflicting claims, poor behavior and poor record keeping are all red flags when trying for a win for the client.  

Looking Over Your Shoulder: Surveillance in Employee’s Vehicles, Computers and Other Intimate Places
Susan R. Brown &  Bonnie J. McSpiritt
With the prevalence of employee monitoring in labor management, many issues arise when arbitrating matters of surveillance. The presenters outlined reasons for surveillance, two being routine and suspicion-based surveillance. Routine surveillance, which may be necessary for safety purposes or performance oversight, is conducted in the course of doing business and is applied to everyone in a given category. Routine monitoring can be used in the pursuit of suspicion-based surveillance. The speakers explored many methods of surveillance, including time clocks, human observers, global positioning systems, cell phones, computer monitoring, identification badges, video surveillance, and radio frequency identification.

The presenters made several precautions for employers regarding the use of surveillance. It was suggested that employers ensure their surveillance policies reflect what they aim to accomplish. In writing policy, the language should be tailored to the specific workplace, stating both the types of surveillance that might be conducted, and areas which might be excluded from surveillance. When addressing surveillance in the workplace, an employer should consider whether it is covered by the National Labor Relations Act as well as what state laws say about audio surveillance and privacy. When presenting surveillance evidence before a neutral arbitrator, it is important not to assume that what is seen in the evidence, such as a videotape, is evident to an outsider. Before using such surveillance evidence, evaluate the evidence objectively to determine if there is a viable case for the arbitrator.

Ways to Expedite the Arbitration Hearing and Also Make it Less Expensive
       Matthew M. Bodah & Joan Dolan   
With ever increasing costs of arbitration hearings and the increased amount of time it takes to resolve a grievance it becomes imperative arbitrators seek ways to help check this growing trend. Time and money can be saved by properly administering the pre-hearing phase of an arbitration, scheduling of the actual arbitration and during the course of the actual hearing. Prof. Bodah proposed measures to help expedite arbitration in the pre-hearing phase. He suggested the proper definition of the meaning of a grievance within a contract, with both parties actually negotiating and agreeing on a definition that is neither too broad or narrow. Other suggestions in the pre-hearing phase include ensuring a grievances are written down as soon as possible,ensuring contracts have appropriate time limits for grievances  and proper training for union stewards and HR representatives in proper investigatory procedures prior to arbitration. Here a possible method proposed is the mandatory joint fact finding committee of both union and management that would help in articulation of the issue and agreement on the facts of the case prior to the arbitration hearing which significantly reduces time wasted on arguing facts during hearings.

Other suggestions  include proper appraisal of grievance to ensure scheduling of appropriate time to hear and arbitrate case and thus avoid dragging out the arbitration process due to scheduling constraints with the arbitrator. Efficient scheduling saves time and money. Using the cheapest labor possible for non-essential tasks like transcribing e.t.c , to avoid wasting arbitrators time on mundane tasks and ensure optimal time is spent on making the decision regarding the case. Finally arbitrators could encourage and facilitate voluntary discourse between both parties to help communication, which helps expedite pending issues.

Violence in the Workplace: Dissecting the Termination Case:
Thomas R. Landry & George H. Rinaldi
The session was opened with the OSHA definition of workplace violence as violence or the threat of violence against workers. The panel them surprised the audience with the fact that homicide was the fourth leading cause of workplace deaths. Employers concerns with workplace violence were covered first including concerns with reputation, law suits, control issues, and issues that could roll into Title 7. The union concerns were member to member issues and the fact that zero tolerance does not equal immediate termination. With those concerns in mind the panel reviewed whether or not employer should have a workplace violence policy and if a policy exists to what depth should it cover. A simple policy may not cover enough and leave too much room to interpretation and a strict policy of zero tolerance can lead to issues in enforcing the policy. The panel discussed disciplinary factors and defenses including considerations of the level of violence, who the target is, the location, and any prior disciplinary record. Defenses included self defense, horseplay (threat vs. shop talk), cultural sensitivity, and an ADA disability defense. The union has to make many considerations and balance are their members safe and working through what members should actually be defended. Ultimately it comes down to what type of policy should the employer have, workplace violence (simple vs. complex), a bullying policy or no policy at all.

