Grievance Arbitration Case Manual
by Daniel J. Nielsen
(Caution: Significant portions of this manual have not been updated for several years. Especially for that reason, it is offered as a potentially convenient starting point for research but ought not be relied upon as currently comprehensive or authoritative. [disclaimer])
WERC ARBITRATION MANUAL
This document is designed to familiarize staff arbitrators with some of the problems commonly encountered prior to, during the course of, and after the close of conducting an arbitration case. The document does not purport to provide any hard and fast answers, but merely highlights some of the considerations that go into addressing such problems and reviews the approach taken by several arbitrators. Reference to the listed sources, the proceedings of the National Academy of Arbitrators and reported arbitration decisions may provide other valid approaches taken by respected arbitrators. The discussions included here should be taken as a starting point for further research and consideration, rather than as a statement of rules governing the disposition of a given situation. This document is not intended to alter the Commission's policy of granting wide latitude to staff arbitrators.
This document may not be cited as authority in any proceeding before the Commission or Commission staff members.
The sources for these guidelines include:
1. The Zack Presentation in April of 1982;
2. The Melli/Lee Presentation in April of 1982;
3. The arbitration checklist prepared by Tom Yaeger in 1981;
4. Elkouri, How Arbitration Works;
5. Fairweather, Practice and Procedure in Arbitration;
6. Hill & Sinicroppi, Evidence in Arbitration;
7. Yaffe, The Saul Wallen Papers;
8. Siegel, Proving Your Arbitration Case;
As well as the observations of staff members.
[Grievance Arbitration Case Manual]
I. BEFORE THE HEARING
B. Reviewing the Grievance Procedure
C. Disclosures Required by Law
II. BEFORE GOING ON THE RECORD AT THE HEARING
B. Formalizing Prior Understandings
F. Establishing the Order of Proceeding
H. Participation in the Hearing
J. Use of Tape Recorders by One Party
K. Serving as Chair of a Tri-Partite Panel
III. ON THE RECORD
A. Arbitrator's Opening Statement
B. Sample Arbitrator's Opening Statement
D. Parties' Opening Statements
E. Procedural Considerations During the Hearing
IV. AWARDS
I. BEFORE THE HEARING
A. CONCURRENCE
If the request for arbitration is not submitted jointly, contact non-moving party (generally the employer) and seek to establish whether they concur to proceed to arbitration. If you obtain concurrence, attempt to get a series of open dates from the employer at the same time, as well as finding out where the parties usually hold their arbitration hearings, and whether a court reporter will be necessary (Refer to subsection I, E, infra).
If the employer indicates that it will not concur, you should attempt to determine the reasons for non-concurrence. If the employer cites some procedural objection to arbitration, mention that procedural arbitrability is a threshold issue for the Arbitrator. If the employer cites a substantive ground for objecting, mention that it need only be arguably arbitrable, for it to be considered by an Arbitrator. Stress that concurrence does not waive these arguments, but merely places them before the Arbitrator. You should also explain that the likely result of non-concurrence is a ULP or prohibited practice complaint.
If concurrence is not obtained, note the name of the person you spoke with and the date on which you spoke with them, as well as the reasons, if any, for non-concurrence. Put the file into word processing and a letter along with the following lines:
On January 1, 1983, I spoke with Mr. John Doe, representing Apex County, and attempted to obtain concurrence in your request for grievance arbitration. Mr. Doe indicated that the employer would not concur in the request, stating that (give the specific reason for non-concurrence). It is the Commission's policy not to proceed with requests for arbitration unless both parties concur. Therefore, the Commission will be refunding the $400.00 filing fee soon.
If you have any questions regarding this matter, please feel free to contact the undersigned at 608-243-2424.
Very truly yours,
John Smith
Arbitrator
If concurrence is obtained, work out the scheduling with the parties and put the file into word processing with a scheduling letter. Be sure to indicate on the word processing service request that a letter designating you as the Arbitrator should also be sent to the parties. If a room is to be reserved, arrangements should be made by the parties. Also indicate whether a second paragraph relating to court reporters should be included in the scheduling letter. See subsection C, infra, for possible disclosure requirements in the scheduling letter. Make sure that you request a calendar entry be made.
If you have arranged with the parties to hold an expedited hearing in the matter, and do not have time to have a case file made up, be sure to have the letter designating you as the Arbitrator run off so that you may present it to the parties at the hearing.
B. REVIEWING THE GRIEVANCE PROCEDURE
Prior to scheduling the case, the Arbitrator should review the provisions of the grievance procedure. Some agreements are quite specific on the structure of the hearing, and the nature of the Arbitrator. Two things to look for, are:
1. Tripartite panels - Some agreements provide that the Arbitrator will serve as Chair of an Arbitration Panel composed of the neutral and one or more nominee of each party. Quite often a request will come through for a staff member to serve as the sole Arbitrator when the labor agreement calls for a panel structure. The Arbitrator should inquire while scheduling the case whether the parties have agreed to waive the provision. The provisions of the grievance procedure are jurisdictional, and the sole Arbitrator may not proceed unless the parties waive the requirement of a panel.
