Arbitration has a distinct advantage over litigation in that the parties get a chance to select the person who will decide their case. The ability to select the decision-maker is one of the major advantages of arbitration.
In the opinion of this retired human resources practitioner, this step in the arbitration case preparation and presentation is as crucial to the case as is the quality of your evidence. The selection of the arbitrator is rooted in the parties’ collective bargaining agreement in the grievance article. This first step requires a great deal of time, effort and thought, as research into the person’s background may predict how he/she may rule.
Attributes to Look for in an Arbitrator
Regardless of the process, once a panel of arbitrators is received from the Federal Mediation and Conciliation Service (FMCS), a thorough research into each person’s experience, education, and decision-making is key. There is a wealth of information that can be gleaned from CyberFeds, Lexis-Nexis or West Law. At this step you are gathering intelligence. Read each person’s prior arbitral awards that are available through these legal databases as well as our old friend – Google. The resume of each candidate is helpful, but it is only a narrow vignette on the background of the person. Things to look for are:
- Has this arbitrator previously heard other cases similar to the one you are asking him/her to decide?
- Has this person previously served on any arbitration panels? If so, where, when, and what cases?
- Is this person familiar with federal employment rules and regulations?
- Is the person local, or are the parties prepared to pay travel costs over the person’s daily per diem?
- Is the person an attorney or a university professor who has taught labor relations?
- How old is the person? (This may sound prejudicial, but I once had an arbitrator who would fall asleep after lunch. I won’t say he was old, but his first job was a waiter at the Last Supper, and both sides had quite a task to keep him awake and focused in the afternoon.)
- Is the person compromised in any way? In other words, was he/she previously an officer of the union who has brought the complaint?
I would go as far as to suggest that in your negotiations, your grievance article should clearly stipulate that a former member/officer of the AFGE, NAGE, NTEU, etc., cannot be selected to hear a case for which their former union was a party to the dispute. There is nothing to preclude you from asking FMCS to withdraw the person referred, and to send you another arbitrator to consider.
The Importance of an Arbitrator’s Union Background
It was this last bullet for which the Navy failed miserably. Not only did they not request another name to be submitted, but they did not immediately eliminate this person once they went to the striking procedures in their contract.
The arbitrator who was selected spent more than 20 years as a senior AFGE officer, and this was an AFGE grievance. In my opinion, this is a huge conflict of interest. The French have an expression for such a conflict: “Oiseaux de la meme plume” – birds of the same feather. And, in my opinion, this was readily apparent in the way he conducted the hearing of the case: Department of the Navy, Jacksonville, NC and AFGE Local 2065, 73 FLRA 137.
In the August 15, 2022 issue of FEDSMILL.com, the author, whose opinions appear to reflect a union background, commented:
#1 – Here is an excerpt from the FLRA decision. Keep track of the dates we have underlined.
“On November 30, 2018, while the grievance was pending, the Agency notified the Union that the parties were at impasse over ground rules. The same day, the Agency stated that it would be implementing its last best offer on the ground rules on December 15. In response, the Union requested that the Agency delay implementation of its proposed ground rules, recognize the Union’s bargaining representative, and continue bargaining. The Agency refused, and, on December 21, it presented the Union with proposals in order to begin term-agreement negotiations. The Union filed a … grievance on January 4, 2019, alleging that the Agency violated the duty to bargain in good faith when it unilaterally implemented ground rules and initiated term negotiations without negotiated ground rules. The Agency denied the … grievance, and the Union invoked arbitration. On March 14, 2019, the Agency unilaterally implemented a new term agreement pursuant to the disputed ground rules. The contract required the Union to file its grievance “within [fifteen] days after the event giving rise to the grievance or within [fifteen] days after the [Union] reasonably should have known of the event giving rise to the grievance.”
No one should be surprised that the agency alleged the grievance was too late. After all, the agency notified it of its intent on November 30 and the union did not file a grievance until January 4. Luckily for the union this particular arbitrator held that the “grievance time frame begins to run not based upon the date the Agency gives notice of its intent but instead on the date . . . the Union knows the Agency has acted.” He found that was December 21. That could very easily have gone the other way, voiding the entire grievance. FLRA blessed this arbitrator’s conclusion writing, “The Agency fails to identify any contractual wording that either defines the term “grievable event” or conflicts with the Arbitrator’s interpretation or application of that term.
That last sentence is debatable as the parties’ agreement in Grievance Article 13, Section 12, states that: “If a dispute arises between the parties, either the President of the Union or the Commanding Officer (or their respective designee) may file a written grievance with the other party, provided such grievance is filed within 15 days after the event giving rise to the grievance, or within 15 days of the date the grieving party reasonably should have known of the event giving rise to the grievance.” The contract was admitted into the record and entered as part of the testimony.
The Navy committed another huge mistake in allowing the arbitrator to frame the issue to be decided.
Here again is an excerpt of FEDSMILL.com article.
“Here, because the parties did not stipulate the issues, the Arbitrator framed the relevant issues as: Did the Agency commit ULPs by initiating term negotiations without a negotiated groundrules agreement and unilaterally implementing its proposed ground rules? What is the appropriate remedy, if any? In resolving these issues, the Arbitrator found that the Agency committed bad-faith-bargaining ULPs, and the Arbitrator awarded a statusquoante remedy. The Agency does not argue that the formulated issues restricted the arbitrator’s remedial authority. Further, the remedy is directly responsive to the framed issue of an appropriate remedy for the Agency’s ULPs. Thus, the Agency’s argument provides no basis for finding that the Arbitrator lacked the authority to direct a return to the status quo ante. For the foregoing reasons, we deny the Agency’s exceeded-authority exception.
This arbitrator wrote the issue statement broadly enough to enable himself to impose a status quo ante order. NOT ALL ARBITRATORS WILL DO THAT AND A UNION-HOSTILE FLRA LIKE WE HAD UNDER PRESIDENT TRUMP WILL NOT GIVE ARBITRATORS THAT DISCRETION. Consequently, the far safer course would be for a union to include in the grievance a remedy statement such as, “The union requests all appropriate remedies be imposed, including an order to return to the status quo ante, voiding the imposed agreement and making the union as well as the employees whole for any harm done them by the violations.”
There is one last interesting event to note in this case. The Navy appealed the arbitrator’s decision to the FLRA in June 2020. Many arbitration appeals that were filed with the Authority long after this one were decided long before this decision was rendered.
In my 37 years of federal labor relations, I have never seen an appeal sit this long, more than two years. While my intent here is not to relitigate this case, however to this retiree there is something nefarious by Chairman Dubester in holding this decision until a new Authority was convened. The parties’ contract on when grievances are to be submitted is clear and unambiguous, and both the arbitrator and the Authority have ignored this language which is the cornerstone to this case. Is this now to be interpreted as the new standard where allegations of a continuous violation will be the benchmark for timeliness?
I am retired; good luck to all of you left to perform this vital task with the ever-changing winds. The arc of the pendulum is swinging wider and farther with each change of administrations. This is particularly true with the Authorities’ decisions. In the long run, this does not promote a healthy labor relations environment as each side is looking to skewer the other, and rancor becomes the norm as opposed to principal problem solving.
As a closing point for the readers of this article, study your collective bargaining agreement. The union is there to represent its bargaining unit employees. Look to see who is benefitting from this contract. Too often, the contract is self-serving to the union and its officers, not its members. Get a hold of your union’s annual financial reports from the Department of Labor (DOL). Inquire whether your council or local’s finances have been audited recently, and find out what DOL’s findings were. This is your union; be informed of how your dues are being spent!