Context Matters: An Explanation of Perceived Inconsistencies in Disciplinary Cases
Lawrence Katz & Elizabeth Neumeier
The panel of arbitrators addressed a number of perceived inconsistencies in disciplinary cases and posed a number of scenarios to illustrate the importance of context when considering the offense, employment, and discipline. For employees, instances such as off-duty convictions, charges filed and later dropped, publicized arrests, or perceived threats, can greatly influence an employer’s course of action in discipline. This raises the question, should employees be punished for something done outside the workplace? When these issues arise, employers may discharge the employee for two reasons: determination that in light of the findings the employee is no longer suitable for the position or fear that the offense may be repeated on the job, also known as preventative discharge. An employer should question, what is the nexus of the offense to the employment? An employer must also consider the context of the offense and employment: Can the implication of the conviction be overwritten by a good record of employment? While an employer may be inclined to avoid discharge, especially of a good employee, other influences such as past practice or pressure from the public may lead the employer to take action for its own protection.

The panelists concluded with the issue of threats in and outside the workplace. Of great importance is where an employer draws the line in determining if a threat is real. What is the workplace policy on threats? Employers must decide if the threat warrants discipline and education, or the employee should be discharged. Due to this uncertainty and the possibility of misinterpretation, many employers have no-tolerance rules for threats and have prohibited some language altogether in the workplace. It is important for employers to establish clear and consistently enforced policies regarding threats.

Arbitrating in the Public Sector 
Darren F. Corrente & Thomas J. McAndrew
The statutory role of the arbitrator was explored at length in this segment of the conference  especially especially in relating to public sector grievances and the recent rising trend of courts in Rhode Island overturn arbitration decisions. the discourse centered on how to balance the statutory responsibilities of the negotiators expounded by the supreme court in the Trilogy, against the excesses of an arbitrator dispensing his/her own brand of industrial justice.  In light of recent R.I court rulings overturning arbitrations, the panelists opined that arbitrators should stay within the four corners of the CBA in making rulings in cases, especially in public sector cases where decisions have broader implications. Arbitrators should put foreword sound reasons grounded in the contract or past labor relations practices for decisions. Further arbitrators should avoid replacing facts of the case with biases in order to preclude judicial intervention.

On the other hand  the panelist stated that both labor and management advocates in arbitration cases ,irrespective of the outcome of the decision ought to insist upon the fidelity of the arbitration process,as an extension of the CBA, except in egregious cases of misconduct by the arbitrator highlighted in the trilogy. Other issues discussed include the imperative of a nuanced approach to arbitration when dealing with the public sector cases due to sundry civil service laws and municipal ordinances that overlap with the typical private sector scheme thus limiting the scope of arbitration on certain issues in the public sector.Overall the discussion centered on the need to push for new legislative provisions that would help clarify public sector employers bargaining positions and limit the penchant of public sector employers exceeding their authority in agreeing to certain provisions in the CBA. Which in many respects is the root cause of grievances in the public sector.

The Pros and Cons of Private Sector Interest Arbitration Provisions
Jack Callaci & Joseph D. Whelan
In this session the panel spent time imposing the importance of preparation in the arbitration process.  With private sector interest arbitration the parties cease the right to strikes, lockouts and impasse. It is rarely used in the private sector and there are many considerations that must be determined including: selection of an arbitrator, the hearing procedures, the authority of the arbitrators and post hearing issues. The panel stated there should be a template, definitions should be known, comparables should be defined and the whole economic package should be known. Both parties need to consider if the arbitration will put them in a better position, what they are trying to achieve, and the impact of someone else making the decision. The union’s perspective may be how many unions are winning strikes (is it smart to waive the right to strike if unions are winning). The employer’s perspective is that interest arbitration doesn’t create a panic for agreement, there is time to prepare and the prohibition of a strike allows for a better chance of maintaining a positive relationship with the union. For both parties the considerations have to be weighed and decisions need to make with both parties what the best alternative will be.