If there is nothing to warn the Arbitrator of the issue and it comes to his/her attention while reading the grievance procedure at the hearing, the question should be raised at that time. If there is a dispute between the parties as to the meaning of the provision, or whether it is applicable to the particular case (and assuming that the language is in some way ambiguous on the point), one possible solution is to have the issue submitted to the Arbitrator as a preliminary question. If the parties agree to this means of proceeding, they should settle on their nominees before any hearing is held on the substantive grievance. Section 788.06, Wis. Stats. requires that each member of the arbitration panel attend the hearing. Thus, the presence of the nominees will be important in the event the staff arbitrator rules that the panel requirement is effective in a case. If one party nominates as a member of the panel someone who is absent from the proceeding, the parties must agree in writing to allow that absent person serve as a member of the panel.
2. Time limits on the issuance of the Arbitrator's award - Many agreements provide that the Arbitrator must issue the award within thirty days of the matter being submitted for decision. It is within the individual discretion of the staff member whether they wish to seek a waiver of this requirement. If the staff Arbitrator's writing schedule of caseload is such that he/she does not feel comfortable with a thirty-day limitation, the Arbitrator should notify the parties that the hearing will not proceed absent a waiver. If the parties are unwilling to accept an open-ended waiver of the time limits, the Arbitrator may suggest a sixty- or ninety-day time limit on the issuance of the award. This provides the parties with some assurance of an award within a reasonable time, while allowing the Arbitrator the necessary flexibility in scheduling his/her workload.
The Arbitrator should further make himself/herself aware of any other peculiarities within the clause, such as a limitation on backpay, a requirement for a bifurcated hearing on arbitrability, etc.
C. DISCLOSURES REQUIRED BY LAW
Section 788.10(1), Stats., sets forth the grounds for vacating an Arbitrator's Award:
(1) In either of the following cases the court in and for the county wherein the award was made must make an order vacating the award upon the application of any party to the arbitration:
(a) Where the award was procured by corruption, fraud or undue means;
(b) Where there was evident partiality or corruption on the part of the arbitrators, or either of them;
(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced;
(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
While all these criteria must be borne in mind by staff members conducting themselves as Arbitrators, the most likely to arise is subsection (b), "evident partiality." This is because of the Supreme Court's decision in Richco Structures v. Parkside Village, Inc., 82 Wis.2d 547 (1978), defining "evident partiality" to include not only an interest in the outcome of the proceedings, but any undisclosed relationship with the case or the parties to the case which might reasonably raise a question as to his/her neutrality. As the following excerpts indicate, the standard of disclosure required by the Court is very stringent.
In order to further the intent of the legislature, the expectation of the parties, and the parties opportunity to make reasonable assessment of an arbitrator's ability, we hold that the neutral arbitrator must disclose at the outset the relationships or transactions he or she has had with the parties or with the representatives of the parties to the arbitration proceeding. The neutral arbitrator must also disclose any facts which might indicate to a reasonable person that the Arbitrator has or might reasonably be supposed to have an interest in the outcome of the arbitration, or which may reasonably support an inference of or the appearance of the existence of bias, prejudice, partiality, or the absence of impartiality. (footnote omitted) Thus we construe "evident partiality" to include proof of a neutral arbitrator's failure to disclose these facts and relationships. Id, pp. 558-559 (emphasis added)
. . .
We do not intend to require an arbitrator to reveal every facet of his or her life. Nevertheless, the burden falls on the arbitrator to search his or her memory and records to make disclosure, erring on the side of more rather than less disclosure.
. . .
When there is nondisclosure at the outset of arbitration, the test for vacatur on the ground of evident partiality is whether the reasonable person, as a party to the arbitration proceeding, upon being advised of the undisclosed matters, would have such doubts regarding the prospective arbitrator's impartiality that he or she would investigate further, would demand that the arbitration be conducted on terms which would provide checks on the arbitrator's exercise of discretion, or would take other protective measures to assure an impartial arbitration and award. Id at 562 (emphasis added)
It is safe to say that the information which you are required to disclose in order to comply with the Richco Standard goes well beyond simply those relationships which might cause you to recuse yourself. It appears that a regular social relationship with one of the attorneys or representatives must be disclosed, even though there may be no real doubt as to your ability to render an impartial decision in a case involving that individual. If in your judgment such disclosure is warranted, it should be made in the scheduling letter. If you have a relationship with an organization such as a labor union or management law firm which might require regular disclosure, you can have a special scheduling form letter including the disclosure put onto the word processing system.
