I will be a faculty member at the Labor Arbitration Institute trainings in San Francisco on September 5 and 6, and in Seattle on October 5. These lively and informative trainings offer CLE and CEU units and plenty of time to meet arbitrators and ask questions. Many folks find the Institute to be great for newer and more experienced practitioners. If you come, please introduce yourself to me as a website visitor! I will be speaking on Sexual Harassment and Past Practice, and opining on many hypotheticals. Please join me!
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.
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 firstname.lastname@example.org.
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.
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.
In my prior posts, I talked about why we have labor arbitration, what procedural arbitrability is, and how arbitrators handle timeliness issues. I’ll discuss that again in a moment, but first I want to mention that there are other kinds of procedural arbitrability issues, that I’ll discuss now. Two particular procedural issues that arise are (1) the form of the grievance and (2) the manner of delivery. Both can also be dictated by the contract. The form of the grievance could be a pre-printed form, or it could be a letter to management, or it could be a simple email. It could even be a phone call. The parties usually agree on what form the grievance will take, but they may not. If they don’t agree, then it may be a procedural arbitrability issue. For example, if the union sends an email and the employer says they had to file a preprinted form, the arbitrator will decide if there was a proper grievance.
The manner of delivery is also usually agreed upon, or even stated in the agreement. Maybe it must be sent by fax, or email, or certified mail. If the contract isn’t specific, then the practice of the parties will govern. The types of questions that occasionally arise – Must it be faxed to a specific office? Must a specific form be sent certified mail? Or is an email saying, “We’re moving John’s grievance to step 3,” sufficient? – seem nit-picky, but for unions and companies with established practices and large workforces, it can be hard to keep track of everything unless the correct procedures are followed. At least, that’s what one party will argue.
As a practical matter, it makes sense to file or move a grievance to the next step at the earliest possible time. A grievance can always be withdrawn, but a union who fails to follow the administrative steps of the grievance procedure could be left holding more liability than necessary. At the same time, Employers should be aware that playing gotcha with the grievance procedure will sour labor relations and put the union in an unnecessarily difficult spot. This is particularly true when the union cannot get in touch with a grievant because of the grievant’s incapacity, such as insanity (one case in the materials), hospitalization or incarceration.
Some contracts have specific consequences for failing to respond in a timely fashion. For most of this, we’ve assumed that the union didn’t timely move the grievance, but an employer who fails to respond to a grievance may be waiving arguments, become subject to automatic next steps, or even lose the grievance.
One party can waive arguments by failing to raise procedural defects until the arbitration hearing, but there isn’t a hard and fast rule on this. Different arbitrators have ruled differently on this question but as a practical matter, it’s better to raise procedural arguments throughout the grievance procedure.