Doing the Footwork: Preparing for Arbitration

Doing the Footwork: Preparing for Arbitration By Ginger Staton, PHR Your agency has a grievance that is going to arbitration... now what? Even the inexperienced can do the footwork necessary to prepare a case for arbitration. Successful labor relations practitioners know they must handle grievances in a productive and efficient manner, from the initial employee complaint through the arbitration process. This is best accomplished by helping front line supervisors and managers respond to grievances early in the process. What transpires at the beginning of the grievance process heavily impacts the decision an arbitrator will make in the final stages, if and when the grievance escalates to an arbitration hearing. On the other hand, dragging your feet or procrastination will only aid your opponents in the process. So jump into preparing for arbitration using these step by step processes and you will land with both feet on the ground. This paper discusses the critical steps to prepare for arbitration: Fact Finding Research Development of a Theory Final Case Preparation Use these tools to help develop your case, always keeping in mind that relationshipbuilding is the key to successful labor relations. Fact Finding: Taking the First Step The first step in preparing for arbitration is fact finding. You should have gathered a lot of information during the grievance process. But if not, this is the time to gather, learn and determine the basis of the dispute. This process includes: Review the history of the Grievance Many grievances arise from unanswered questions, including whether discipline has been administered appropriately. Review the Grievance documents and responses as well as the grievance investigation and all related materials. Some points to consider during your review: Was there a discussion with the employee about his or her grievance? This interview shoud be investigative and not adversarial or accusatory. Did the union identify the specific contractual provision(s) allegedly violated? 1

Was an investigation held promptly after the complaint (if at all possible within 48 72 hours after the event). If so, was the employee advised of the decision shortly thereafter? Was there a review that other employees have been treated the same way in other similar circumstances. If so, makes notes of situations for later use. Were the contractual time limits for handling the grievance followed? Was the grievance filed timely and responded to in a timely manner following procedure outlined in the Collective Bargaining Agreement? Was there an on-site visit to the work area related to the grievance? If so, what was observed? Were there any witnesses during the grievance process? Who were they and what was their testimony? Have you reviewed the employee s personnel file? Review prior performance records and other relevant information for the case (i.e., timesheets, attendance reports, payroll records, etc.) Have you reviewed prior grievance records? Are there similar cases to review? What was their outcome? Review all notes taken during interviews and grievance meetings. Review the Collective Bargaining Agreement A thorough understanding of the Collective Bargaining Agreement is key. Grievances occur because of differing viewpoints of the parties and alleged violations of contract provisions/work rules, violations of the law, or perceived unfair treatment of an employee by management with regard to disciplinary actions. An employee grievance is at the core of contract administration. The grievance process, as defined by the Collective Bargaining Agreement, spells out the formal steps used when a conflict arises. When preparing for arbitration (or grievance handling) you have to keep in mind that individual contract provisions must be considered as part of the entire contract. One provision cannot be read autonomously. In short, the dispute must then be interpreted in the context of the entire contract document. Consider the following questions throughout your review of the contract: Is the contract provision clear or does it have ambiguous language? How have both parties interpreted the language in the past? Has there been consistent administration of the contract provision in the past? How does that compare to the action/situation being grieved? Are there other contract provisions that the disputed action(s) violate? If so, what are they and what are the practices related to those provisions? 2

Review policies and work rules A review of other documents pertinent to the case is necessary. The Grievance or dispute may be based on discipline or disagreement on a work rule or department policy. You should review: The work rule or department policy broken which lead to the dispute and/or discipline of the employee? If so, did the employee have knowledge of the rule and the consequence for not following it? How are the work rules or policies communicated? Are they reviewed on a regular basis? What documentation exists that shows the employee had knowledge of the work rules and/or policy? Is the rule or policy reasonable? Do all Supervisors enforce the rule uniformly with their employees? What is the prior record of the employee? Witness interviews Interview all witnesses on your side of the case to become thoroughly familiar with all the relevant facts. Decide whether to re-interview witnesses on the Union s side; if so, assure there is no retaliation. Listen attentively and carefully document all your interviews to get all details. Stick to the facts: Who, What, When, Where, Why Recap what you heard in your own words to assure clear understanding Ask if why the action was taken to ascertain the Supervisors and management reasons How does the party believe the case should be resolved? Past practice An important step of your review of the facts is the premise of past practice. Review what the real practice is in the department vs. the written procedure. Is there a consistent practice of the rule/policy being disputed? For example, if there is a discipline situation based on attendance, is there a practice different the attendance policy being followed? Are there inconsistencies between Supervisors or departments in administering the Attendance Policy? If so, why? 3

