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Disputes. Generally, an arbitrator may only hear a “grievance” (as defined by the agreement) that is processed to arbitration arbitration the final step in the grievance procedure If matter is not a grievance May not be raised through the grievance procedure Is not arbitrable

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disputes
Disputes
  • Generally, an arbitrator may only hear a “grievance” (as defined by the agreement) that is processed to arbitration
    • arbitration the final step in the grievance procedure
    • If matter is not a grievance
      • May not be raised through the grievance procedure
      • Is not arbitrable
  • A case is not arbitrable if an arbtrator is not authorized to hear it
arbitrability
Arbitrability
  • An argument by one party, usually the employer, that the arbitrator does not have the authority to hear the case
  • Processing a case through the grievance procedure does not mean that the employer acknowledges that it is arbitrable
    • Arbitrability contention must be raised through the grievance procedure
    • “Waived” or “Maintained”
two types of arbitrability
Two Types of Arbitrability
  • Procedural Arbitrability
    • Party (union) did not meet the procedural requirements of the procedure
      • Time limits
        • Waiver by parties?
      • Did not properly specify grievance
  • Substantive Arbitrability
    • The complaint of the grievant/union does not meet the requirements of a grievance as defined in the collective bargaining agreement
  • Blend of Procedural and Substantive
    • Example – an amendment of the grievance
resolving arbitrability disputes
Resolving Arbitrability Disputes
  • Procedure
    • Technically by courts
    • Practically by arbitrator
  • Doubt to be resolved in favor of arbitrability
    • U.S. Sup. Ct. in Warrior and Gulf
    • Preference for arbitration and parties process for resolving dispute
arbitrator resolution of arbitrability issue
Arbitrator Resolution of Arbitrability Issue
  • Single Hearing (most common)
    • Parties agree to submit to arbitrator
      • Arbitrability
      • Merits
    • Arbitrator will first decide arbitrability
      • Not arbitrable – no decision on merits
      • Arbitrable – decision on merits
  • Bifurcated Hearing
    • First Hearing on abitrability
    • If arbitrable, second hearing on merits
arbitrator selection systems
Arbitrator Selection Systems
  • Ad Hoc
    • Federal Mediation and Conciliation Service
    • State Agency (Michigan Employment Relations Commission)
    • American Arbitration Association (private)
  • Permanent Panel
    • Rotate
    • Earliest hearing date
  • Single Umpire
issues associated with selection systems
Issues Associated with Selection Systems
  • Ad Hoc
    • Arbitrator clean slate, absence of preconceptions
    • Not familiar with industry or parties
  • Permanent Panel
    • Familiar with parties
    • May have preconceptions of parties
  • Single Umpire
    • Similar to permanent panel
    • Certainty
scope of arbitrator s authority
Scope of Arbitrator’s Authority
  • Narrow
  • Limited by
    • collective agreement
      • arbitrator may not render a decision inconsistent with the collective agreement
        • “may not add to, subtract from, modify, or otherwise alter”
      • Issue presented
      • Record provided
        • What evidence to be considered?
        • Entire agreement or only those provisions cited?