GRIEVANCE ARBITRATION

FREQUENTLY ASKED QUESTIONS

SERVICES 

Unions and employers call on my services as a LABOR ARBITRATOR to rule on grievances arising from their collective bargaining agreements. Among others, I have ruled on grievances touching:



  • Arbitrability
  • Assignments in "high heat"
  • Bargaining unit work
  • Commissions payable
  • Disability
  • Discharge - absenteeism
  • Discharge - computer use rules
  • Discharge - alcohol and/or CDS
  • Discharge - performance
  • Discharge - safety
  • Discharge - theft and/or fraud
  • Health Insurance - new carrier
  • Health Insurance - coverage

  • Holiday schedule
  • Holiday pay
  • Last chance agreement
  • Leave of absence - Union Reps.
  • Leave of absence - Illness/injury
  • Out-of-title work
  • Pension benefits - entitlement
  • Promotion
  • Respirator certification
  • Wages - premium pay
  • Wages - appropriate rate
  • Working conditions

PHILOSOPHY

I am guided by the principle that the “arbitrator does not sit to dispense his own brand of industrial justice…[his award is legitimate] only so long as it draws its essence from the collective bargaining agreement.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597 (1960).
 

RELEVENT CAREER EXPERIENCE

A. As a Neutral Administrator

Tribunal Clerk, New York Office, American Arbitration Association (1967--68): Prepared lists of proposed commercial arbitrators, assisted with scheduling hearings, prepared confirming correspondence, and attended hearings as a clerk assisting arbitrators with ministerial tasks

Tribunal Supervisor, New York Office, American Arbitration Association (1968): Supervised the administration of arbitrations for the General Arbitration Council of the Textile Industry

Assistant Regional Director, Chicago Office, American Arbitration Association (1968--1971): Responsible for two operating departments serving six Midwestern states. Duties included planning and implementation training programs pertaining to grievance resolution

New Jersey Regional Manager/Director, American Arbitration Association (1971--78): Managed AAA’s New Jersey Regional Office.

B. As an Arbitrator/Mediator (1978-1982)

Commercial Arbitration: Heard a range of commercial claims including disputes involving: purchase agreements; franchises; financing; homeowners’ warranties; real estate; employment contracts; equipment leasing; and stock brokerage.

Labor Arbitration & Mediation: Arbitrated contract interpretation, discipline, and discharge grievances in the private sector including pharmaceutical, health care, chemical, transportation, and machine tool industries. Arbitrated public sector grievances filed by labor organizations against Boards of Education. Served as a mediator of impasse disputes for the New Jersey Public Employment Relations Commission.

C. As an Advocate

Epstein, Becker & Green, Associate (1983--1988): Assigned to the firm’s New Jersey and New York City Offices representing corporations with respect to fair employment practices, employment torts, wage & hour issues, and NLRB charges.

PSE&G, Associate Labor/Employment Attorney (1988-2005): Represented utility in employment and labor relations litigation including presenting contract interpretation, discharge, and discipline cases to labor arbitrators.
 

PANELS AND ROSTERS

3020-a Upper New York State Panel

American Arbitration Association—Labor Panel (NY, NJ, & Philadelphia)

AFGE/SSA – New York City, Northern, NJ & Central, NJ Panel

Federal Mediation and Conciliation Service

FINRA Arbitration Panel—Philadelphia & New York City panels

IBT, Local 125/Coca-Cola – Expedited Discharge Panel

New Jersey State Board of Mediation

New Jersey Public Employment Relations Commission - Arbitration Panel

New Jersey Appointee, NY/NJ Port Authority Employee Relations Panel

Pennsylvania Bureau of Meditation

U. S. Postal Service REDRESS Mediation Panel

FEES

When notified by an appointing agency--with a published fee structure--of my selection to arbitrate a grievance under its procedures, I comply with that agency’s published schedule governing fees/expenses. When an agency schedule is not applicable, my labor arbitrator service charges are:

$1,600.00 Per Day--Rate for each full, or partial day of hearing.

$200 Per Hour--Rate for preparation, research, study, and writing Award & Opinion

Cancellation charges: $1,600 if less than 14 calendar days' advance notice

Expense reimbursement for mileage, tolls, parking, train & airfare. Travel to hearings in Florida billed from The Villages, Sumter County. Hourly rate may be charged for travel time in excess of 6-hours round trip.
 