The following is a sample of the format for disclosure utilized by some staff members:
The parties may have an interest in knowing of the following relationships. I was previously employed as a business agent for the Roadsters Union in the state of Maine for two years (1977‑79). Furthermore, I am acquainted socially with Mr. Smith, who is serving as the Employer's attorney in this matter. In my experience, neither of these relationships bears on my ability to render an impartial decision and I make this disclosure purely for your information. Please contact me if you have any questions.
D. SUBPOENAS
Under Sec. 788.06, Wis. Stats., a party may request that the Arbitrator issue a subpoena or may request blank forms from the Arbitrator for issuing a subpoena in the representative's name. The individual requesting the subpoena is responsible for serving it and for any fees connected with the subpoena. Section 788.06, Wis. Stats. provides that a failure to appear in response to an Arbitrator's subpoena may lead to a court order enforcing the subpoena issued by a court in the county in which the Arbitrator is sitting. The action to enforce the subpoena should be undertaken by the party who requested the subpoena, even though the petition for enforcement may have to be signed by the Arbitrator.
There are essentially two approaches to the issuance of subpoenas in the Arbitrator's name. The first approach is fairly restrictive. Names should be listed on subpoenas and should be listed on the copy of the letter occupying the issuance of the subpoena. That letter should be copied to the other party to prevent surprise and avoid the appearance of ex parte contacts. This point of view holds that a surprise confrontation at the arbitration hearing is damaging to the parties' ongoing relationship. An inquiry should be made as to the relevancy of documents to avoid fishing expeditions and the disruption of the other party's preparation. Reasonable copying fees should be allowed.
The second point of view holds that such close supervision is inappropriate before the hearing. The parties should be allowed to prepare and present their case in whatever manner they wish. The Arbitrator will supply the number of requested subpoenas, without the names appearing, up to a reasonable amount. This number is in the judgment of the Arbitrator. If the party is requesting what the Arbitrator views as an unreasonable number of subpoenas, an inquiry is made as to the necessity of the subpoenas. The cover letter accompanying the subpoenas will list the number of subpoenas but will not indicate the names of the parties being summoned. A copy of this letter will be sent to opposing counsel.
Whichever point of view an Arbitrator adheres to, you should be mindful of the fact that a subpoena for documents within a day or two of the hearing may be disruptive of the other party's preparation time, and could lead to a request for a postponement of the hearing. The Arbitrator should also be sensitive to the operational needs of an Employer in issuing subpoenas. An attempt should be made to persuade the party requesting the subpoenas to specify the time at which the persons should appear so that half of the work force isn't tied up for the day waiting to testify.
E. COURT REPORTER
Whether a court reporter will be used is a matter that must be determined by the parties. The Commission will not provide a court reporter for arbitration hearings. There are some cases involving credibility determination or complex factual situations which convince you that it's desirable to use a court reporter. Many parties are sensitive to the perceived needs of the Arbitrator and will agree to a court reporter if a preference is indicated. However, although an Arbitrator may indicate his/her preference for a court reporter, the parties should clearly be left with the understanding that the decision is theirs to make. Some collective bargaining agreements, of course, allow the Arbitrator to demand a court reporter and obligate the parties to share the expense.
Where the agreement does not provide for the sharing of costs if a court reporter is used, the problem of one party paying the entire cost for the Arbitrator's transcript will arise. The question is whether the Arbitrator should accept a transcript under such circumstances. There are essentially three approaches:
1. The Arbitrator should refuse the transcript on the grounds that it might lead to a taint of obligation toward the parties supplying it and puts the other party at a perceived disadvantage.
2. The Arbitrator should accept the copy of the transcript on the theory that an accurate record 1 benefits both parties by allowing better analysis by the Arbitrator.
3. The Arbitrator should accept a copy only on the understanding that the party not ordering a transcript should have limited access to the Arbitrator's copy. No copies of the transcript may be made, but the party who has not ordered a transcript may come to the Arbitrator's office and read it for the purposes of preparing a brief.
The best alternative is to work it out on the phone with the party who will not be ordering a transcript while scheduling the case. This is not really a separate approach but a means of allaying suspicions and avoiding conflict at the hearing.
1/ Code of Ethics of NAA, AAA, FMCS provide:
B. Transcripts or Recordings
1. Mutual agreement of the parties as to use or non-use of a transcript must be respected by the arbitrators.
a. A transcript is the official record of a hearing only when both parties agree to a transcript or an applicable law or regulation so provides.
b. An arbitrator may seek to persuade the parties to avoid use of a transcript, or to use a transcript if the nature of the case appears to require one. However, if an arbitrator intends to make his or her appointment to a case contingent on mutual agreement to a transcript, that requirement must be made known to both parties prior to appointment.
It should be noted that Section 788, Wis. Stats., governs grievance arbitration proceedings in Wisconsin but is silent with respect to records. Consequently, Code of Ethics controls.