Research: One Step Forward Another important step in preparation for an arbitration case is conducting research, both on processes and on other arbitration cases. This research will aid you in moving toward your case theory development and finally prepping for the hearing. Although arbitration differs greatly from court in that what happens in one case will not necessary be the same in your case, research can help you understand the process and be familiar with Some resources you may use are: CALPELRA Labor Relations Academy II: The Arbitration Process handbook. CPER (California Public Employee Relations): Pocket Guide to Public Sector Arbitration: California. Bureau of National Affairs (BNA) for Arbitration Research, which indexes arbitration decisions classified by issues or subject How have similar cases been decided? Each case has different circumstances but reviewing similar cases may help you further develop your case. What is similar and what is different? What facts were important to the Arbitrator? How did the arbitrator support his/her findings? What standard of proof was applied? What testimony made an impact? If possible, review other cases heard by the selected arbitrator What are the similarities and differences between the cases How did the arbitrator support his/her findings? What was their standard for contract interpretation? Rationale review In the end, what led the Arbitrator to the decision rendered? Theory Development: The Hypothesis Step Once your research is complete, you must develop your case theory. Your case theory will explain the reasons the contract entitles you to reach a favorable decision, based on the facts. The theory is based on facts and the justification for the actions taken. Keep the theory clear, clean and concise. Through your fact-finding and research, you will develop your case theory. Frame the arguments 4

You will assemble the arguments that support your case. Facts to support each argument How to present the facts that support your arguments Documents needed to support position What documents or exhibits are needed to support your arguments. Are the documents authenticated? Witnesses needed to present evidence Prepare a witness list with a brief summary of what testimony each witness will offer. When considering what witnesses will be needed at the arbitration, remember that not all facts are necessarily disputed. Concentrate on bringing to the arbitration only those witnesses required to prove disputed facts. A witness must have direct knowledge of facts from personal observations. Must be articulate, sincere and confident under examination (direct and cross) Develop a Theory of Union s Case Examine the Union s case very carefully. o Is it convincing? o Does it contradict your case? o What are the weaknesses? o What questions should be asked of the Union s witnesses? o How does the opposing evidence affect the strength of your case? o What can be done to effectively refute the Union s evidence and positions? You will be better prepared for arbitration if you have thought about the strengths and weaknesses in both your own and the Union s arguments. First, list the strongest arguments that support your side of the dispute and the Union s weakest arguments. Next, list your weakest arguments and consider the Union s strongest arguments. You can use this information to see if you need to do anything more to prepare for the arbitration hearing. You should not ignore those areas of your case that are weak and will require additional proof. It is better to be prepared with answers to the Union s strongest arguments. 5

Final Case Preparation: Home Stretch You have laid the groundwork and now is the time for final preparation for arbitration hearing. The steps of final case preparation include the preparation of witnesses, exhibits, the Submission Agreement, the opening statement, the pre-hearing brief and the closing statement. Witness preparation Follow the rules of witness preparation: 1) Never to put on a witness you haven t prepared 2) Never ask your witness a question you don t already know the answer Exhibits Any documents admitted into evidence should be copied 3 4 times. One for the arbitrator, one for each counsel or party and one for personal use or if needed by a witness to refer to while testifying. Submission Agreement If possible, reduce the number of witnesses and documents by agreeing to stipulate facts in a submission agreement. Prepare opening statement Your opening statement should provide the Arbitrator with information about your contract, your workplace and the dispute that brings you to arbitration. Pre-hearing brief Preparing a brief written statement for arbitration is usually helpful. It saves time and money by giving the arbitrator an introduction to the dispute and identifies and discusses potential problems at the onset.. Oral Closing Argument After all the evidence has been presented, you will present a closing argument to summarize your position. You should identify the principal issues that are to be resolved. You will restate the facts that support your position and identify the facts that undermine the position of the Union. 6

In Conclusion You have done the footwork and the arbitration hearing is complete. Now what happens? The arbitrator will consider evidence submitted in writing, the sworn testimony of witnesses, and the arguments presented by both the Agency and the Union. The arbitrator will usually give a decision on each contested issue in writing. The written award is typically binding on the parties, just as a court decision would be. Remember that following each step of the grievance procedure in good faith facilitates the resolution of grievances. Thoroughly addressing issues early in grievance process will translate into less grievances heading for arbitration. However, if you do find yourself preparing an arbitration case, following these steps will help you organize and prepare your case. The significant problems we face cannot be solved at the same level of thinking we were at when we created them. ~ Albert Einstein Submitted by: Ginger Staton, PHR Personnel Technician Zone 7 Water Agency 100 North Canyons Parkway Livermore, CA 94551 (925) 454-5044 January 25, 2007 7