The Basics of Arbitration

Susan Tsui Grundmann

NFFE General Counsel

Modified for NFFE-FSC Reno Training by J.R. Obst

October, 2003

What is Arbitration?

.

A process of dispute resolution in which a third party neutral

(arbitrator) renders a decision after a hearing at which both parties

have an opportunity to be heard.

What can an Arbitrator do?

An Arbitrator is empowered only to resolve the issues submitted. The scope of this ability is defined by the collective bargaining agreement (CBA), the issue as

defined by the parties, and law.

What Arbitration is not.

• Not an agency procedure.

• Not a court of law.

• Not an administrative forum (EEOC, MSPB).

• Does not exist outside the CBA.

Union Goals in Arbitration

Prove our case.

Answer the

agency’s case.

Proving Our Case• Facts.• Contract or MOU language.• Law, rule or regulation.• Parties’ intent.• Past practice.• Practice of other units within Agency.• Equity.• Arbitration precedent.

Prior to Arbitration

• Re-evaluate facts.• Re-evaluate any threshold issues.• Re-evaluate remedy requested.• Interview potential witnesses.• Review all documents.• Review relevant agency policies, orders and regs.• Request information and review agency response.• Review previous related issues and facts.• Fulfill any bylaw requirements.

Selecting an Arbitrator• Collective Bargaining Agreement language

is controlling.

• Past Practice.

• Contact the Federal Mediation and Conciliation Service (FMCS) for a panel of arbitrators at www.fmcs.gov.

Selecting an Arbitrator

• Review arbitrators qualifications and their biographical sketches; ask for some written decisions.

• Review list with NFFE National.• Choose arbitrator in accordance with the CBA.• Notify the FMCS of arbitrator selection.• Arrange hearing date with arbitrator and mgmt.

Preparing Case for Arbitration

• If there is an outstanding info request/ ULP, postpone the hearing if you believe the info is necessary to present your case.

• Gather all information needed to present case.• Identify witnesses and interview them. Know

what they will say in arbitration.• Make copies of all documents for arbitrator and

for Management.• Determine what information and facts can be

stipulated in conjunction with management.

Pre-Hearing Conference

• Joint Exhibits.

• Joint Stipulations.

• Definition of Issue.

• Appearance and Availability of Witnesses.

• Housekeeping.

Joint Exhibits

Joint exhibits are documents and other evidence for which the parties agree that authentication and foundation are not required.

Joint exhibits may be documents that are contested in terms of weight and veracity.

Exhibits that are not joint may be introduced separately by either party with proper authentication and foundation.

Examples of Joint Exhibits

• Collective bargaining agreement.

• Grievance package.

• Relevant agency regulations, policies and orders.

• Copies of statutory regulations.

Joint StipulationsJoint stipulations are facts that are agreed to

by the parties. An arbitrator cannot deviate from jointly

stipulated facts and issues.Parties cannot argue contrary to joint

stipulations.Reduces the complexity of the hearing.Do not stipulate to damaging facts!

Examples of Joint Stipulations

• Names, dates, events.

• Past practice.

• Agency actions and underlying intent.

• Issues.

Defining the Issue

Disciplinary cases: Do the facts support the charges? If so, is the discipline appropriate? If not, what is the remedy?

Contractual cases: Did the agency violate Article XXX of the CBA when it . . . ? If so, what is the appropriate remedy?

Regulatory/statutory cases: Did the agency violate XXX when it . . . .? If so, what is the appropriate remedy?

Issue Definition: Lessons Learned

• Question format.

• Request remedy.

• Do not deviate from existing language.

• Jointly Stipulated v. Union Submission.

Housekeeping

• When and where.• Room set up. • Scheduling requirements (official time).• Equipment (telephone, flip chart, computer).• Sequestering witnesses.• Recorder/stenographer ($$$).• Observers.

Arbitration Hearing

• Formal hearing. Witnesses are generally sworn in.

• Arbitration consists of:– Opening statement– Stipulated facts and documents– Written evidence from each party– Witness testimony– Final closing (oral and/or written)

• Party with burden of proof presents first:– In personnel actions, including discipline, the

Agency presents case first. – In other cases, the Union presents case first.

Arbitration Hearing

Don’t fight with the arbitrator.

Don’t waste the arbitrator’s time fighting with management.

You are there to convince the arbitrator, not management.

Settlement may be negotiated at any time until receipt of arbitrator’s decision.

You know what you get!

Opening Statement

• State the case in one sentence.• Provide a roadmap for the arbitrator.• State undisputed facts.• State pertinent contractual or regulatory language.• Highlight strength of your case.• Briefly address weaknesses.• State remedy requested.

Witnesses

A witness must be qualified, straightforward, and credible.

Interviewing Witnesses

• Interview early and before the hearing.

• Prepare questions.

• Review documents.

• Discuss weaknesses in testimony.

• Discuss possible cross examination .

• Ethics.

Guidance for Witnesses

• Answer the question asked.• Do not volunteer information!• “I don’t know.”• Be alert.• Be courteous.• Talk to the arbitrator.• How to handle objections.

Direct Examination• Have your witness introduce him/herself:

– Name and address.– Employment, past and present.– Basis of knowledge of the grievance.