DATE: January 5, 1988
TO: Commission Staff
FROM: Peter G. Davis
SUBJECT: Transcript Policy--Staff Arbitrators
As you are aware, issues involving use of transcripts in grievance arbitration proceedings are rare and are almost always capable of being resolved in a manner which is acceptable to the staff member and the parties. However, to resolve any lingering uncertainties as to the transcript policy which staff arbitrators are to follow, please be advised that:
1. A staff arbitrator does not have the option of making his or her willingness to serve in a case contingent upon the parties’ agreement that a transcript will be the official record of the hearing.
2. A transcript will not be the official record of the hearing unless both parties agree to same. Thus, absent agreement, a transcript is not the official record of the hearing even if a party is willing to assume the cost of providing a transcript to both parties and the arbitrator.
3. A party cannot be required to order a transcript or to contribute to the cost of the arbitrator's transcript if it does not agree that the transcript is the official record of the hearing.
4. A party can, as a matter of its convenience and expense, elect to have a transcript of the hearing prepared even if the transcript is not the official record. The Commission does not recommend that staff arbitrators accept a copy of a transcript in such circumstances because of the potential for issues to arise as to whether the arbitrator improperly used the transcript when preparing a decision. If the staff arbitrator elects to accept a copy of the transcript, and if the party ordering the transcript will not provide a copy to the other party, the staff arbitrator shall advise said party that he or she can have access to the arbitrator's copy of the transcript either in the Commission's offices or, if said party so desires, in the requesting party's offices if the requesting party is willing to pay mailing costs. In any case where a transcript is prepared but the transcript is not the official record of the hearing, the staff arbitrator should confirm "on the record" that the transcript is not the official record.
PGD/dtm
E0912E.05
II. BEFORE GOING ON THE RECORD AT THE HEARING
The following material addresses several issues that may be presented at the hearing. They are not necessarily presented here in the order that they may arise, and it is expected that the staff member will read this section before arriving at the hearing.
While arbitration is a relatively informal process, important rights are being determined and the appearance of the impartiality is as important as the genuine impartiality you bring to the matter. It can be quite disheartening for a grievant or an employer to see the Arbitrator greet opposing counsel by his first name and then introduce himself/herself for the first time to that party's counsel. The Arbitrator should introduce himself/herself to everyone present and thereafter refer to people as Mr. or Mrs. References to previous cases or other shows of familiarity with one side or the other should be avoided.
B. FORMALIZING PRIOR UNDERSTANDINGS
Any understandings reached with the parties regarding such issues as transcripts, decisional time limits or the use of an arbitration panel should be reviewed and affirmed before going on the record. If a dispute arises, review what your understanding of the arrangement was and give the parties an opportunity to work out a new arrangement. The degree to which the Arbitrator should attempt to enforce prior understandings is a matter of individual discretion, but care should be taken to avoid the appearance of partiality (i.e. don't berate one of the parties).
An effort should be made to stipulate the issue to be decided in the award. Although the parties are primarily responsible for determining the issue, the Arbitrator should make an effort to ensure that it is in some way tied to the collective bargaining agreement. If possible, the specific sections of the agreement alleged to be pertinent should be stated in the issue. The second portion of the stipulated issue should always be a statement to the effect: "If so, what is the appropriate remedy?" If the parties are unable to stipulate to an issue prior to the commencement of the hearing, it may be that the Arbitrator will have to frame the issue in his/her award. If that is the intention of the parties, it should be stated on the record. The fact that the parties are unable to stipulate to an issue prior to the hearing, however, does not necessarily mean that the Arbitrator must frame the issue. It may be that the evidence presented during the hearing will so clarify the issue that the parties will be able to stipulate to the issue during the hearing or at the close of the evidence.
At some preliminary stage prior to going on the record, the Arbitrator may want to ask about the parties' interest in discussing settlement. Naturally there are many different approaches to this subject. Some may feel most comfortable just having the parties step out in the hall, without the involvement of the Arbitrator. The parties themselves may make it clear that they do not wish the Arbitrator to be directly involved in settlement discussions. In the second instance, of course, the Arbitrator should not force his/her mediation skills on unwilling parties. Others may be comfortable with a more active role, essentially asking each party "what will it take to settle this case?" The only firm "rule" regarding settlement efforts is not to delve into ex parte discussions of the merits and not to lean so heavily on one party or the other that you lose your appearance of impartiality.
E. EXHIBITS
The Arbitrator should make an effort to identify those documents which may be submitted as joint exhibits. Typically, the collective bargaining agreement, the grievance, the answer and any other documents relating specifically to the grievance may be submitted as joint exhibits. Often the parties will offer a packed as a joint exhibit containing the grievance, the answer, and the subsequent correspondence of the parties. While this may be staples together and offered as one exhibit, it is better practice to identify each document individually as an exhibit. When all the joint exhibits have been marked, the Arbitrator may wish to inquire whether there are any party exhibits which can be marked before the hearing. The Arbitrator
One thing to look for on joint exhibits is whether the collective bargaining agreement being offered is the same agreement which was in effect at the time of the grievance. If it is not, either get a stipulation from the parties that the pertinent language is unchanged or have them produce a copy of the agreement in effect at the time of the grievance.
