Going Without

Informal processes for speed and efficiency

Today, I’m attending the National Academy of Arbitrators annual meeting in Seattle. A focus of this conference is Arbitration Without Lawyers, a certification program that they have nicknamed AWOL. As you might expect, I support this idea. I wrote the Beginner’s Guide to Labor Arbitration Practice because I wanted to educate new lawyers and non-lawyers on a process that is the most efficient method of resolving workplace disputes.

It was helpful to hear four non-lawyer advocates — two union, two management — who present cases in arbitration talk about why they choose to present their own cases and how they decide when to bring in lawyers.

Why they like going AWOL:

“Folks who are closer to the work know the work better.”

“There aren’t better reps than the agency reps. The best reps are non-attorneys.”

“I more help from my own folks while attorneys bring in too much formality and create more work for the arbitrator.”

The arbitrator educates the union and keeps us on track.”

“Lawyers know a lot but to be an advocate, you need to learn the contract, understand the arguments, and develop the relationship.”

“Expensive to use an attorney.”

“Understood that the arbitrator just wants to facts. Efficiency and practical resolution.”

“Build rapport with the other side; interest based process. Identify the stakes and find a resolution.”

When they use a lawyer at arbitration:

“We want a lawyer when there’s more technical issues, but that’s always a conversation if a case doesn’t settle at mediation.” (Canadian arbitrators do mediation and arbitration in the same case).

“We bring in lawyers when the case is ‘severe’ like when there is a charter provision issue.” (Public sector union)

“When there’s a complex human rights issue - or I ask what is the impact if I get this wrong? If the impact is too big, will bring in the lawyer.” “

“Challenging grievors” such as those with a mental health issue or are very demanding. “Will they file a [duty of fair representation charge] or file a human rights complaint. Better to get lawyer involved early to manage the person and limit damage after the case.”

“Get attorney involved when there’s an underlying criminal charge.”

“I was able to develop stipulations of fact with the union, but I did present the stipulation to the city attorney to make sure it looked okay, but I didn’t otherwise get them involved.”

“Oftentimes when there is a contract violation grievance and it cannot be mediated, we don’t have the expertise and bandwidth to do those cases and will bring in the lawyer.”

Who does the cases:

“We have a labor relations specialist position (management) who are trained to do the cases. We give them training every year from an arbitrator. Tell them to focus on the relationship and emphasize stakeholder consensus.”

“The international union trains the staff and division stewards, but it’s general and we have regional differences. We will have our attorney do a training with our board.”

“As the ER manager had to train my people on the difference between punitive and progressive discipline. Intentional about not having a clandestine disciplinary matrix. Efficiency, fairness, transparency is necessary.”

“The FAA has a training academy but it hasn’t been held in years. It used to be two week-long sessions on arbitration advocacy. Each night we would prepare both sides of two cases and in the morning you would be told which side you would be presenting.”

“Sometimes we use co-chairs, so we include a less experienced advocate to do some directs and maybe the opening statement. I prefer oral closes because written briefs are not always necessary so I do those.”

Using non-lawyer arbitrators:

“I like some structure for the hearing and mind the big picture of the relationship between the union and the agency. I have a preference for lawyers but it’s really about their practical viewpoints.” [As an aside, this is a management rep who may not be aware that three of his four arbitrators are non-lawyers.]

“I share the list with our lawyer and the labor council to get their opinions about the possible arbitrators.”

“I like it as a more informal thing. They’ve added opening statements and we may not need it. It could be more informal.”

“We want an arbitrator who understands the history of the industry and an understanding of the relationship between the parties. We also need people who have dates we can book pretty far out.”

“We develop a panel in the collective bargaining agreement and then do a strike process. It also comes down to availability. I do have a preference with some legal background. That may be more important in federal sector where decisions can be appealed and we want them to be solid.”

The NLRA without the NLRB

“Going without” isn’t limited to lawyers in arbitration. In recent years, parties are turning to arbitrators to help them resolve matters that more typically go to the National Labor Relations Board. The most common use of arbitrators is to oversee union elections and card checks that are conducted pursuant to a CBA. For example, I recently did a card check for a department in a unionized workplace because the union successfully negotiated an “accretion” process to bring non-union employees into the bargaining unit. I’ve done a couple dozens of those.

Similarly, I did a post-election hearing about the inclusion of certain classifications in a recently organized workplace. The employer contended that the classifications were managerial or supervisory and the parties wanted an evidentiary hearing. The NLRB could not hold a hearing for at least 10 months, so they decided to hire me to do the hearing and write a binding award on the issue.

Other arbitrators are being asked to resolve unfair labor practices, a common outlet in the public sector in California. In the coming years, as the federal government remains mired in disputes about agencies’ duties under federal labor law, I predict parties who are not completely at odds with one another will increasingly turn to neutrals to handle workplace disputes typically handled by the federal agencies, and arbitrators are well-equipped to take these cases.

Going without the Board — and without lawyers — won’t hurt labor relations. Indeed, it may improve the speed of resolution!