I wanted to try something new so I’ve started a newsletter on Substack called Champions of Conflict. So far, I’ve written a welcome email and my first post with content. It’s free (for now) so please consider subscribing!
labor union
January 11 Los Angeles Labor Law and Labor Arbitration Conference
It’s a little late notice, but I will be speaking at the Los Angeles Labor Law and Labor Arbitration Conference on January 11, 2024, at the LA Convention Center. More details about this great event can be found HERE.
Meet the Arbitrator is Back!
I am excited to announce that the Northern California NAA will again host its popular Meet the Arbitrator conference on September 29, 2023, in downtown Oakland. This is an extraordinary opportunity to meet and engage with labor arbitrators and other advocates in Northern California. Registration is $150; lunch is included. Do not hesitate to register as there is limited seating in the venue.
I look forward to seeing you there!
Nothing Ventured, Nothing Gained
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
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?
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.