F. ESTABLISHING THE ORDER OF PROCEEDING
Generally, the grieving party has the burden of going forward. The usual exception to this rule is disciplinary cases where the employer is required to establish the case is favor of the disciplinary action. The only problem that is likely to come up regarding the order of proceeding is whether an employer's action was disciplinary in nature. If the union contends that the action taken was disciplinary (a demotion or poor evaluation, for example), and the employer denies that the action was disciplinary, the Arbitrator may be required to resolve the issue of who has the burden of going forward. It is probably most efficient to have the employer present its evidence first in such a case. This does not relieve the union of any burden it may bear in a case, but merely reflects the need for an orderly and logical presentation of the facts.
Wherever there is a dispute over the order of proceeding, the Arbitrator should keep in mind that the orderly presentation of the facts should be the guiding principle. Rule 26 of the American Arbitration Association provides, in part, that:
The Arbitrator may, in his discretion, vary the normal procedure under which the initiating party first presents his claim, but in any case, shall afford full and equal opportunity to all parties for presentation of relevant proofs.
The Arbitrator should also keep in mind, however, that varying the order of proceeding may tend to upset the relationship of the parties and the understandings that they have built up over a series of cases.
Efforts to stipulate to certain facts may result in a narrowing of the dispute, avoidance of unnecessary testimony and clarifying the issue before the Arbitrator. Such items as seniority dates, employment histories, the sequencing of ancillary events, etc. can often be stipulated. If the issue before the Arbitrator is a narrow question of contract interpretation, it may be that all the pertinent facts can be stipulated. Caution should be exercised, however, in relying solely on stipulations. It is often difficult for an Arbitrator to fully appreciate the texture and context of a case if forced to rely exclusively on a series of factual stipulations. Moreover, the true significance of a particular fact may not be clear to the parties or the Arbitrator until the hearing is over and the process of written argument and decision is begun. While these facts may be developed through testimony, it is possible that the parties will not think to stipulate to them.
If the parties are going to stipulate facts, the Arbitrator should designate one of the advocates as the person responsible for either writing out the stipulation or reading the stipulations into the record.
H. PARTICIPATION IN THE HEARING
1. Requests for sequestration
In cases where credibility is likely to be an issue, one or both of the parties may request that the witnesses be sequestered. Generally, an Arbitrator will grant the request for sequestration of witnesses but will advise the parties that each advocate is entitled to have one person present to assist in the presentation of the case. This is true even when the person chosen will be a witness. In a particular case, such as one involving technical matters generally beyond the advocates' range of experience, you may be persuaded that more than one individual is required to aid in the presentation. In addition to the witness, if any, selected to aid in the presentation of the case, the grievant is entitled to remain. Allowing the grievant to remain in the room, however, may provide support for the employer's desire to call the grievant adversely in a discipline case.
Before ordering the sequestration of witnesses, the Arbitrator should give some thought to the question of what actions he/she will take to enforce the sequestration. Does the Arbitrator wish to draw an adverse inference from the fact that a witness discussed his/her testimony with other witnesses, or listened to another witness' recitation of the testimony they had given? If so, the Arbitrator should explicitly advise the parties of this during discussions over sequestration before the hearing.
If the Arbitrator decides to order sequestration, the witnesses should be cautioned as they conclude their testimony and/or as there is a break in the proceedings while they are on the stand, that they are not to discuss their testimony with any other person, nor are they to discuss any other person's testimony. They should be further advised that they should report any attempts by another person to discuss testimony to the Arbitrator.
2. The grievant has a personal attorney present
If the grievant wishes to have his/her personal attorney participate in the hearing and the union does not object, the Arbitrator generally will not refuse to allow it (subject to the restrictions set out below for multiple advocates). If the union does object to the participation of the private attorney, and the matter cannot be worked out between the parties, the Arbitrator must rule on the issue. The majority view seems to be that the union is entitled to determine who will represent their interests in the arbitration hearing. This derives from the fact that the agreement authorizing arbitration is between the union and the employer, as well as the general principle that the union owns the grievance once it has been submitted to arbitration. This makes sense, because the outcome of the arbitration may be res judicata over identical matters between the same parties, and because the Arbitrator's award may interpret the contract in such a way as to substantially affect the rights of other unit members. Thus, the union's interest in the litigation of the grievance extends beyond its impact on the particular grievant. Arbitrator Arnold Zack is of the opinion that the personal attorney should be excluded, but that the grievant should be given an opportunity to secure a temporary restraining order before the hearing can proceed.
