Labor Arbitration Blog
Pre-Order Now! Delivers on July 15!
I am very excited to announce the release of my new book, The Beginner’s Guide to Labor Arbitration Practice, which will be released in electronic format on July 15. You can pre-order HERE.
The National Academy of Arbitrators notified me this weekend that their Board of Governors has accepted my application to the National Academy of Arbitrators. Due to recent travel restrictions, the NAA Conference in Denver was canceled but the board met remotely to consider several items, including my application and those of other candidates. I am honored to be included in the National Academy of Arbitrators.
Now that the National Academy of Arbitrators has created Procedures for conducting hearings via videoconference, I encourage parties consider holding hearings by video conference. Zoom and other platforms allow for breakout rooms (to caucus), privacy, and efficient resolution of your grievances.
I know that this is a novel approach but videoconference hearings are less expensive and more expeditious than in-person hearings. They reduce the hassle to witnesses, who can appear for just their testimony as opposed to waiting at the hearing location. Most court reporting services offer hosting services as well and reporters are trained to participate in video conferences. Please let me know if you are interested in trying this approach. I think these extraordinary times call for novel measures, and I think that videoconference hearings could be a valuable tool for alternative dispute resolution even after the pandemic is resolved.
Ten Tips for A Career Change
Union folks and management folks don’t often have much in common, but one thing many of them share is a belief that they would make a good arbitrator. Quite a few advocates confide in me that they are looking at it as a post-retirement option. I tell everyone, regardless of whether I agree with their assessment, to give me a call when they retire and I’m happy to share everything I know about making the transition to a neutral role in labor relations.
Being a labor arbitrator is a very rewarding career, but the transition from a full-time job working for a law firm, a union or an employer is a rocky one. I hope some of these tips, most of which I received from colleagues when I was starting out, help you assess whether becoming a labor arbitrator might be in your future.
Start planning before you leave your job
Labor arbitrators, unlike commercial arbitrators, typically cannot be working in an advocacy role when they hear cases. That doesn’t mean you can’t start preparing until after you leave a union or management job. The Federal Mediation and Conciliation Service offers a weeklong training called Becoming An Arbitrator that is very thorough and does a great job teaching the basics of launching a new career. In addition, if you complete the course, you receive credit toward their eligibility requirements to join their panel.
Have another source of income
I had my 5th anniversary this past April and this is the first year that I will make more money than I did in my last regular full-time job. I’m very fortunate to have a spouse whose income is sufficient to cover our monthly costs. For most people, economic uncertainty is the reason they delay launching an arbitration practice. This is unfortunate because it prevents otherwise qualified folks from becoming arbitrators. That said, you don’t have to have a high income to launch a practice. There is often work available from other arbitrators which can generate income while you are waiting for your own cases. Several arbitrators hire ghostwriters, and several panels give mediation or low fee cases to new arbitrators.
Track down starter work
My earliest cases were card check/recognition cases, writing and research work, and PERB appointment fact-finding cases. At the time, PERB paid only $100 a day to its appointed fact-finders, and I took a case with two parties whose representatives frequently used factfinding. Although that case was not remunerative, they picked me for another two dozen cases over the next 18 months (at my regular per diem rate), and really helped launch my practice. PERB now pays closer to the market rate (currently, $1200 a day).
Get some hobbies
It’s crucial that you have other things to occupy your time while you are waiting for the work to roll in. One of my colleagues took up the piano, another focused on stamp collecting. I decided to focus on exercise and writing (memoir and fiction). I kept a regular schedule that balanced my interests with my business development and stayed as busy as possible. Loneliness and depression are real side effects of starting a new career that has such a long on-ramp, and planning ahead of time to keep them at bay is critical to your mental health.
Call yourself an arbitrator
Regardless of whether you have any business on the horizon, start telling people you are an arbitrator as soon as you hang your shingle. DO NOT say, “I’m trying to be an arbitrator.” DO SAY, “I am an arbitrator.” Say it a lot, to yourself and to others. Also, have answers to the following questions. I’ve shared my answers as well, but you may want to say something different.
