Five of the top labor arbitrators in Michigan taught a class that is held every year in Detroit.  Here are some of the highlights.


Hot Debate

At the conference, the faculty discussed recent cases and how they would have ruled if the case had been presented to them.  One case generated considerable debate among the arbitrators.

The case arose in a manufacturing setting, where the employer used a bell system to alert employees to take their 10-minute break.  The first bell rang at zero hour.  The second bell rang at 10 minutes.

In 2001, the employer added a third bell which rang at 12 minutes.  Under this system, employees would start their break when the first bell rang, listen for the second bell which rang at 10 minutes, and then be at their work station by the time of the third bell, which rang at 12 minutes.

In other words, the second bell operated as a warning bell.  The dispute arose in 2006 when a new management team decided to eliminate the third bell.  In fact, the new management team issued an oral warning to two employees who were not back at their station by the second bell.

The union grieved, on the grounds that the 3-bell system was a 5-year past practice.  Both sides raised bargaining history, contract language, and the other usual arguments.

The arbitrators on the panel were divided.  Two would have upheld the oral warnings, but three would not have.  And the rationale for the majority was that the employer had waited 16 days into the new contract term to change the bell system.  By virtue of waiting 16 days (and not announcing the end of the past practice in negotiations), the employer had kept the past practice.

Like the arbitrator in the actual case, the panel also had to decide whether to uphold the 8-10-12 system or go back to the 8-10 system.  Interestingly, the arbitrators again split 3-2, but with two arbitrators switching sides.  This time, the arbitrators divided over whether management should have some flexibility at the beginning of a contract period to sort things out.

In summary, some arbitrators favored the contract language, others placed more reliance on the past practice.  Still, others penalized management for blind-siding the union, while others thought management's hands were clean.

Off-Duty, and it's only an arrest

In the typical off-duty misconduct case, management must prove nexus, the Latin term for connection.  Management must prove there is a connection between the employment relationship (or the employer's business) and what the employee did on their own time and off-premises, and that this set of facts warrants discipline.

An audience member asked this question of Arb. Ted St. Antoine:  What should an employer do, when one of its employees has been arrested and by the time of the hearing, it is still just an arrest.  The prosecutor has not brought the charge forward.

Arb. St. Antoine replied:   The key is the question of publicity.  If someone has simply been arrested, and that arrest has received a great amount of publicity, that's what you are concerned about.  You are  concerned about the public image of the employer.  If we are talking about a medium sized or larger city, a mere arrest is simply not going to attract that kind of attention.  Notice here, we are not making the judgment as to whether the employee is guilty of some reprehensible conduct.  It is whether he has, in the public eye, saddled himself with some kind of characterization because of the publicity that is going to adversely affect the employer's business interest.  Now, that has to be balanced with other interests, such as the employee's privacy and public policies, for example, against discrimination.  I wouldn't be worried about whether the employee was technically guilty for which he was charged.  The question is whether there is an adverse affect on the employer's business, that is not outweighed by the employee's right of privacy or some other recognized public policy.

Arb. St. Antoine taught at the University of Michigan law school and is a former president of the National Academy of Arbitrators.  His answer reflects the mainstream view among arbitrators.
 
Clearly Not Telling the Truth

In his lecture on advocacy, arbitrator Bill Daniel quoted an excerpt from a published case.  Arbitrators generally write with all the skills of a diplomat, but sometimes being blunt helps all of us.

The case, Cameron Iron Works, is published at 73 LA 879.  The employer was discharging the grievant for theft.  The police had discovered the employer's tools in the grievant's car.  The grievant denied taking them from his employer. Instead, he argued that he had purchased them from a stranger for $500.  And that he did not notice that his employer's name was imprinted on the tools.  There were more facts, but this was the gist of the grievant's explanation.

In the award, the arbitrator wrote:  The grievant's exculpatory defense may be dismissed out of hand.  His story is so patently absurd that I will not dignify it by categorizing it as a lie.  It hardly even rises to level of BS.  And if the union officials believed it, they also believe in Santa Claus and the tooth fairy.

(The arbitrator used the actual word, but we use BS because of email filters)

Bill went on to explain that advocates from both sides should always be concerned about the credibility of their witnesses, and to use this case as a ready reminder of what can happen -- even if your arbitrator is not this explicit.

Arb. William Daniel has been a full-time labor arbitrator for nearly 40 years, and one of the busiest in the country.

Settle Now or Later?

Bill also discussed a number of cases which go to arbitration, but should be settled.  Arbitrators wish that parties would prepare the case with an eye toward settlement.  And arbitrators do not like settlements on the courthouse steps, but he realizes that many wait that long to see the light.  This situation reminded Bill of what the late Senator Everett Dirksen used to say:  When I feel the heat, I see the light.

The next Newsletter will be mid-September.  Thank you for reading!