3. Multiple lawyers or advocates
Before the start of the hearing, the Arbitrator should determine who will be representing each party. If one party has more than one attorney or advocate present, the Arbitrator should make it clear that only one advocate per side will be allowed to question each witness. The advocates may trade off on a witness by witness basis, but there will be no "tag team" questioning.
4. Press or the public wishes to be present for the hearing
If a person not associated with either the employer or the union demands to be present for the hearing, and one of the party’s objects, the Arbitrator should attempt first to work out an arrangement acceptable to all the parties. If both parties object to the third person's presence, the Arbitrator has little choice but to exclude that person. Arbitration is a private proceeding governed by the agreement of the parties, rather than a hearing held pursuant to a statute such as unfair labor practices or elections. Therefore, unless that parties agree to an open proceeding, the hearing should be closed.
Where the employer is a public body, the argument may be raised that the open meetings law applies. Section 19.82, Wis. Stats. provides that:
As used in this Subchapter:
(1) "Governmental body" means a state or local agency, board, commission, committee, council, department or public body corpora-ate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation; or a formally constituted sub-unit of any of the foregoing, but excludes any such body or committee or sub-unit of such body which is formed for or meeting for the purpose of collective bargaining under Subchapter IV or V of Chapter III.
(2) "Meeting" means the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. . .
An Opinion of the Attorney General dated November 28, 1978 interpreted this provision to exempt meetings of municipal common councils where a labor dispute grievance under a procedure established under a signed contract was heard, reasoning that the council was engaged in collective bargaining within the meaning of MERA and was therefore, for that purpose, not a governmental body within the meaning of the open meetings law. The arbitration hearing, being an extension of the contractual grievance procedure, would seem to be similarly an exercise in collective bargaining. Further, if the case involves dismissal, demotion, discipline, promotion, compensation, or performance evaluation of a public employee, it may be exempt under Sec. 19.85, Wis. Stats. Under this theory, however, the arbitration hearing would still be a meeting within the meaning of the law, even though it could be held in a closed session.
I. CONFIDENTIAL INFORMATION
The Arbitrator should be aware that there is some information (confidential medical records in nursing home cases, for example), which may not be revealed even by the State of Wisconsin, pursuant to separate sections of the statutes. The Arbitrator should be cautious in his treatment of any situation in which possibly privileged information may be revealed into the record and should inquire of the parties whether they are aware of any statutory prohibition on the revelation of such records.
Where the press has requested an opportunity to be present, the Arbitrator should make an effort to accommodate them, as far as possible. Providing an opportunity for phots before the hearing, or having the parties agree to issue a fairly neutral statement summarizing the procedural timelines (dates for submission of briefs, etc.) afterwards may satisfy the reporters' need for a story without actually allowing them to remain in the hearing room. Any unnecessary confrontation with the press should be avoided, while remaining faithful to your obligation to the parties.
J. USE OF TAPE RECORDERS BY ONE PARTY
If a court reporter is employed to transcribe the hearing, there will be little dispute as to the official record. Where no reporter is used, it may be that one party will wish to tape record the hearing. If the other party does not object, or if the party wishing to tape the hearing offers to have copies of the tape made for the other party, this should not present a problem, so long as the Arbitrator makes it clear that the tape is not a part of the official record. The only concern might be a chilling effect on the witnesses from having to talk on a tape, particularly if the party wishes to use microphones and an elaborate system, rather than a cassette recorder with a built-in mike. The Arbitrator should make an independent judgment based upon the need for a controlled and orderly hearing. An important factor in this judgment will be whether there are credibility issues. This will cut both ways, however, since the witnesses are more likely to be nervous in that case, but there is an arguably greater need for an accurate record of testimony. Where there is a dispute as to the propriety of using a tape, and the parties have no practice to guide the Arbitrator, the parties should be allowed to make arguments on the subject and the Arbitrator should make a ruling. It is within the discretion of the Arbitrator to decide whether, and under what conditions, a tape recorder may be used. No matter what the ultimate decision, the Arbitrator should clarify for the parties what does and does not constitute part of the official record before starting the hearing.
K. SERVING AS CHAIR OF A TRI-PARTITE PANEL
If the grievance procedure calls for the use of tri-partite panel and the parties are unwilling to waive the requirement, the Arbitrator should make arrangements with the other panel members regarding the conduct of the hearing and the procedure for the issuance of decisions. It is best to set out your intentions in the scheduling letter, rather than waiting until the day of the hearing. This avoids delays and puts you on notice of any likely procedural disputes before the hearing. An example of this approach is a paragraph in the scheduling letter as follows:
It is my practice when chairing tri-partite panels to make all procedural and evidentiary rulings unilaterally, rather than in consultation with the party arbitrators. If the parties have a contrary practice, or any objection to this manner of proceeding, please notify me in writing at least one week prior to the date of the hearing.
