Andrea Dooley Arbitration

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To Cite or Not to Cite

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I’ve been working my way through a number of decisions this week, several of which I started after the hearing and am now returning to after receipt of closing briefs. I noticed that I haven’t developed a consistent practice around citing to the record. In some cases, I made extensive references to the transcript with citations to the page and line. In others, I skipped the citation, although I may have quoted directly from the transcript. In all cases, I cite the exhibits.

Do the readers of an arbitration award care about citations? In most cases, the award is for the private use of the parties and the grievant. They participated in the hearing and have access to the same record that I have. I’m not sure they need citations. Future readers, such as subsequent party representatives or other arbitrators, are not going to have the record at hand to fact-check the arbitration award, so they don’t need it either. The same reasoning goes for published awards. Published decisions of the courts do cite the record but those records are usually public, so the reader can go check the docket and retrieve the information themselves to understand the context of the court’s opinion.

I’ll be honest: I do not love doing the transcript citations. Quite often, the facts I’m stating are not in dispute. Adding citations is time-consuming, which results in higher costs for the parties. I am committed to keeping costs low because I believe the purpose of arbitration is to provide an expeditious and cost-effective form of dispute resolution. But I don’t know what the parties want.

Going forward, I think I will try to follow these guidelines:

  1. Always provide the exhibit number if the information comes from an exhibit.
  2. Always cite the transcript page and line or exhibit page when using a direct quotation from the record.
  3. Undisputed and background facts do not require citations.
  4. Disputed issues where I am making a finding of fact should be supported by citations (and evidence, obviously).

As an advocate, I do not recall ever needing a citation in an award. That was many years ago, however, and I am curious what other people prefer.

COVID-19 and Labor Arbitration

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My colleague Rick Bales has recently published an article called Novel Issues in Canadian Labour Arbitration Related to COVID-19. Here’s his summary:

The COVID-19 pandemic of 2020-21 changed working conditions for millions of Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labour arbitration. This article surveys those labour arbitration awards.

It is notable that Arbitrator Bales was able to find enough published arbitration awards to complete this timely work. Canadian arbitration awards are almost always published, either because it is required by law or because the parties have agreed to it as a common practice. This is different than the American model which does not require publication and where the parties are customarily hesitant to have the award published, even if the identifying information is redacted. Arbitrator Bales is collecting American arbitration awards to complete a similar analysis for US labor arbitration and I invite practitioners to consider sharing awards with him so that he can do a comprehensive review.

If you have an arbitration award (published or unpublished) which you would be willing to share with Arbitrator Bales, please send me an email.

The Impact of the PRO Act on Labor Arbitration Practice

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Brandon Magner has been covering the Protecting the Right to Organize Act, or PRO Act in his must-read publication Labor Law Lite. The PRO Act of 2021 would dramatically reform the National Labor Relations Act and reinvigorate Section 1 of the NLRA, which says

It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

The PRO Act passed the House on March 9, 2021, and has been referred to the Senate. As Magner notes, the Democrats evolving views on the filibuster may be a good sign for the passage of the PRO Act. Labor law reform has been off the table for so long that most practitioners haven’t considered the implications of reform on the practice area. More practitioners are taking a closer look and, regardless of which “side” they are on, anticipate major changes if the PRO Act were to become law.

I wonder what impact, if any, the PRO Act would have on labor arbitration practice so I thought I would review the Act with an eye toward changes we might expect to see in the field of labor arbitration.

Nominally, the PRO Act covers labor organizing. Arbitrators are occasionally called on to adjudicate disputes that arise during organizing campaigns, where the parties have an organizing agreement, such as a card-check procedure. These agreements were often devised outside the purview of the National Labor Relations Board because of the delay those proceedings caused, and the latitude employers had to obstruct organizing campaigns that used Board elections. I’ve done a number of card-check certification hearings and I know other arbitrators who administer elections. The main impact of the PRO Act on arbitrator oversight of union elections and organizing agreements is that labor arbitrators are going to have much less work in this area. Unions are more likely to use the NLRB election process, with its clear timelines and different election options, than election agreements, which have to be negotiated before they are used.