Classic, Difficult Issues That Arise During Arbitration Hearings and How to Resolve Them
Joseph M. Daly & Michael W. Stutz
The very nature of arbitration proceedings  demand mental acuity to deal with nuanced issues on a case by case basis. Despite this certain issues frequently arise during arbitration hearings and knowledge of the classic solutions to these problems espoused by preeminent arbitrators becomes crucial. The panel discussed some thorny issues that frequently arise in arbitration and classic solutions to these issues. Questions like, what happens when management calls the grant as it’s first witness in a case, what to do when a union steward is called by management and asked to testify about consultation with the grievant, how to handle requests by interested third parties  to attend or participate in arbitration hearings and what to do when the union steward calls company HR manager and asks him/her to testify about internal documents. These as well as other troublesome issues were extensively discussed.

To Arbitrate or Not: Considering the Investigatory Process, Weingarten, Loudermill, last chance agreements, and other settlements.
Jean E. Zeiler & Steven A. Torres
Many issues should be considered when deciding whether to take a case to arbitration. A key component of this process, taking place before the disciplinary hearing, is the investigatory interview. During the investigatory hearing, either party may solicit new information from a charged employee, or verify information already received. If an employee has a reason to believe he may be disciplined during a meeting with an employer, his Weingarten rights allow him to have the union representative available at that time present at the meeting. It is essential to make these Weingarten rights known to the employee, for an employer’s failure to allow the presence of a union representative can result in an arbitrator declining to uphold the discharge. Since the union is faced with the issue of the duty of fair representation, it should have a good faith reason for not taking a case forward after a fair investigation has been completed before it can be free of such DFR violation accusations. The duo offered tips for constructing last chance agreements, noting that these agreements are best if they define the triggering event leading to the last chance agreement. It was also noted that a last chance agreement protects the union from violating the duty of fair representation and the employer from future instances with the employee.

The panelists discussed additional factors which influence the decision for an employer or union to take cases to arbitration or settle.  Each party should consider the cost of taking a case to arbitration, weighing in on the cost of trying the case and the amount which would be owed to the employee outside of liability if the case is lost. Both parties will participate in case valuation, or determining the probability of success of the case based on the merits of the case, including the strength of the evidence and proof. The non-tangible issues of public relations and politics also influence the decision to arbitrate such that either side may not want to arbitrate or appeal. Lastly, once an arbitrator is selected, either party may choose to settle after reviewing the arbitrator’s profile and previous decisions.

Effective Advocacy in the Arbitration Process
William E. O'Gara Jr. & Stephen T. Fanning
The focus of Steve Fanning’s presentation was the need to carefully prepare for any hearing with an eye towards simplifying the case.  Preparation requires that any potential witness be interviewed and an outline on the questions prepared.  The advocate should also spend time to identify what exhibits will be needed.  An overlooked tool according to Mr. Fanning is contacting the opponent before the hearing to see what issue can be stipulated to with an eye towards eliminating unnecessary testimony and evidence.

Mr. O’Gara focused on the need for an advocate to spend time outlining cross examination of likely opposing witnesses before the hearing.  Cross examination is fundamentally different than direct examination.  While direct testimony allows a witness to tell his story, cross examination is designed to develop facts that undermine that story.  To be effective, cross should be concise and geared to developing facts that support one’s theory of the case.
A common failure on cross examination is to simply track the direct testimony.  An additional trap is asking open-ended questions that allow the witness to offer self-serving answers.  Advocacy requires at least a basic ability to cross examine a witness.  Echoing the comments of Mr. Fanning, Mr. O’Gara emphasized the need to prepare for the hearing and outline the testimony that one needs to develop on cross examination.

Mark did an outstanding job of organizing the annual event. Next year's conference is scheduled for October 7, 2011 at the Marriott in Newport

Our 24th Annual Labor and Employment Law Conference is scheduled for April, 292011 at URI's W. Alton Jones Campus in West Greenwich, RI.

Click Here to view the 2010 Arbitration Conference brochure

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