SPECIMEN ARBITRATION DECISIONS

A labor arbitrator’s analytical and writing skills are critical. Please check out a few of my recent opinions. They have been redacted to preserve the privacy of the parties and participants.

Just click on the links.

DISCHARGE GRIEVANCE  - Redacted Arbitration Opinion

CONTRACT INTERPRETATION GRIEVANCE  - Redacted Arbitration Opinion

IS THE GRIEVANCE ARBITRATABLE?
 - Redacted Arbitration Opinion

OFFICIAL TIME (Federal Sector) - Redacted Arbitration Opinion​ 

ARBITRATION ARTICLES

“The Acceptability of Inexperienced Arbitrators: An Experiment,” with Allen K. Miller, Labor Law Journal (December 1971)

“Obscure Lines: The New Jersey Courts’ Response to Public Sector Bargaining,” The Arbitration Journal (June 1980)

“Are Grievance Settlements Arbitrable?” ACResolution (Spring 2008)

“Arbitrating Social Media Grievances,” Patrick Westerkamp & Rebecca Esmi, New Jersey Lawyer Magazine (Apr. 2011/ No. 269)

“Dilemmas Facing Advocates and Arbitrators Who Mediate Grievances,” Rutgers Conflict Resolution Law Journal, Vol. 9 - Issue 1 (Fall 2011)

USEFUL LINKS

www.adr.org/ : American Arbitration Association. AAA appoints well-qualified neutrals to labor grievance submissions cases

https://www.fmcs.gov/ : Federal Mediation and Conciliation Service. This United States Government agency handles mediation and arbitration of labor disputes and contract negotiations.

www.leranj.ning.com : The New Jersey Chapter of the Labor and EEmployment Relations Association, an organization comprised of seasoned labor representatives, management officials, attorneys, and neutrals. The Chapter holds monthly meetings on topic of interest to the labor/management community.

www.nlrb.gov : National Labor Relations Board. Independent federal agency vested with the power to safeguard employees' rights to organize.

www.state.nj.us/mediation : The NJSBM was established by statue in 1941 as an independent agency. Its primary mission is the prevention or prompt settlement of labor disputes involving private sector employers, employees, and their unions.

www.smlr.rutgers.edu : Rutgers' School of Management and Labor Relations (SMLR) is a “leading source of expertise on the world of work, building effective and sustainable organizations, and the changing employment relationship.”
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FREQUENTLY ASKED QUESTIONS

Q: What is a “grievance?”

A: A grievance is a dispute or difference about the interpretation of one or more clauses in a collective bargaining agreement (“CBA”). 

Q. What is a CBA

A. Collective agreements are contracts. As with any form of contract, the legal status of CBAs varies from jurisdiction to jurisdiction.

Q. How are grievances arising under these contracts classified?

A. The two principal grievance categories are those arising from disputes over the application of “contract language,” and those resulting from an employee’s discipline, or discharge.

Q. What is “grievance arbitration?”

A. In grievance arbitration an impartial person chosen by labor and management becomes the judge of their conflict. While the private sector is often viewed as the template for grievance arbitration, public sector disputes (whether at the federal, state, county, or municipal level) are often more complex. Labor arbitrators who have gained success in this arena possess specialized knowledge beyond that needed for the private sector.

Q. Do arbitrators hold in-person hearings?

A. Yes, most usually.

Q. What are the primary characteristics of a qualified labor arbitrator

A. Grievance arbitrators:

Are Impartial
Understand labor relations in the private & public sectors

Effectively manage hearings
Know arbitration procedure
Are adept at applying the rules of evidence
Apply contract interpretation rules in language disputes
Apply “just cause” rules in discipline & discharge cases
Apply the principals governing remedies
Have superior writing skills

Q. How important is my role in choosing an arbitrator?

A. Arbitrator selection is critical to prevailing. While not every case is a “winner” you want to select neutrals based on maximum knowledge of their experience and characteristics. This means going beyond biographical sheets sent by appointing agencies (e.g. AAA, FMCS, PERC, State Board of Mediation). Good steps include inquiring of colleagues, reading published awards, and noting the professional associations in which arbitrators are active. The most effective measure of an arbitrator is your personal evaluation from face-to-face meetings such as at training conferences.

