Post on 13-May-2015
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General Overview of Arbitration
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What is Arbitration?
Means to resolve disputes outside of court
Labor and Management present evidence
Arbitrator makes final and binding ruling
Arbitration is different from mediation
Arbitration Uses
Commercial Arbitration: long used as substitute for court actions
International Arbitration: used as settlement of differences between nations
Labor Arbitration: began during late 19th century
Labor Arbitration advance rapidly after U.S. became involved in World War II
Simple Mechanics of Arbitration
Arbitration authorized by Collective Bargaining Agreement (CBA)
Parties select arbitrator
Arbitrator and parties set hearing date
Hearing Held
Decision
Final and Binding Award
Enforcement
Aristotle’s Quote About Arbitration
“For an arbitrator goes by equity of a case, a judge by the law, and arbitration was invented with the express purpose of securing full power for equity”
Image of Aristotle
Chief Justice Warren E. Burger
Quote:
“I cannot emphasize too strongly to those in business and in industry…that every private contract of real consequence to the parties ought to be treated as ‘candidate’ for binding arbitration”
Chief Justice Warren E. Burger
Served on Supreme Court 1969 to 1986
Voluntary Arbitration Use
Voluntary form of arbitration terms Private Commercial Contractual
Example Industries using voluntary arbitration Maritime Securities Labor Medical Construction
George Washington’s Will
“ I hope, and trust, that no disputes will arise concerning them;…..my will and direction expressly is, that all disputes shall be decided by three impartial and intelligent men, known for their probity and good understanding…and such decision is, to all intents and purposes to be binding on the parties as if it had been given in the Supreme Court of the United States.”
Courts and Arbitration
Courts originally did not favor arbitration
Most state and federal courts now support arbitration
Routinely enforce arbitration awards
Federal Arbitration Act and State Acts enhanced support
Courts accept arbitration as alternative to litigation
Procedures
Arbitration not required to follow court procedures
Court may compel a refusing party to arbitrate
Arbitration usually coordinated by an agency
Agency coordinates various procedural activities
Process
•Process design determined by parties
•Use of Administrative Agency Rules
•Pre-hearing conference agenda
Arbitration Setting
Same look and feel of court trial
Opening statements
Introduction of evidence
Witness testimony
Arbitrator more active role
Hearings are usually private
Timeliness
Parties may make arbitration relatively quick and inexpensive compared to litigation
However, bulk of arbitration cases requires several weeks or months
Arbitration issues are becoming increasingly complex
Time requirements increase with complexity
Parties and/or selected arbitrator may not be readily available
Nonetheless Arbitration is speedier than litigation
Arbitration Costs
•Arbitrator fees can add up
•Multiple Days of hearing are expensive
•Arbitrator’s expenses for travel, meals and lodging
Grievance Mediation
Hybrid variation between mediation and arbitration
Advanced in recent years because perception that arbitration is excessively delayed, expensive, or formalistic
Occurs after final step – prior to arbitration
Mediator may not act as arbitrator
Mediation discussion may not be used in arbitration
Common practice in the public sector
Advantages Arbitration Over Litigation
Court costly, prolonged and technical procedures of courts not well adapted to labor-mgt. relations
Courts are not often versed in labor relation problems
Supreme Court stated in the Steelworkers case:
“The labor arbitrator performs functions which are not normal to the courts; the considerations which help him fashion judgments may indeed be foreign to the competence of the courts”.
Other Arbitration Considerations
Prompt compliance with the award obtained in most cases
Court actions seeking compliance or vacation of award is infrequent
Discovery rights, attorney fees, punitive damages and supervised equity relief are typically unavailable
Lack precedential value in development of the law of collective bargaining
Faulty final and binding decisions may not be subject to review as are trial judge decisions
Labor Arbitration Observation
Arbitration….is a school, an arena, a theatre. Everyone both participates and observes. The whole company of actors-arbitrator, union and employer officials, the…[grievant], and the witnesses (mostly employees)—sits at one table. Argument, assertion, testimony, charge and countercharge, even angry abuse-sometimes spontaneous, sometimes “for the record” –flow freely in quick continuous intercourse. The arbitrator may let the discussion takes its head for a moment, then rein it in; an occasional question, a request for clarification……
Labor Arbitration and the Individual Worker
Jaffe, Annals of The American Academy of Political and Social Science 34, 40-41 (May 1953)
Arbitration - Substitute
To consider… arbitration as a substitute for court litigation or as the consideration for a n0-strike pledge is to take a foreshortened view of it. In a sense it is a substitute for both—but in the sense in which a transport airplane is a substitute for a stagecoach. The arbitration is an integral part of the system of self-government. And the system is designed to aid management in its quest for efficiency, to assist union leadership in its participation in the enterprise, and to secure justice for the employees.
Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv. L. Rev.999, 1024 (1955)
Conclusion
Next Lesson: Examine the Rules of the Road as a Union Advocate
Read Chapter 1 of the Union Steward’s Guide Textbook
Be sure to take this lesson’s practice quiz, read the case study, complete the assignments, and participate in the forum.