Andrea Dooley Arbitration

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Nothing Ventured, Nothing Gained

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I have a lot of news to share!

First of all, if you are the type of person who likes podcasts, then you are in luck. I’ve started one called Ask the Arbitrator. It’s hosted on the Callin app. Not the highest sound quality on the planet, but by far the easiest platform for a podcast. Here’s a LINK to Episode 3. I thought I would give this podcasting a try. Let me know what you think.

Next up, I’m very pleased to share that I will be a Lecturer at the University of California, Berkeley Law, beginning in January 2022. I will be teaching Labor and Employment Arbitration with my colleague Barry Winograd. I’m looking forward to it.

In the likely event that you do not wish to enroll/re-enroll in law school next semester, you can also catch me live at the Labor Arbitration Institute Labor Law Conferences in Oakland and Los Angeles. Registration and details are HERE.

Evaluating Work out of Class Claims in the Public Sector

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For those of you who do not receive the California Labor & Employment Law Review, I am pleased to share my recent article on the topic of evaluating “work out of class” claims, of which I’ve seen a dramatic uptick in the past year and a half. I welcome your thoughts and feedback! Eval_Work_out_of_Class_CLELR_Nov-2021

Career Pathways in Labor and Employment Arbitration

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I am pleased to share that I will be a panelist on the Mexican Bar Association’s CLE “Career Pathways in Labor and Employment Arbitration” on Monday, October 25, 2021 from 5:00 to 6:00 pm (PST).

Planning a career change? Or just curious about whether you could be an arbitrator or mediator? Four labor arbitrators from California will share their thoughts and ideas about their field and how to break into arbitration. Many of the resources they will share apply to other career paths in Alternative Dispute Resolution. Featuring Chris Cameron, Andrea Dooley, Juan Carlos Gonzalez, and Katherine Thomson.

Register via the link below:
https://mabaattorneys.com/event-4534904

Travel Policy Change Effective January 1

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The COVID pandemic has led many people to reconsider how and where they do their work, and I’m no exception to that trend. I’ve adopted technological changes that allowed me to conduct hearings remotely, ensuring the safety of participants without any loss to the fairness and efficiency of the process. Without all the travel I used to do, I’ve reduced my carbon footprint and spent more time at home with my family.

I like these changes and have decided to make them a permanent part of my practice. Effective January 1, 2022, I will no longer accept cases that require in-person hearings outside of the Bay Area and Sacramento regions. Parties who select me from outside those regions are agreeing to conduct video hearings. Video hearings are a trustworthy and cost-effective method of resolving grievances that eliminate the need for air travel and related travel expenses. It also allows me and the parties to be home at the end of each day.

My rate schedule and guidelines will be updated to reflect this change. If you would like assistance in selecting arbitrators who are willing to travel or who live in your area, please reach out. I’m happy to help. I am also available for video hearings, and my availability calendar can be found HERE.

Thank you for your understanding.

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.