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!
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!
Like most sentient humans, I think a lot about climate change and how my actions could contribute to reversing the damage we are doing to the planet. I’ve evaluated some of the personal choices I make and have made some changes that I hope contribute, in some small way, to reducing my carbon footprint.
One of the biggest changes I made was to stop accepting arbitration cases outside the Bay Area that require in-person attendance. I’ve never loved traveling for work. I don’t like being away from my family. I don’t like sleeping in hotel rooms. I especially don’t like traveling for hours only to arrive at a hearing to learn that the matter has been settled or been cancelled or the parties are unprepared to present their cases. Prior to the pandemic, I had accepted those circumstances as a job hazard and dealt with them as they arose.
COVID showed us that in-person hearings are not strictly necessary, and I got accustomed to doing long-distance cases from the comfort of my home or office.
As the pandemic restrictions ended, I began to wonder why people felt a strong need to return to in-person hearings. I also wondered why we didn’t treat the climate change crisis as seriously as we had treated the COVID pandemic. The climate change crisis is easily an existential threat on the level of the COVID pandemic, yet it’s treated like a problem for future generations.
Before March 2020, it was not unusual for me to take 25 roundtrip flights a year for work. Many of those were one-day cases that involved only a few witnesses and had no site visit requirements. When I was faced with the prospect of returning to that level of travel, I was appalled by the impact my travel might have on the environment. The pandemic had shown that technology was available to conduct hearings remotely and that in-person hearings did not need to be the default mode. Deciding to stop travel became an easy decision; the only hurdle was notifying parties who regularly select me to hear cases. Fifteen months later, I have not seen a decline in case selections.
I am not alone among Alternative Dispute Resolution practitioners thinking about how to reduce our climate impact. The Campaign for Greener Arbitrations (https://www.greenerarbitrations.com/) and the World Mediators Alliance on Climate Change (https://womacc.org/) have both created Green Pledges which encourage neutrals to reduce their carbon footprint.
Despite the positive experiences and value of video technology, there is still pushback from parties who would like to return to in-person hearings as a default. And although I am very comfortable with having video hearings, there are a few things I miss. I think it’s worthwhile looking at what is lost in remote hearings and to consider whether there are ways to recover those benefits in remote hearings.
Settlement discussions: It was customary for me to ask the attorneys before the hearing started whether they’d had an opportunity to discuss settlement prior to the hearing. If the answer was no – and it often was – I’d ask them to take a few moments to confer outside the hearing room before we began. While settlement didn’t often ensue, they were often better able to come to agreements later in the hearing either on evidentiary issues or even on the resolving the case itself.
Solution: Making settlement discussions an expected or even mandatory part of the hearing process can be accomplished with a pre-hearing order or just a request at the beginning of the hearing. This is within the control of the arbitrator.
In the hallway conversations: Similarly, issues occasionally arose during a hearing that warranted a discussion with the parties in the hallway outside the hearing room. Sometimes it was to admonish a difficult attorney who I was not ready to embarrass in front of their client. In other cases, it was to suggest to the parties that their line of questioning might “open a can of worms” that neither party intended to bring into the room. Sometimes, it was to raise the question of settlement again, having heard something that made settlement a preferable outcome for everyone. That flexibility is hard to achieve with video. I’ve met with attorneys in a break-out room, but it is a little harder to do in a fluid manner.
Solution: To achieve this in a virtual hearing setting, the arbitrator needs to exercise their discretion more frequently and could normalize executive sessions by opening every case with one. That’s a common approach in mediation and might make video hearings feel more like in-person hearings.
Subtle cues: When everyone is around a big table, it’s much harder to miss body language. I don’t mean witness body language. Most arbitrators don’t rely on body language to determine credibility. I mean MY body language. In person, I will often put my pen down or stop typing to indicate when I think I’ve heard enough and believe the testimony is cumulative or irrelevant. Prolonged stares at an attorney are hard to miss on video.
Solution: This is a hard one to incorporate into a video hearing. No matter how hard I try, I can’t seem to telegraph frustration, exhaustion, and boredom via Zoom. This is probably better for the parties, since it means I have less control over the proceedings than they do. But lacking cues from the arbitrator, parties will need to be more judicious in how they present cases. Anticipating what the arbitrator might think of a particular line of questioning (or length) would improve the quality of the case.
It’s also useful to note that video technology has resulted in positive gains to the arbitration process.
- Preparation: Parties are much better prepared when they have to meet witnesses and review documents prior to the hearing. Zoom hearings are dramatically better than in-person with respect to attorneys being prepared, and I hope it carries back into in-person hearings.
- Access for participants: More people can participate. There are more witnesses available. Observers can unobtrusively learn from the proceedings. Bargaining unit members can watch. All this improves the quality of the case and the strength of the labor management relationship.
- Witness testimony improved: Witnesses are more likely to participate in hearings if they can appear remotely, and they have a higher degree of comfort with the proceedings when they appear by video. This means more witnesses and better testimony, as well as fewer days of hearing and less lost productivity.
- Level playing field: Video levels the playing field by improving access to people from across worksites, geographical locations, shifts, and relationship to the case.
- Greater selection: The parties can hire from a wider selection of arbitrators and advocates to hear and present their cases at a lower cost. This means hearings can be scheduled more quickly and the opportunities available to newer arbitrators from more backgrounds are possible.
I’m sure that there are other elements I haven’t considered, but the few others I’ve heard haven’t been positive. One attorney told me it’s harder to intimidate the other side via zoom, which wasn’t persuasive, since that’s not the point of arbitration. I’d love to hear your thoughts, and whether you and your client would prefer arbitrators who took the Green Pledge even if it meant more online hearings.
I will be a faculty member at the Labor Arbitration Institute trainings in San Francisco on September 5 and 6, and in Seattle on October 5. These lively and informative trainings offer CLE and CEU units and plenty of time to meet arbitrators and ask questions. Many folks find the Institute to be great for newer and more experienced practitioners. If you come, please introduce yourself to me as a website visitor! I will be speaking on Sexual Harassment and Past Practice, and opining on many hypotheticals. Please join me!
Continuing violations grievances are another exception to the idea that untimely grievances will not be arbitrated. In a continuing violation grievance, the union alleges that the violation of the collective bargaining agreement recurs, maybe on a daily or weekly basis. Every day is a new violation and therefore a grievance is not untimely even it’s filed outside the time limits of the first violation. The remedy may be restricted to the time frame of the grievance. For example, a group of workers believed that they should have been paid on-call pay rather than standby pay when one of them reads the contract and decides that having to wait at the workplace, as they have done for years, sounds more than like on-call than standby as those terms are defined by the contract. The employer says, “Nope, your grievance is untimely, there’s a past practice, etc., etc.” The arbitrator will probably disagree with that employer, and find that the allegation is timely, but will likely limit the recovery to thirty days (or some other contractual limit) prior to filing the grievance, if she finds that a violation has occurred.
If you’ve liked this series, please bookmark my blog and visit again soon. If you would to read the whole series on Procedural Arbitrability, it starts HERE. In my next few posts, I’ll be discussing Substantive Arbitrability.
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.