The Arbitrator should keep in mind that the Richco disclosure requirements apply with equal force to the Arbitrator's relationship with a member of the arbitration panel as they do to a relationship with one of the advocates. Any such relationship should be disclosed in the scheduling letter, in the same manner as set forth in Section I(B), supra.
Arrangements concerning the issuance of a panel decision should be made at the close of the hearing. Generally, the chair will write up a "draft" decision--a decision in final form but unsigned--and circulate to the panel members, without first consulting the panel members. Signature lines allowing for both party arbitrators to dissent or concur will be appended to the decision. Once these are returned, the decision will be prepared for signature, with the party arbitrators' signatures simply typed in on the appropriate lines, and the signed drafts placed in the file.
If a member of the panel requests a conference, all panel members should be present. The conference can be held at the Commission offices or by conference call. Absent some provision in the agreement, there is no absolute right to a conference, although appearances probably demand that a reasonable request not be denied.
Where the members of the panel wish to write separately, a deadline for the submission of the separate opinion should be established. Since this will almost certainly be a dissent, the signed majority decision can be issued without the signature of the dissenting member and is valid. Thus, the majority opinion need not be held up by a late dissenting opinion. This is not to suggest, however, that a reasonable request for an extension of time from a dissenter should be ignored.
III. ON THE RECORD
A. ARBITRATOR'S OPENING STATEMENT
The Arbitrator's opening statement is to identify the parties, lay down the procedural ground rules, identify the stipulations and state the issue. While the formality of the opening statement may vary according to whether there is a court reporter present, the statement should be made in every case. The statement puts the parties on notice as to the nature of the record, formalizes the prior understandings relating to exhibits and issues, and forces a commitment from the parties as to who is going to be presenting the case for each side. A sample opening statement is reproduced below.
B. SAMPLE ARBITRATOR'S OPENING STATEMENT
"The hearing will be in order ' This is a hearing in the matter of the arbitration of a dispute between [party a] and [party b] Case [###] Number [#####] MA-{#####] The Arbitrator is [arbitrator's name] and the court reporter is [reporter's name]. Any request to go off the record should be directed to the Arbitrator, rather than the court reporter.) - or - (As there is no court reporter present, the exhibits and stipulations , as well as the recollections of the Arbitrator will constitute the record of this proceeding. Although the Arbitrator may use written notes and recordings to augment his/her recollections, neither the notes nor the tapes will be part of the official record, and copies of such notes and/or tapes will not be made available to the parties.)
"Will counsel please state their appeances for the record, including their mailing addresses For the Union? And for the Employer?
"In discussions had prior to going on the record, the parties were able to arrive at certain stipulations:
(a. Waiver) Initially the parties have agreed to waive any contractual time limits on the issuance of the Arbitrator's award
(b. Issue) The parties have stipulated that the following is the issue to be determined by the Arbitrator:
or the parties have stipulated that the issue is to be framed by the Arbitrator in the award. i
(c. Joint Exhibits) Further, the parties have offered certain joint exhibits for receipt into the record: . . .
Do the parties agree that those are the stipulations? Is there any objection to the receipt of the joint exhibits into the record? Hearing no objection, the joint exhibits are received.
(d. Factual Stipulation) Mr./Ms. [name], I believe that you have some stipulated facts that you would like to read into the record at this time.
Does the [other party] agree that those facts may be stipulated? The stipulation will be made part of the record."
C. THE OFFICIAL RECORD
If a court reporter is utilized, there will generally be little dispute as to what constitutes the official record. The transcript and exhibits will form the evidentiary record. As noted above, this should be made clear to the parties in the opening statement.
If a court reporter is not present, the exhibits and recollections of the Arbitrator form the record. It should be made clear to the parties that any notes or recordings made by the Arbitrator during the course of the hearing are solely for the purpose of supplementing his/her recollection and do not form any part of the record. Otherwise the Arbitrator may be faced with a request by one or both of the parties for copies of the notes or recordings. This is not usually desirable, inasmuch as the Arbitrator's notes may contain impressions of a witness's credibility or the strengths and weakness of particular arguments.
D. PARTIES' OPENING STATEMENTS
An opening statement setting forth a party's theory and what they believe the facts will show is generally quite helpful to an Arbitrator . It allows the Arbitrator to immediately grasp the issue and will be helpful in judging the relevancy of evidence submitted in the course of the hearing. An opening statement also serves to make the parties commit to a particular theory of the case at the outset of the hearing, thereby allowing a more orderly presentation and avoiding the need for the losing party to over litigate the case simply to protect themselves. Arbitrator Arnold Zack would go so far as to overrule the objections of a party who fails to make an opening statement on the grounds that he does not fully understand the party's case. An Arbitrator adopting such an approach should make it clear at the outset that such rulings may come from a failure to make an opening statement.
