Mgmt 583
Chapter 15: Grievance
Arbitration
Fall 2008
Rights Arbitration

Steelworker’s Trilogy - the legal foundations
of rights arbitration. Establishes the
conditions under which federal courts are
permitted to overturn and arbitration award.
If these conditions are NOT met, federal
courts may not intervene.
Steelworker’s Trilogy

United Steelworkers v. Warrior & Gulf Navigation,
363 U.S. 574 (1960)


A party is required to arbitrate a dispute if a CBA
provides for arbitration, unless it can be stated with
positive assurance that the arbitration clause does
NOT apply to this particular dispute.
In practice, the language in the CBA should specifically
exclude the issue from arbitration.
Steelworker’s Trilogy

United Steelworkers v. American
Manufacturing Co., 363 U.S. 564


A court may not rule on the potential merits of a
grievance in determining its arbitrability, even if
the claim appears to be frivolous to the court.
Courts are limited to ascertaining whether the
parties agreed to submit a matter to arbitration.
Steelworker’s Trilogy

United Steelworkers v. enterprise Wheel &
Car Corp., 363 U.S. 564

An arbitrator’s award must be enforced so long as
the none of the following condition have
occurred:



Fraud on the part of a party.
Dishonesty on the part of the arbitrator.
The award was not drawn from the essence of the
contract.
Arbitration

United Paper Workers v. Misco, 484 U.S. 29 (1987).

Isaiah Cooper was an employee of Misco, Inc., Monroe, LA. On
January 21, 1983, the police searched Cooper's house pursuant to a
warrant, and a substantial amount of marijuana was found. A police
officer was detailed to keep Cooper's car under observation at the
Misco's parking lot. At about 6:30 p.m., Cooper was seen walking in
the parking lot during work hours with two other men. The three men
entered Cooper's car momentarily, then walked to another car, a white
Cutlass, and entered it. After the other two men later returned to the
plant, Cooper was apprehended by police in the backseat of this car
with marijuana smoke in the air and a lighted marijuana cigarette in
the frontseat ashtray. The police also searched Cooper's car and found
a plastic scales case and marijuana gleanings. Cooper was arrested
and charged with marijuana possession.
Arbitration

United Paper Workers v. Misco, 484 U.S. 29
(1987).



Employee was discharged for possession of drugs on
company property.
United Paperworkers International Union filed a
grievance challenging the discharge.
The Discharge went to arbitration.


The Arbitrator, Dr. Milden J. Fox, Jr., reduced to a lesser
penalty.
Misco took to 5th Circuit on the grounds the award was
contrary to public policy (plant safety was threatened).
Arbitration

United Paper Workers v. Misco, 484 U.S. 29
(1987).

Dr. Fox’s comments in his award:
"The only thing that the Company
has proven is that the Grievant
was sitting in the back seat of a
car in which there was found a
lit marijuana cigarette in the
front seat ashtray . . . ."
Arbitration

United Paper Workers v. Misco, 484 U.S. 29
(1987).

Arbitrator’s award:


Drugs were used off the work site according to the
grievant.
The contract did not mandate termination for the
offense (an employee could be terminated for drug
possession). Consequently a lesser punishment could
be imposed.
Arbitration

United Paper Workers v. Misco, 484 U.S. 29
(1987).

Supreme Court:



A public policy violation was not clearly shown.
The contract did not require termination for the
offense.
Since the award was drawn from the essence of the
contract, the arbitrator could impose a lesser penalty.
Deferral to Arbitration

NLRB may defer to arbitration disputes that
involve both unfair labor practices and
contract violations.


NLRB retains more control over deferrals than a
standard arbitration.
The NLRB make revoke a deferral under the
Speilberg doctrine
Deferral to Arbitration

Spielberg Manufacturing Co., 112 NLRB
1080 (1955). Conditions that must be met
before the NLRB accepts an arbitrator’s
award on a deferral.


The arbitration proceedings must be fair and
regular.
Arbitration of the matter must be mandatory and
binding.
Deferral to Arbitration

Spielberg Doctrine


The arbitration award cannot be contrary to the
NLRA or the principles established by the NLRB
(must follow precedence)
The arbitrator must specifically consider the ULP
in his/her award.

Must be expressly presented and considered by the
arbitrator.
EEO and Arbitration

Alexander v. Gardner-Denver Co., 415 U.S.
36 (1974).


If the grievant is dissatisfied with the arbitration
award, he/she may still make a claim under Title
VII.
EEO grievances may be re-litigated after
arbitration.
Arbitration

Pre Arbitration Matters



Have procedures in the CBA been followed?
Is it possible to resolve the matter internally?
Have the timeliness provisions of the grievance
procedure been adhered to?
Arbitration

Selection of the Arbitrator



May have a specific arbitrator designated in the CBA (a
permanent umpire).
More often ad hoc arbitrators are used.
Three sources of arbitrators:



National Academy of Arbitrators.
American Arbitration Association (AAA)
FMCS
Arbitration

Prehearing Activities




Review the history of the case.
Ascertain all contract clauses having bearing on
the case (more than one clause may be affected).
Determine the scope of the arbitration (what can
or cannot be awarded).
Question any (if any) witnesses.
Arbitration

Prehearing Activities




Prepare a written summary of expected
testimony.
Organize relevant records and documents (to
include notes from bargaining sessions).
Conduct a physical examination of the site where
the dispute arose.
Prepare statistical & pictorial exhibits.
Arbitration

Prehearing Activities


Consider the firm’s past practices (look for
consistency).
Identify the critical point upon which the award is
likely to turn.



Prior warnings in a discharge case.
Knowledge of a specific work rule.
Support “interpretation” cases with written
arguments.
Arbitration

Prehearing Activities



Support “interest” cases with appropriate
economic, statistical, or relevant data
(justifications for temporary out-sourcing, e.g.).
Try to establish precedence from previous
arbitration awards.
Prepare an outline of your case and disseminate it
to group members.
Arbitration

Hearing



Parties may include the grievant, attorneys,
company officials, and union officials.
The union, bringing the grievance, usually goes
first.
The Management has the burden of proof in
discharge and discipline cases.
Arbitration

Hearing


The union has the burden of proof in al other
cases.
The rules of evidence are more liberal than in a
court of law.
Arbitration

Post-Hearing


Either party may still submit briefs (additional
information in writing).
Only after the briefs are collected will the
arbitration begin his/her award.
Arbitration

Arbitration Awards & Remedies

Format of the award:




Summary of the evidence.
Rationale behind the award.
The award itself.
Corrective action that is required to satisfy the
award.
Arbitration

Arbitration Awards & Remedies

In preparing their awards Arbitrators must
consider the following:




Determine if the award is arbitrable.
Was the issue involve an actual contract violation.
Were the grievance procedure/steps properly
followed.
Finally, the arbitrator may now judge the case on
its merits.
Arbitration

Expedited Arbitration




Used primarily for individual discipline or
discharge cases
Arbitrator hears several cases instead of a single
arbitration in a single hearing.
The written awards are very short.
These are designed to expedite very straightforward cases.
Arbitration

Tripartite Arbitration



Used primarily for extremely important cases
Three arbitrators hear a single issue.
The award is based on majority of the panel.