Section 104 of the PRO Act will have the biggest impact on labor arbitrators. Subsection 3, which applies to first contracts, states:

If . . . the (Federal Mediation and Conciliation) Service is not able to bring the parties to an agreement by conciliation, the Service shall refer the dispute to a tripartite arbitration panel established in accordance with such regulations as may be prescribed by the Service, with on member selected by the labor organization, one member selected by the employer, and one neutral member mutually agreed to by the parties.

This section goes on to direct the Service to appoint members to the panel if the Union or Employer does not do so within 14 days, and provides that, “A majority of the tripartite arbitration panel shall render a decision settling the dispute as soon as practicable and not later than with 120 days, absent extraordinary circumstances or by agreement or permission of the parties, and such decision shall be binding upon the parties for a period of two years, unless amended during such period by written consent of the parties.”

This interest arbitration approach is common in the public sector and some private sector industries. Employers will no longer be able to run out the clock by bargaining for a year without reaching an agreement. The parties are assured a first contract that is at least two years in duration. FMCS should not have any difficulty administering the tripartite panels; they already provide thousands of arbitration panels each year to parties with existing collective bargaining agreements. The PRO Act also lays out the factors that the panel will consider in rendering its decision. It also amends Section 9 to provide that the Board can order bargaining for the first contract as a remedy in an unfair labor practice charge. Section 105.

One of the more frustrating issues that labor law practitioners face is that there are many legal tests that are at the whim of the political bent of the Board members. The PRO Act codifies two particular changes that are likely to have a downstream effect in labor arbitration. First, the definition of “Supervisor” is amended by striking “assign” and “or responsibly direct them” from the responsibilities which constitute supervision under the Act. Parties in bargaining and arbitration have long relied on the Act’s definition of supervisor for the scope of the bargaining unit and for work out of class disputes, for example.

Another PRO Act change is, “The rights of an employee under Section 7 include the right to use electronic communication devices and systems of the employer of such employee to engage in activities protected under Section 7 if such employer has given such employee access to such devices and systems in the course of the work of such employee, absent a compelling business rationale for denying or limiting such use.” Section 104(i). The use and abuse of employer-provided electronic communication is a frequent topic or arbitral review, and this standard may have application in those cases.

The PRO Act expands the kinds of damages that employees can recover in unfair labor practice cases, including back pay without reduction, front pay, consequential damages, and liquidated damages. Section 106. It also requires these remedies be available to undocumented workers. The Act also provides for monetary fines against employers who commit unfair labor practices, as well as attorneys’ fees and other remedies.

This will affect the Board’s deferral practices.  Will Unions agree to deferral if the remedy is better from the Board, or will arbitrators be permitted or required to award non-contract damages more in line with the new provisions of the Act? Will that have a spillover effect on other types of grievances?

The PRO Act will be the most dramatic reworking of labor law since the passage of the NLRA in 1935. Labor arbitrators will be affected by these changes in ways we cannot anticipate, but I expect it will invigorate our practice area and expand opportunities for newer arbitrators, both of which are necessary.

Revisiting Video and In-Person Hearings

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Since mid-March, most of California has been in some stage of pandemic lockdown or another. In April, I shared my video hearing procedures and an increasing number of parties are willing to conduct their arbitrations and factfinding hearings via videoconference.

There are a few employers and unions, however, that prefer to have their hearings in person. I’ve done two. In both cases, the hearings were held in large conference rooms with lots of hand sanitizers and breaks to air out the room. Everyone wore masks. It’s an inferior experience because we can’t see each other’s faces, and the court reporters have a difficult time hearing people whose voices are muffled and are seated far away.

Other parties continue to request in-person hearings, and after discussion with fellow arbitrators and some research into the best way to proceed, I’ve decided to change my policy to only schedule in-person hearings in California counties which have moved into the lowest current tier (Yellow tier). This seems like a data-based approach that will be clearly understood by parties. The yellow tier means that there are fewer than 1 cases per 100,000 people, and indicates that it is likely safer in that area. It also means I won’t have to decide whether or when to return to in-person hearings; the state of California can decide for me.

Things are looking good today. California just moved 40 counties back into the purple tier because of elevated case loads throughout the state. Hopefully, swift action will help the spread of COVID and we can all get back to in-person soon.