What is Off Limits in Arbitration?
The kinds of cases an arbitrator won't hear
I see grievances about nearly every aspect of the workplace. Disciplinary cases can range from the obvious (termination) to the less obvious (requiring someone to use vacation). Contract cases run the full gamut of issues on wages, benefits, and working conditions. In general, if it’s a workplace dispute, an experienced arbitrator has probably had a case that touches on the issue presented.
There are a few areas, however, where arbitrators do not adjudicate disputes. There are several reasons why an arbitrator would not hear a dispute:
It’s prohibited by the contract.
The contract is silent on the issue but there is a separate legal process for resolving the dispute.
It’s prohibited by law.
Personal preference.
The last one is the most easily explained. Some arbitrators may not feel that they have the expertise or experience to hear a particular case. For example, a non-lawyer arbitrator may be unwilling to hear a case that concerns a legal interpretation or the application of case law. Another example, an arbitrator feels that they are not personally able to set aside their bias to fairly adjudicate the issue. This could arise when a grievant is being accused of a kind of misconduct that is personally disturbing to the arbitrator and the arbitrator is unwilling to hear the evidence. That arbitrator would be obligated to step aside.
Some CBAs are explicit that certain issues are not subject to the grievance procedure. For example, in some contracts, probationary employees do not have the right to challenge their removal under the CBA. In some contracts, the parties have agreed that discrimination cases arising under Title VII will not be heard in arbitration.
(The opposite is true: parties can agree that certain cases, like discrimination claims, could be heard in arbitration. This is less common).
In all such cases, the arbitrator must follow the CBA. If the arbitrator asserted jurisdiction over a matter prohibited by the CBA, they would be “adding to or modifying” the agreement. That is not permissible.
Sometimes an issue comes up that seems like it should be in the grievance procedure, like an unemployment claim or a workers compensation dispute, but which the parties have not agreed is covered by the arbitration clause in the CBA. As long as there is some other pathway for resolving that dispute, the arbitrator is not going to wade into those legal claims, especially where there is a pending case in another forum. For example, I would have no binding authority on a unemployment hearing officer and I couldn’t rule on a pending workers compensation claim.
Please note: Parties who have disputes in court or in state agencies CAN go to arbitration. However, it is a different process than labor arbitration because it is not governed by the Collective Bargaining Agreement.
In some cases, “forced arbitration” is limited by law. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, for example, prohibits requiring arbitration of those claims. California goes further than federal law on this issue, and I think that a CBA that required arbitration of sexual harassment claims would probably be affected by this law, particularly if the party asserting the claim did not want to be in arbitration.
In one case I had, a federal employee who had a claim at the Merit Systems Protection Board simply refused to understand that he had to choose that forum OR arbitration, but not both, and I had to put the matter in arbitration in abeyance until the MSPB had ruled, because that was required by law and the contract.
In other cases, the parties have voluntarily put a case into abeyance while a criminal matter made its way through the courts. Once the grievant was found not guilty, they proceed to arbitration.
Cases involving outside law come up all the time in arbitration hearings. There are evidentiary rules about what an arbitrator can consider about those processes. For example, I cannot consider that a grievant had their unemployment claim denied as evidence of just cause. I can consider whether the employer properly followed their own FMLA policy. I could apply a court order or administrative judgment that is applicable to a grievant. For example, if a court awarded overtime pay to a class of employees of which a grievant was a member of the class, I could consider that award. Similarly, if a licensing board said a nurse was no longer licensed to practice nursing, I could consider that in determining whether he was qualified for his position. I may even be prohibited by law from reinstating him.
When there are related legal issues pending in other venues, it’s important to raise that to the other side as early as possible, confer with the attorneys in the other cases, and brief grievant and the arbitrator from the outset about the effect of the other matter on the grievance.
(This is not intended as legal advice and should not be relied on to evaluate any particular case. As with any grievance, discuss outside legal issues with the attorney for the union or the employer or the grievant.)