A Day in the Life of an Expedited Panel
What a quick grievance hearing provides
In January, I notified the appointing rosters (AAA, FMCS, California SMCS) and frequent appointers (private parties who select me regularly) that I will be taking a semi-sabbatical from June 1, 2024, until January 3, 2025. I am taking this break to travel, write, and focus on making practical changes that will keep my practice interesting, but I intend to continue doing expedited hearings during that time. Within minutes of sending out that notice, someone replied, “What’s an expedited hearing?”
Expedited hearings take a lot of different forms but they are intended to accelerate the time between moving a case to arbitration and the arbitrator’s decision. All expedited arbitrations are created by a contract. Some are in the CBA and some are in a side agreement. I thought I’d describe a few different expedited arbitrations that I’ve participated in over the years to give you a sense of the possibility that they offer for truly quick resolution of grievances.
My first expedited arbitration process grew between a major healthcare organization and a union which had struck their hospitals for long periods in the 1990s. While the parties were at loggerheads, grievances backed up. By the time the contracts were finally settled in 1997, there were literally hundreds of grievances to sort through. The union, the employer, and one arbitrator convened for weeks to go through them all, settle or withdraw what they could, and then create an aggressive arbitration calendar. They met twice a month and heard four cases each day. The cases were heard by a panel of one union rep and one employer rep and one arbitrator. Almost all the cases were disciplinary in nature.
I represented the union and each grievant would have a union rep to act as my client contact. The employer might have a couple of attorneys to each present one or two cases. We’d make opening statements and — this is key - the panel would accept the factual statements in the opening statements as true. If there were facts in dispute, we’d tell the panel what they were, and they’d hear a witness. It was usually the supervisor or the grievant. If we had any arguments we wanted to add, we could speak at the end, but usually we just rested, and the panel met to decide the case. We could get through four cases in a day by doing each of them in about 60-90 minutes, but many took less time or settled before we even presented them. Afterwards, the arbitrator would write up a one-page decision that provided basic information about what the panel decided and why. Those were usually sent to the parties within days.
As an arbitrator, I’ve served as the neutral on several panels that follow this format. Sometimes we do just one case in a day. I have one panel where we do one case per hour (eight cases in a day) and another we do one every half-hour! In reality, we don’t need to move that quickly because a grievant doesn’t show up, or the parties have settled it before the hearing day. In those two panels, we only hear certain kinds of cases: discipline up to 5-day suspension, attendance cases (including discharge), and drug test cases (including discharge). During COVID, we included cases involving people who refused to get vaccinated. I write a short decision for the cases that each get an hour, but for the half hour cases, I give a bench decision.
A bench decision means that I am the person who needs to tell the person what the panel’s decision is. And since the panel is me, the labor relations manager, and the union rep, the “panel’s” decision is really my decision. This means I sometimes need to tell someone that I’m upholding their termination (or suspension, or whatever) directly to their face. It can be a little nerve-wracking but I wrote a little script for myself the first couple of times. I figure that if the manager or union rep has to regularly deliver bad news, I can too.
I truly wish more parties did expedited arbitration. The process is excellent when there are lots of grievances, lots of locations, and enough trust to expect that the other side will act in good faith to get the matter presented quickly and honestly. Sometimes it takes a few times to work out of the wrinkles. I know of at least one place where the parties negotiated an expedited process for their many attendance cases in order to select newer arbitrators to figure out if they were good at it. During my sabbatical, I have approximately 4 days per month committed to expedited cases and it really feels like a great way to help the parties and still preserve my time off. What could you do with your extra time if your cases were expedited?