Just a reminder that I will be speaking at the Labor Arbitration Institute on June 18 and 19. You can still register at www.laborarb.com. Please join me!
Labor Arbitration Blog
Becoming a Labor Arbitrator – What It’s Really Like
To become a labor arbitrator, a person needs many years of experience in labor relations and collective bargaining. Many arbitrators retire from a career in law or human resources or union representation and launch their careers as a neutral. In recent decades, this is the most common path; a retirement income is necessary during those early years when labor and management are reluctant to select someone they perceive as new or untested. Even people with a long career in labor relations as an advocate struggle to get recognized as a neutral. In fact, for practitioners entering the profession, it can be an unpleasant surprise that the respect one earned in their field doesn’t translate to business very easily.
Even with a primary income (either from retirement or household sources), a new arbitrator can find themselves with a lot of time on their hands. When I started out, more experienced arbitrators recommended that I line up a hobby and some volunteer work that could structure my time until my practice took off. At first, I ran a lot and worked out, drove my kids to seemingly infinite practices and games, and started writing memoir and fiction for pleasure. I also volunteered for our local Little League board and the Oakland Police Commission. It’s safe to say my plate is now overflowing.
I was reminded of this admonition today when I read an obituary for an arbitrator from Oregon who passed recently. The obituary noted that she would be missed by the labor relations and accordion communities. I found this comment to be both funny and sweet. Clearly this esteemed woman had committed herself to playing the accordion to enrich her life, developing friendships and connections along the way. Most arbitrators have some aspect of their life that is little known to the parties that appear before them. I know of other fiction writers, stamp collectors, private pilots, movie buffs, photographers, swimmers, golfers and jazz musicians. I wonder if there are other accordion-playing arbitrators?
Can’t Make It To Vegas?
I know Vegas in June is on everyone’s bucket list, but if you can’t join me at the Las Vegas Labor Arbitration Institute on June 18 and 19, then consider coming to the San Francisco Labor Arbitration Institute on September 5 and 6. Registration isn’t open yet, but you can get added to the notification list (or sign up for a different conference) HERE.
Meet Me in Las Vegas, 2018
I am heading back to Las Vegas to join the faculty of the Labor Arbitration Institute for their annual Labor Law and Labor Arbitration training on June 18-19, 2018. I will be on several multi-arbitrator panels and will present on the thorny topics of Insubordination and Job Performance. This training is praised by participants and faculty alike. You can find out more at www.laborarb.com. I hope to see you there!
Social Media and the Workplace, part 1
Last year, I was asked to present on the “new electronic frontiers” in the workplace, and related issues in arbitration. In preparing my presentation, I came across these incredible statistics from the Pew Research Center:
As of November 2016,
- 88% of American adults have internet access
- 69% of American adults use social media
- 86% of 18-29 year olds use social media
- 80% of 30-49 year olds use social media
- 64% of 50-64 year olds use social media
- 68% of American adults use Facebook
- 88% of 18-29 year olds use Facebook
- 65% of adults who make less than $30000/year use Facebook
- 76% of Facebook users use it daily
- Facebook at 191 active monthly users in the United States, and 1.86 billion active monthly users worldwide
These numbers are stunning for a few reasons. First of all, it’s clear that internet and social media usage are as or more pervasive among workers than possibly any other media usage or activity. Other than essentials like eating and sleeping, is there anything this many Americans do in common? Second, this kind of access undermines arguments that workers cannot and do not use technology in a variety ways. It’s clear that the internet isn’t going away, and workers are relying on it more than ever for everything from socializing to banking to managing their own work.
As a result, employers and unions are grappling with the issues that are raised by access to social media and the internet, both in and out of the workplace. Other the next several posts, I want to talk about the variety of these cases and how arbitrators approach them.
The most common issue that arbitrators see in this area are disciplinary matters that hinge on misuse of equipment, the internet, social media and on-duty vs. off-duty conduct. In general, arbitrators apply a variation of the Just Cause Standard to these cases, asking:
- Is there a clear policy on internet, social media, computer or email usage?
- Is the rule articulated reasonable?
- How was the information obtained, and is the employee responsible for it?
- Is there disparate treatment and an appropriate penalty?
Just cause standard in computer misuse cases was described by Arbitrator Jeffrey W. Jacobs, NAA Member, “Computer & Internet Misuse – So, You Mean Once It’s Posted, It’s Really There Forever and I Could Get Fired For It?”, published by The Labor Arbitration Institute.
I’ll talk about each of these in upcoming posts.
What Is Substantive Arbitrability?
In my previous posts, I’ve talked about procedural arbitrability, which is a question about whether an arbitrator can hear a contractual dispute because one party has failed to follow the grievance procedure. In this post, I’ll discuss substantive arbitrability. Substantive arbitrability differs from procedural in that it depends on the question of whether the arbitrator has the authority to decide on the underlying substantive issue. For example, a contract may state that an arbitrator may not hear cases of a certain type. Substantive arbitrability issues can be raised to the arbitrator, but they are also raised after an arbitration decision in court when one party (or both) feels that the arbitrator exceeded their powers under the collective bargaining agreement.
Now let’s talk about substantive arbitrability. These are cases which one party believes the arbitrator doesn’t have jurisdiction over the subject matter. One example of this is Last Chance Agreements (LCA), which is a broader topic, but in general LCAs limit the arbitrator’s jurisdiction to deciding whether the employee violated the terms of the LCA or not. If the employee did, the consequence is spelled out in the LCA and the arbitrator cannot alter the outcome.
Managers frequently assert ‘management rights’ as the basis for why an arbitrator cannot hear a dispute. The actual language of the agreement will be very important here, and will involve a lot of argument. As a practice tip, both sides will need to identify what specific language in the agreement give the arbitrator jurisdiction or not.
Another substantive arbitrability issue arises when a party adds a claim or theory to the original grievance when they get to hearing. Just as an employee has a right to know what they are being fired for, an employer has a right to know what the union believes the contract violation is.
Often there is language in the agreement that limits the arbitrator’s jurisdiction, such as “cannot add to, subtract from or modify the agreement.” If one party believes that the remedy sought by the other side would do that, such as asking an arbitrator to create a new attendance policy, then they should argue this language prevents such a remedy, and ask that if a violation be found, the parties be ordered to fashion their own remedy, for example. In addition, parties sometimes ask arbitrators to act as EEOC administrators, or workers comp judges, or want a legal ruling on a statute. At the end of the day, the arbitrator is there to hear contract disputes, and usually wants to hear only those.
Finally, when should the parties argue the arbitrability issues? As soon as possible, not only in the grievance procedure but in the hearing. Some parties request bifurcation – that is, they want the arbitrator to hear the arbitrability issue before they hear the merits of the case. Unless the parties agree to bifurcate, the arbitrator retains the jurisdiction to rule on bifurcation. Often to an arbitrator, it makes more sense to hear the whole case at once, since the arbitrability issues are often interwoven, but it depends on the facts of the case.
I hope you have found this series useful. Please let me know if you have any questions that I can answer in future posts. You can email me at andrealdooley@gmail.com.