Preparing for the Arbitration Hearing - Chapter 5 - Fundamentals of Labor Arbitration

Rocco M. Scanza is an attorney, arbitrator and mediator of labor and employment disputes. He is also the executive director of Cornell University's Scheinman Institute on Conflict Resolution, where he teaches courses in workplace alternative dispute resolution. Mr. Scanza was formerly a national vice president at the American Arbitration Association. He graduated from Queens College in New York City and Loyola Law School of Los Angeles. He lives and works in Ithaca, N.Y.

Jay E. Grenig is a professor of law at Marquette University Law School. He has served as an arbitrator or mediator in over 2,000 labor and employment disputes. A member of the National Academy of Arbitrators, the American Law Institute, and the Order of the Coif, Mr. Grenig is also a fellow of the College of Labor and Employment Lawyers. He formerly chaired the Labor and Employment Law Section of the Association of American Law Schools and served as a consultant to the National Commission on Employment Policy. He has written or co-written numerous books and articles.

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Originally from Fundamentals of Labor Arbitration

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5:01 INTRODUCTION

Thorough preparation for the arbitration hearing is absolutely essential to successful advocacy. No amount of genius or cunning can substitute for preparation. Preparation means you become an expert on your case. You develop theories of the case, test them against the facts, and refine them until everything about the case fits together in a logical manner. As part of the preparation it is important for each party to consider the approach to take in the case. What will be the theory of the case? What must be proved under that theory? Developing a theory of the case is a continuing process, one that is affected and changed by new facts, further research, and thoughtful analysis. It is essential to be flexible. Tentative theories may be rejected or modified. During case preparation, the opposing party should not be neglected. Its case must be analyzed to anticipate where disputes may arise and prepare to respond. Analyzing the other party’s case helps you see the strengths and weaknesses of your case.

5:02 REVIEWING THE ARBITRATION CLAUSE

Reviewing the arbitration clause in the collective bargaining agreement is a vital part of preparation for the hearing. During this preparation, keep the following questions in mind:

• Is the dispute covered by the arbitration clause? Does the contract limit the type of dispute that can be appealed to arbitration? Could any of these limitations apply to this dispute? If so, the employer could argue that the dispute is not “substantively arbitrable.” Substantive arbitrability of a dispute refers to whether the parties have agreed to submit an issue to arbitration. That question is normally resolved by the courts, but an arbitrator may rule on this question if the labor agreement clearly grants the arbitrator such authority or the parties agree after the dispute arises to have the arbitrator resolve arbitrability issues.

Table of Contents:

5:01 Introduction
5:02 Reviewing the Arbitration Clause
5:03 Reviewing the Grievance Steps
5:04 Conducting an Investigation
5:05 Selecting and Evaluating Witnesses
5:06 Preparing Witnesses
5:07 Subpoenas