Takeaways from The NAA Meeting
AI, Gun Violence, and the Canadians
Two weeks ago, I was in Boston for the National Academy of Arbitrators Annual Meeting. This conference is not limited to arbitrators; it’s an opportunity for advocates and neutrals to learn about new trends in labor relations together. I ended the meeting with a positive COVID test but the rest of the week was one of the best NAA meetings I’ve attended. The topics were provocative and current. Hopefully, I’ll be able to share select video from the best events.
Artificial Intelligence
One of the biggest issues facing a lot of workplaces is AI, and labor relations and the legal profession are not immune to the issue. “Generative AI and Labor Arbitration - As the Case Develops, at the Hearing, and on the Arbitrator’s Desk” was a session that was mostly human generated, except for a section where one presenter showed AI-generated images of “labor arbitrator hearing a case” and similar prompts. All of the outputs showed white male arbitrators or all-white “audiences” within the image. It was a helpful visual for understanding the limitations that exist within the AI framework, which is using “rules” that are not human-generated (at least explicitly) and are not known to the user.
Some of the biggest questions were, will labor and management want AI to be used in arbitration? Do arbitrators? If so, what will it look like? My takeaway was that unions are more reluctant to use AI for arbitration because it deprives the outcome of the human components of decision-making: empathy and fairness. But the management folks didn’t seem that gungho either. In any case, the NAA has set up an AI Study Committee to discuss the issue and generate (as humans) a few ideas for who arbitrators can ethically use AI.
Guns At Work
Arbitrator Barry Winograd led a session that was a mock arbitration, with two union advocates, two management advocates, and four arbitrators, including one from Canada who rarely faces the guns at work issue that many American arbitrators have heard with regularity. In the case, an employee leaves a gun in his locker in violation of policy and it is discovered after he has a confrontation with his supervisor. Some of the issues raised by the parties were, 1) can an employer put evidence about other gun violence issues not related to the employee into the record? 2) does an employee have a right to be forgetful where there’s no evidence of a threat? 3) does it matter if it’s a public or private employer? In the end, two of the arbitrators upheld discharge, one imposed a 30 days suspension because she felt there was serious privacy and hearsay issues, and the Canadian arbitrator said he would settled the case.
The question I walked away thinking about was, at what point does a form of misconduct become a “capital offense” or “serious misconduct” when it may have been tolerated in the past. For example, guns at work and sexual harassment are taken much more seriously now than they were when I started practicing 25 years ago. Neither have become “capital offenses” in the sense that progressive discipline need not be considered, but they have risen to a level of seriousness where an employer is not expected to tolerate repeated offenses. It will be interesting to see how views evolve on the discipline levels appropriate for these actions.
The Canadians
Despite its name, the National Academy of Arbitrators includes Canadian arbitrators (and South African arbitrators!) and one of the more enjoyable sessions was '“Let’s Learn from Each Other” about the different practices in each country. Here are some fascinating differences:
Canadian employers do not have the same obligation to disclose records to the union in the same way they do here. The NLRA requires American employers to disclose information relevant to the grievance. In Canada, employers reserve evidence until just before hearing, which is frustrating to the unions but not within their control to stop.
It can take two years to get a hearing before a Canadian arbitrator. American arbitrators who are busy are sometimes booking up to 12 months ahead, but beyond that, the parties will just look for another arbitrator rather than wait. An employer advocate said that she likes the delay because it means that it’s unlikely they’ll have to put the employee back to work. Employees are counseled by their uino to get new jobs because reinstatement and backpay are such a distant remedy.
Employers in Canada can play this waiting game because Canadian arbitrators are empowered to tell the parties to attempt settlement, and many do. Canadian arbitrators have no difficulty asserting themselves as mediators before the case is heard, whereas American arbitrators consider those to be different roles. They’ll only undertake both at the mutual request of the parties. Then, Canadian arbitrators encourage settlement, and the typical outcome is approximately one month of pay for each year they worked (so 7 months pay for a 7 year employee) and no reinstatement.
Almost every arbitration award in Canada is published on Canlii because it’s required by law. This makes it easy to learn how an arbitrator might rule on a similar case or how arbitrators generally view an issue. Advocates create books of other cases for Canadian arbitrators so they can read how they themselves or other arbitrators have ruled on an issue.
George Mitchell
Finally, former Senate majority leader and Ireland Peace accords negotiator George Mitchell was the featured speaker. He was fascinating and funny. When I get the video, I will post it.
Next year, the NAA Meeting will be in Seattle from April 29 to May 3, 2025. I hope you can make it! I am determined to avoid COVID next year but I still plan to attend.
Dramatically storming out of the room is a common tactic in Northern Ireland.
-George Mitchell