Andrea Dooley Arbitration

San Francisco Bay Area Labor Arbitrator

labor union

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.

How to Become a Labor Arbitrator

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UPDATE (11/10/22): This blog post has been adapted into a book, The Labor Arbitration Career, available for sale HERE. 

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!

 

 

What Is Substantive Arbitrability?

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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 andrealdooley@gmail.com.

I Digress: “Equitable Estoppel” and Procedural Arbitrability

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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.

If you’re interested, I’ve written about procedural arbitrability HERE and HERE and HERE, but definitely read them in order!

Other Types of Procedural Arbitrability Issues, plus bonus content on Timeliness!

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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.

What Is Procedural Arbitrability? Part Two

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In my last post, I talked about the importance of following timelines to ensure that there are no procedural arbitrability issues related to timeliness. I said, “Untimely grievances will not be heard” by an arbitrator.

Although the rule sounds firm, most arbitrators prefer to reach the merits, and don’t like to ding one party on a technicality. You sometimes hear this framed as, “Arbitrators dislike forfeiture,” meaning they hate forcing one party to forfeit on minor grounds. Arbitrators typically find that a dispute is arbitrable if there is some ambiguity in the language.

When does the time to file a grievance start running? As with so many things, it depends on the contract. The most straightforward answer is, when the employee knew or should have known about the contract violation, and has had a chance to raise it to their supervisor. If the contract language is unclear, an arbitrator isn’t going to impose a timeline. However, an employer argument that the employee unreasonably delayed raising the issue after learning about it might have some merit.

What is “knew or should have known”? This depends entirely on the facts of the case.  Obviously, an employee will probably know when they were terminated. On the other hand, an employee might not know that their vacation accrual is wrong until the union educates them about the contract. Parties seeking to enforce a strict timeline should show clear communication about the event triggering the grievance.

What about prospective events? An employer sends a notice on March 1 saying, effective June 1, they are unilaterally changing the schedule? When is the grievance ripe? When the event actually occurs. From March until the end of May, the union may seek to change the employer’s mind, and can hope to do so until it actually goes into effect. A grievance filed after June 1 within the timelines, is timely.

The timeline ends when the contract says it does. But what happens if it falls on a holiday, or a Sunday? Again, this will depend on the facts and how the parties have treated those days in the past, but some arbitrators will apply state law court filing rules to this. For example, if the state law says that court filings that would be filed on a Monday which is a state holiday are still timely if filed the next day, an arbitrator might apply the same rule to the grievance filing deadline.

Another definition that an arbitrator might need clarification on is whether the parties use calendar days or business days. For example, a five-day deadline will have very different consequences if it’s five calendar days rather than five business days. A union representative who isn’t aware of the meaning of their own contract could very easily failed to file their grievance in a timely fashion.

It is precisely this type of problem that arbitrators see most often. Someone forgot, sent it a day or two late, sent it to the wrong person or made some other minor mistake that causes the grievance to be untimely. Human error is no excuse, if the timelines have been consistently enforced in the past. Again, any lax enforcement will probably excuse the human error, but it will be an evidentiary question.

In my next post, I will discuss other types of procedural arbitrability issues. In the meantime, drop me a note if you have any questions or comments. Thanks!