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My Social Media Policy

August 17, 2018 By Andrea

The other day, a party representative commented on this website, saying that she appreciated the availability calendar because it had simplified the process of scheduling our hearing. Other arbitrators, I’ve learned, don’t maintain their own website, and quite a few are leery of having an internet presence at all. In a gathering of arbitrators and would-be arbitrators, I found that very few people had even done an internet search of their name to learn that the parties might find out about them while doing internet research.

I’ve written before about the ethics of social media for neutrals, and you can read that article here, if you like. I also thought it would be helpful to let parties know my personal policy on social media, where I do maintain accounts on the most common social media sites. Here’s my personal policy for each of my social media accounts:

Facebook: I accept requests from or maintain Facebook connections to people I personally socialize with or have been employed with or volunteered with in the past. I don’t accept friend requests from unions, employers or their representatives, staff or members. I maintain a separate Facebook page for my arbitration practice that is publicly available to view.

LinkedIn: I accept all requests from people in the United States and Canada who are likely to have some nexus to my profession, such as HR and union professionals who I have not worked with but who may be looking for my current resume. I don’t have personal connections to very many of the people I am connected to on LinkedIn, and my connection to someone should not be taken as evidence of any personal connection or even knowledge of that person.

Instagram and Twitter: I follow very few people outside of my immediate family and friend groups (Instagram) or journalists, comedians and politicians (Twitter), but haven’t had an occasion to block any followers. Don’t bother following me there; it’s mostly pictures of my dog and my garden, or posts about my non-work writing and reposts of news articles I found interesting. Retweets are not endorsements.

I recognize that this is somewhat unorthodox and welcome feedback about it. Please submit any questions and comments you have. Thanks!

Becoming a Labor Arbitrator – What It’s Really Like

May 10, 2018 By Andrea

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?

Social Media and the Workplace, part 1

March 14, 2018 By Andrea

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?

March 12, 2018 By Andrea

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.

Final Words on Procedural Arbitrability: Continuing Violations

March 7, 2018 By Andrea

Continuing violations grievances are another exception to the idea that untimely grievances will not be arbitrated. In a continuing violation grievance, the union alleges that the violation of the collective bargaining agreement recurs, maybe on a daily or weekly basis. Every day is a new violation and therefore a grievance is not untimely even it’s filed outside the time limits of the first violation. The remedy may be restricted to the time frame of the grievance. For example, a group of workers believed that they should have been paid on-call pay rather than standby pay when one of them reads the contract and decides that having to wait at the workplace, as they have done for years, sounds more than like on-call than standby as those terms are defined by the contract. The employer says, “Nope, your grievance is untimely, there’s a past practice, etc., etc.” The arbitrator will probably disagree with that employer, and find that the allegation is timely, but will likely limit the recovery to thirty days (or some other contractual limit) prior to filing the grievance, if she finds that a violation has occurred.

If you’ve liked this series, please bookmark my blog and visit again soon. If you would to read the whole series on Procedural Arbitrability, it starts HERE. In my next few posts, I’ll be discussing Substantive Arbitrability.

I Digress: “Equitable Estoppel” and Procedural Arbitrability

March 5, 2018 By Andrea

An issue that sometimes arises in arbitration is a concept called “equitable estoppel.” I’ll try to keep this short, so you don’t zone out or fall asleep. The quickest way to explain equitable estoppel is, one party cannot lead the other party to believe that they agree or will resolve the issue, and then change course and claim the other side was untimely when they object to the failure to resolve the issue. For example, there’s a case where the employer agreed to pay contractual severance pay for the employees it was laying off and confirmed in writing several times that they would do this. They did not do this. The union tried to contact the employer about it and didn’t hear back until the employer’s bankruptcy attorney told the union that the employer would not pay. The union filed a grievance and the employer claimed the grievance was outside the 3-day window for filing after the employees received their final paychecks. The arbitrator rejected that timeliness argument, saying the union didn’t affirmatively know they wouldn’t get it until the bankruptcy lawyer told them so. It was reasonable to believe, based on the employer’s earlier statements, they’d get the money.

The moral of the story is, arbitrators don’t like it when the parties try to play tricks, and are unlikely to find the grievance is not arbitrable if the side arguing for lack of arbitrability was playing games during the grievance procedure.

If you’re interested, I’ve written about procedural arbitrability HERE and HERE and HERE, but definitely read them in order!