• Note: Expert witnesses must be qualified as such before testifying.

• No leading questions.

Documents

A document must

be in the record

to be considered.

Getting Documents In

Stipulation

Authentication

Foundation

Preparing Documents for the Record

• Read it. All of it!

• Label it.

• Who will introduce it?

• What will they say about it?

• Anticipate cross-examination.

Evidence Standards.1. Disciplinary and adverse actions.

Preponderance of evidence (51%):

– “The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” (1201.56(c)(2) 5 CFR)

– “A standard of proof which is met when a party’s evidence on a fact indicates that it is “more likely than not” that the fact is as the party alleges it to be.” (Black’s Law, Fifth Edition)

Evidence Standards. 2. Unsatisfactory performance actions.

Substantial evidence:

– “The degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.” (1201.56(c)(1) 5 CFR)

– “Such evidence that a reasonable mind might accept as adequate to support a conclusion.” (Black’s Law, Fifth Edition)

Introducing Documents

“Laying the proper foundation.”- show document;- identify document and its source;- discuss document;- move to admit document;- address any objections through argument;- move to admit.

Arbitration Hearing

• You may object to questions and answers from other side:– Hearsay;– Goes against stipulations;– New evidence never presented before;– Irrelevant to case at hand.

Arbitration Hearing

• When asking your witnesses questions, be sure you know the answer before you ask. (Prepare witnesses before hearing, so you know what they know.)

• When cross examining management witnesses, ask yes-no questions. Do not ask “WHY” or open-ended questions.

Cross Examination Objectives

To discredit the witness’ direct testimony.

To highlight conflicting testimony.

To produce affirmative testimony.

Cross Examination Techniques

• Questions based on unrefutted fact and documents.

• Impeachment (challenge and discredit).• Build on and relate back to previous testimony.• Don’t ask a question if you don’t know the

answer.• Use leading questions.• Know when to stop.

Handling Objections

• Relevancy.• Hearsay.• Foundation required• Assumes facts not in evidence.• Witness qualification.• Testimony based on excluded evidence.• Surprise/bad faith.• “Asked and Answered.”

The Goals of Arbitration

Prove your case.

Answer your opponent’s case.

Answering Management’s Case

• Unclear testimony from agency witnesses.

• Incomplete testimony.

• Contradictory testimony.

• Hearsay or opinion.

• Introduction of new evidence.

Common Errors in Case Presentation

• Relying on minimum facts and maximum argument.

• Concealing facts and distorting truth.

• Delaying through legal technicalities.

• Failing to cooperate with the arbitrator.

• Disregarding decorum and courtesy.

• Being argumentative with the other party.

Closing Statement• In lieu of a post-hearing brief.• Review facts presented.• Respond to points against your case.• State the Agency’s case and how evidence fails

to support Agency’s suggested outcome.• Restate the issue and remedy sought.• Argue for your outcome.• Cite previous decisions.

Standards Applied in Contract Interpretation Cases

The Union bears the

burden of proof.

Standards Based on Contract Language

• “Clear and Unambiguous.”

• Specific language vs. general terms.

• The agreement construed as a whole.

• Normal and technical term usage.

Standards Going Beyond the Contract

• Intent of the parties.• Bargaining history.• Compromise offers.• Past practice (reasonable, uniform and

recurring over a substantial period of time).• Language construed against the drafter.

Standards Applied in Disciplinary Cases

The Agency bears the

burden of proof.

Mitigation of Penalty(Douglas Factors)

• Forewarned is forearmed.• Management investigation.• Substantial evidence rule.• Fair and equitable.• Mitigating circumstances.• Inconsistent enforcement of rules.• Rehabilitation.• Punishment befits the crime.• Procedural deficiencies.

Post Decision Procedures

Watch your timeframe!

Once the decision comes out, there are limitations on post judgment

process.

The Union PrevailsEnforcement

An unfair labor practice may be filed under 5 U.S.C., Section 7116 within 6 months of the date of service of the award.

Agency Appeals The Agency can only file exceptions to the

FLRA on arbitration awards which do not involve an adverse action.

The Agency Prevails

Cases other than disciplinary issues.Exceptions must be filed with the FLRA within 30 days of date of service of the award.

Disciplinary but non-adverse actions.Exceptions must be filed with the FLRA within 30 days of the date of service of the award.

Adverse actions.Appeals can only be filed with the U.S. Court of Appeals for the Federal Circuit.

Exceptions to arbitration awards.

Exceptions are only sustained for very narrow reasons: generally, arbitrator’s decision is a violation of law.

Recovery of attorney fees.

• No requirement to raise the issue during the grievance process. Can do so in arbitration.

• 5 USC 7701(g) is the prevailing standard.

• Attorney fees may also be recovered in EEO and MSPB complaints.

Attorney fees are “warranted in the interests of justice” if one of the following applies:

• Agency committed a Prohibited Personnel Practice;

• Agency action was:- clearly without merit;- wholly unfounded;- or the employee is “substantially innocent”;

• Agency action initiated in “bad faith” (e.g.., harassment);

• Agency committed a “gross procedural error”;• Agency knew, or should have known, that it

would not prevail.