The party with the burden of going forward generally presents their opening statement first. The other party may either make their opening at the outset of the hearing, immediately after the first statement, or may reserve opening until they begin their case. From the standpoint of clarifying issues and narrowing the scope of the hearing, it is preferable to have both parties make their statements at the outset.
Some parties prefer to present the Arbitrator, with a written copy of their opening statement, as well as presenting it verbally. This is perfectly acceptable and, in fact, generally desirable. Reducing the opening statement to writing forces the parties to think out their case in advance and thereby narrow the issues. Whether written or verbal, the opening statement is not evidence or proof of any fact.
E. PROCEDURAL CONSIDERATIONS DURING THE HEARING
Difficult issues may arise during the hearing, such as an objection over a proposed plant tour, an attempt to call the grievant adversely, a request to expand the scope or amend the substance of the grievance, or the question of how to deal with difficult counsel. Most of these issues are treated in such works as Elkouri. Fairweather , and Sinicroppi & Hill. This introductory document is not intended as a replacement for those texts and will not attempt to address these myriad issues. It is expected that the staff member will have studied those resource materials prior to conducting an arbitration hearing. If a problem comes up for which there is no ready solution, you should not hesitate to call the office and ask for advice. It may seem embarrassing to you at the time, but it is far less so than making a critical mistake in a hearing.
Generally, at the close of the hearing the Arbitrator will go off the record to establish a briefing schedule. Often the parties will later request an extension of time, or just mutually agree to an extension and so inform the Arbitrator. A reasonable request for an extension should not be denied and mutual agreement to extend should be honored. These extensions may, however, cause problems with the Arbitrator's writing schedule. The parties should be made aware of this, on the record. Whatever approach you intend to take to late briefs should also be made explicit on the record, to prevent any arguments later
IV. AWARDS
An Arbitrator should not solicit a request from the parties make a bench award. The parties are entitled to a fully reasoned written decision. If, however, the parties request a bench decision, it is within the discretion of the Arbitrator to agree to render a verbal decision. The Arbitrator is not obliged to give a bench decision simply because the parties ask for one. Often a case may appear to be "open and shut" before its complexities are revealed by the process of writing. If the Arbitrator determines to render a bench decision, he/she is perfectly entitled to request an hour or so to make notes and organize the decision. The Arbitrator should keep in mind that Sec. 788 requires an Arbitrator's award to be in writing in order to be enforceable. Thus, any bench decision should be followed up with a written summary award to the parties.
It may be that the parties or the Arbitrator do not want a bench decision but want an expedited award. An expedited award is one which excludes a statement of the factual background and positions of parties and states the resolution of the issue in the form of a brief rationale and statement of Award. Generally, these awards are issued in letter form, consisting of a very few pages. As with Bench Awards, supra, neither the parties nor the Arbitrator are obligated to agree to an expedited award. Prior to agreeing to issue such an award, the Arbitrator should obtain a written request from the parties and a copy of the request should be appended to the award. This will avoid any questions after the issuance of the award about whether the Arbitrator fully discharged his/her duties to the parties.
An interim award is one which does completely respond to all the issues submitted but is issued in answer to a preliminary question and/or pending the submission of additional evidence or argument. Unless the parties specifically request the issuance of an interim award (for example, a ruling on arbitrability before the submission of evidence or arguments on the merits; a ruling on the merits prior to the submission of evidence or arguments on damages), there is some question as to whether the Arbitrator has inherent authority to issue such an award. If your analysis of the case at the time of hearing suggests that a "bifurcated" decision is required, the question should be posed to the parties at that time and consent gained. There is no conceptual problem about the notion of an interim opinion as such. The difficulty with interim awards comes with the attempt to enforce an award that is not final. Section 788.10(1)d, Stats., allows vacation of an award which is not "mutual, final and definite." Although not directly on point, the cited statutory section suggests the characteristics of an enforceable award, and casts some question on whether an interim award is, by itself, enforceable. The safest practice is to obtain express consent of the parties, if possible.
Oftentimes staff Arbitrators will retain jurisdiction after issuance of an award, generally for the purpose of clarifying the remedy. This may be at the request of the parties or on the Arbitrator's own motion. There are differing points of view on whether the Arbitrator has the authority to retain jurisdiction after issuance of an award. One point of view holds that the Arbitrator's jurisdiction terminates automatically upon fulfilling his/her obligation to respond fully to the issues presented, and that he/she is then functus officio. The opposing view is that the award is not final if jurisdiction is retained, and thus the Arbitrator is not functus officio. Whichever view one adopts, if a situation presents itself where jurisdiction is to be retained, the time period for retaining jurisdiction should be made specific, since the award cannot be taken into court for enforcement if the Arbitrator has not relinquished jurisdiction over the case.
This page is a public domain communication of the Wisconsin Employment Relations Commission. The URL of this page is {http://werc.wi.gov/grievance_arbitration_case_manual.htm}. Last modified on 14 AUG 1998. Comments, questions and suggestions.