Q. How does a party prevail in a contract interpretation grievance?

A. In grievances construing CBA clauses the Union has the burden of proof. It must demonstrate by a preponderance of the evidence (50% + a smidgen) that,
a. The labor contract governs a specific term, or condition of employment
b. The Employer dishonored its contractual promise, and
c. As a result, one or more members lost something such as overtime pay
d. An appropriate remedy


Q. How does a party prevail in a discipline, or discharge grievance?


A. Employers have the burden of proof in these cases. Management must demonstrate “Just Cause” for its penalty either by clear & convincing evidence (noticeably more likely than not), or by a preponderance. Prevailing requires proof that,
a. A rule existed
b. The rule was communicated to employees
c. Supervision conducted a full investigation
d. The investigation was fair
e. The investigation reasonably supported a finding that the Rule was violated
f. The penalty fit the offense
g. Other workers were treated similarly for parallel offenses

Q. What is a “grievance ladder?”

A. Most companies and unions negotiate a grievance mechanism, which includes several steps before a difference is sent to arbitration. This procedure is known by several names including the grievance ladder.

Q. What steps are typically found in a grievance procedure?

A. Typical steps include

 a. Step 1 - Supervisor & Shop Steward
 b. Step 2 - 2nd Level Manager & Shop Steward
 c. Step 3 (Immediately before arbitration)

    - Labor Relations Mgr. & Chief Steward
 d. Step 4 – Arbitration; This final step may be invoked because
       i. The parties need a neutral to take the blame for
       an obvious, but unpalatable resolution; or
       ii. Case requires a “judicial” answer, such as a dispute over

       subcontracting bargaining unit work that could lead to layoffs

Q. What factors effect winning, or losing in arbitration?

A. Grievance arbitrations are won, or lost depending on an array of factors. Critical determinants are: The underlying grievance’s strength; Who is selected as arbitrator; How the grievance is framed. (E.g., is the issue stated as “Did the employer fail to promote “X” in violation of the seniority clause?” or “Was a more qualified junior promoted over “X”?; Amount of preparation time; Strength of documentary evidence; Availability of witnesses; Each witness’s credibility; and Experience and competence of arbitration representatives. 

Q. How can I increase my chances of prevailing in arbitration?

A. Most Union and management representatives are familiar with Lewis M. Gill’s presentation on “10 Ways to Alienate Your Labor Arbitrator.” The paths to arbitral alienation include: Arriving late for the hearing; Ill-founded objections; Covering the same ground several times; and Having exhibits in as a inconvenient a form as possible, and not preparing summaries of bulky records. These glaring errors are often less harmful than less dramatic mistakes and miscalculations that can silently undermine a party’s chances of prevailing. Among other measures it is productive to:

     a. Educate the arbitrator about the workplace
     b. Educate the arbitrator about relevant statutes, and regulations
     c. Treat everyone in the hearing room with respect
     d. Decide beforehand how you want the issue framed
     e. Prepare an accurate, and emotionally appealing opening statement
     f. Accept adverse procedural rulings with grace
     g. Accept adverse evidentiary rulings with grace
     h. Remember there often are several ways to prove a relevant fact
     i. Address remedial issues
     j. File a post-hearing brief in cases that are complex, and/or involve important issues

Q. What does “remedy” mean in labor arbitration?

A. It refers to the scope and nature of the arbitrator’s authority to address loses flowing from the Employer’s breach of a CBA. In the absence of contractual limitations, or restrictions placed in the issue as framed by the parties, arbitrators have notoriously broad remedial powers.

Q. How do grievance arbitrators apply this power in contract interpretation cases?

A. The majority view toward exercise of this power is that “collective bargaining agreements are special types of contracts with respect to which the principles of ordinary contract law, though not strictly applicable, are nonetheless helpful to arbitrators because they tap the wisdom of the past.” Remedies in Arbitration, Hill and Sinicropi, (BNA 1981). Arbitrators, in creating remedies, keep a keen eye on how the relief granted will impact the collective bargaining relationship.


Q. How do grievance arbitrators apply this power in discipline and discharge cases?

 A. Distinct factors govern discipline and discharge remedies. Arbitrators may consider: fitness to return to duty; the scope of make-whole relief, should it include back pay, benefits, seniority, other contractual loses); and whether the grievant mitigated damages. Often arbitrators given the parties an opportunity to resolve these questions, but retain jurisdiction for a few weeks to hear and determine them should the parties be unable to agree.


Q. Where can I learn more?

A. Checkout the links and articles found on this website. If you have specific questions you can contact me. 

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