Are you busy? (Answer: “Not as busy as I’d like, but I’m doing a lot of business development and stuff is starting to come my way.” OR “Busy enough but I’ve got a little room for more. Are you looking for an arbitrator?”)
Are you pro-union or pro-management? (Answer: “I’m pro-collective bargaining. I think it’s the best approach to labor relations.”)
What’s the best part about it? (Answer: “Making my own schedule. Getting to hear new stories all the time. Getting to help people resolve their differences. Being the decision-maker.”)
Make business development your job
As an arbitrator, a lot of your time will be spent doing administrative work and business development, especially in the first couple of years. I set a target to work every day at my arbitration business, and I gave myself credit toward that goal for everything I did. Get a DUNS number, check my mail, put up a website, update LinkedIn, go to a bar association event, write a thank you note. Everything counts. Applying to panels, writing letters to prospective parties, researching collective bargaining agreements (to find out how they pick arbitrators, when their panel might open and how many of the arbitrators on their panel are still practicing) and helping to organize conferences and seminars are all a great way to keep moving forward.
Decide how much you want to charge
Obviously, you can’t coordinate your per diem rate with other arbitrators. Each year, however, FMCS publishes a survey that shows the range by state so you can see how many people in your area charge at the top rate, low rate and what the median is. The advice I got from many people was to not underprice myself. In reality, parties do not avoid arbitrators because of their rates. They look at overall billing practices, ability to run a hearing, and prompt, well-considered decisions. Someone cheap who charges for 100 days of writing probably won’t be selected again.
Have a long-term plan
After a really successful second year (because of all those factfinding cases), my third year was much quieter and stayed pretty slow (with some exceptions) in my fourth year. That’s when I started to panic. To be clear, I had cases. It just seemed like I should be getting more. It was an arbitrary feeling. I decided that if business hadn’t picked up by my 5th anniversary, I would reconsider this profession. I don’t want to say that my business instantly picked up, but it has increased incrementally every month, and now, after 5 years and 3 months, I have just slightly more work than I want. My cases are scheduling as far out as 7 months and I don’t anticipate another major decline because I am on quite a few panels. In retrospect, I wish I had made a long-term plan earlier, so I wouldn’t be worried about the ebb and flow (or “feast and famine”) of solo practice.
Research, research, research
This goes back to the business development point I made earlier. Keep looking for new opportunities. Some people get on the FINRA panel, which pays poorly but is probably a great experience. Apply to the public employee boards of your state and other states to which you can easily travel, civil service commissions, court ADR programs, and introduce yourself to many union and management representatives. Attend National Academy of Arbitrators conferences, state and local bar association meetings and conferences, professional groups like LERA and related non-profit fundraisers. Write short articles for blogs (like this one!), newsletters and bar association publications.
Be prepared for success
As a part of your long-term plan, think about what kind of workload you really want, how far you want to travel and whether you are pricing yourself correctly in the market. When will you raise your rates? Should you get an office or an assistant? Do you want to try to publish? Speak? When do you eventually want to retire, and are you saving for it? If you succeed beyond your wildest dreams, what will that look like, and how can you get there?
Even though we’ve seen a decline in union membership and a rise in commercial arbitration, there is still a need for labor arbitrators who are familiar with collective bargaining and industrial relations. Meanwhile, there hasn’t been a huge influx of new labor arbitrators to replace the arbitrators who are retiring or have died in recent years. While Northern California has historically had a good number of exceptional female and African-American arbitrators, overall my colleagues are older white men who are still acquainting themselves with changing norms around implicit bias. We need a wider selection of arbitrators from different backgrounds. All that is to say, I encourage people to become my competition!
If you are interested in reading a recent decision that I wrote, BNA is publishing Teamsters Local 70 and DHL Express, 139 LA 653 (2019) in the coming days. I’m happy to make a copy available on request, and will be uploading the decision as soon as possible.