Grievance Arbitration Iowa Professional Fire Fighters University of Iowa Labor Center
Grievance Arbitration • Informal dispute resolution • Substitute for court • Faster/cheaper • Not as formal • Final • Arbitrators, not judges Hi, it’s me again..
Grievance Arbitration • Procedure is very different from impasse arbitration • Much more formal • More like a trial • Follows the same procedure
Educate the Arbitrator • The arbitrator probably knows nothing about your city, your union. • The arbitrator probably knows something about contract interpretation, but nothing about your contract or your bargaining history. • The arbitrator usually will arrive knowing nothing about the grievance he/she is about to decide. • Give the arbitrator some background information, especially if there is something special or unique about your contract.
What’s this case about? • Two employees have a dispute about who has the most seniority. The City’s seniority list shows that Allen has more seniority, because he was hired first. Bob has filed a grievance saying that Allen’s time as a supervisor shouldn’t count. • “What’s the issue of the case?” • “Seniority.” • “Did the City violate Article 4, Section 2 of the contract when it included time spent in a supervisory position in the calculation of Allen’s seniority? And, if so, what is the appropriate remedy?”
Framing the Issue • What’s the question that you are asking the arbitrator to answer? • Should refer to the specific contract language that’s in dispute. • Should be phrased as a question. • Question should suggest the answer.
Framing the Issue • Article 2, Section 3, of the contract says that, “Local union officers may request union leave in increments of one hour. Requests for union leave shall be approved, unless the absence of the person requesting leave would significantly disrupt production.” • The local president asked for a week off to attend this conference. The company denied the request. The HR director said, “We’d probably have to pay overtime to replace the president while he was gone.”
Framing the Issue • What’s the issue? • What contract language is in dispute? • How would you frame the issue? • “Is the possibility of overtime the same as a significant disruption of production?”
Hearing Procedure • Department of Redundancy Department • “I’m going to tell what I will be telling you.” • I’ll tell you.” • “I’ll tell you what I told you.” • Preview, main event, de-brief
Part 1- Opening Statement • Summary of what the case is about. • Longer discussion of the issue. • Description of our theory of the case. • “Bargaining history is crucial to understanding the contract language in this case.” • Highlight the best evidence • “The union will be calling our former president, Barney Rubble, who will testify, based on his own recollection and his notes from the 1979 bargaining that…”
Part 2 - Evidence • People testify under oath • Direct testimony • Cross-examination • Rules of evidence are not as strict • Hearsay is admissible • But not necessarily convincing • Exhibits
Part 2 - Evidence • Who goes first? • Who has the burden of proof? • Discipline = employer • Contract interpretation = union • What’s the standard of proof?
Part 3 – Closing/Brief That was all very interesting. I’ll be sending you my decision in a few weeks.. I • Summary of case • Analysis of the issues involved
How Does He Decide? • Rules of contract interpretation • What are they? • Polestar • Bargaining history • Past practice • Inclusio unius est exclusio… • New over old • Specific over general, etc.
Finality • Arbitrator says, “I listened carefully to all the witness and examined each of the exhibits. I read the briefs of both parties and thought long and hard about the case. I think the employer’s argument is more persuasive. The grievance is denied.” • Why did you lose? • What can you do about it?
Finality • Standard is whether the arbitrator’s decision, “drew it’s essence from the collective bargaining agreement.” • Was the decision based on the arbitrator’s interpretation of the contract language and the evidence from the grievance hearing? • Does the decision violate a specific law or a strong public policy?
Finality • Arbitrator says, “I listened carefully to all the witness and examined each of the exhibits. I read the briefs of both parties and thought long and hard about the case. I just couldn’t decide who was right, so I flipped a coin and the union lost. The grievance is denied.” • Can you do anything about this decision? • What will you get if you win?
Precedent • Arbitrator’s decision decides that issue under your contract. • Doesn’t establish binding precedent under other contracts. • Doesn’t apply any longer if contract language changes.
Resouces • How Arbitration Works • Other books (BNA) • Labor Arbitration Reports (LA-BNA) • Arbitration Cases (CCH) • PERB • Staff
Lessons • How does what you know about grievance arbitration affect what you do in the grievance procedure? • Frame the issue early • Get management to agree • Figure out what their argument is • Ask for their evidence • Box them in