After the Case is Submitted
What Happens Behind the Curtain
Once the hearing has concluded and the arguments have been made or the briefs have been sent, the matter is “submitted” to the arbitrator. The parties now wait for their decision. In most cases, you should expect to receive a decision within ninety days. Many arbitrators strive to complete a decision within 30 days but it’s dependent on the volume of their caseload generally whether they can review the entire record and write a decision that quickly.
Some CBAs say that an arbitrator must render a decision within a certain time frame, and if the parties want to enforce that time frame, they are well-advised to let the arbitrator know before they begin the hearing, in case the arbitrator cannot complete it within that time frame. Alternately, the parties can advise the arbitrator of the time frame and ask that the decision be completed as reasonably close to that time as possible. Some arbitrators insist that timelines for their decision be waived.
In some cases, a decision will take longer than ninety days, and it puts the parties in a bind. I recommend that the parties discuss between them how to proceed and that one advocate reach out to the arbitrator on behalf of both parties, preferably by email with a copy to the other side, asking when the parties might expect a decision and if there’s anything more the arbitrator needs to complete their work. If the arbitrator has an assistant, you might include them in the correspondence to see whether something has happened that explains the delay.
If that doesn’t work, reach out to the appointing agency to let them know that the decision is delayed. If the arbitrator was a private selection and not appointed from a roster, then reach out to a professional association that the arbitrator belongs to, such as the National Academy of Arbitrators, to find out if something has gone wrong. Perhaps the arbitrator has suffered a medical problem which is causing the delay.
Arbitrators are encouraged by the Academy and the roster agencies to have succession plans in place if they are not able to complete their work. Not every arbitrator does, of course, so it occasionally falls to the parties to find another arbitrator to assist in resolving the matter. Hopefully this is so rare that few of my readers every encounter that problem.
When the decision comes, it will be accompanied by a bill. Please pay it.
After you receive the decision, it’s obviously your responsibility to send it to your client or share with your staff. If there are any remedy issues, please reach out to the other side promptly. The arbitrator can only help with remedy if they “retained jurisdiction over the remedy.” Usually that jurisdiction is limited by a certain amount of time but the parties can mutually agree to extend it.
If the parties cannot resolve the remedy issues, reach out to the arbitrator. It’s my practice to have a phone conference about this to see where the gap is and to encourage settlement. I don’t really want to hold a whole new hearing on the remedy. Sometimes, it’s just that the grievant needs to hear that they are not going to get the windfall that their brother-in-law-the-paralegal told them they should get. If a phone call doesn’t resolve it, we have another evidentiary hearing about the damages.
Once an arbitrator’s jurisdiction has ended, they can no longer rule on any issues or consider matters raised by the parties. It’s called the doctrine of functus officio, and it means the arbitrator “lacks the power to re-examine the issues.”
Let me know if you have any questions you’d like addressed in future newsletters, and have a great week.