Jeff J. Minckler
Arbitrator & Factfinder
I place great value in the advantages of arbitration and factfinding and always attempt to respond quickly, schedule promptly, decide expeditiously, and keep expenses to a reasonable amount. Mail sent registered or return-receipt can end up sitting in the post office for a bit, so please use e-mail for all communications.
It may be helpful to know in advance how I usually handle matters. The following are just guidelines I use, but any rules or practices you have established or jointly request, or a statute or AAA or FMCS regulations may alter any of these procedures.
Engagement: I assume an engagement upon receipt of notice from a city or state board, AAA, the FMCS, a panel, or by notice by one party when the other is copied. Upon engagement I will contact each party or the parties jointly to arrange preliminaries.
Pre-hearing: I found trying to coordinate a date and time for a pre-hearing conference to be problematic, so I developed a "Prehearing Matters" form which encompasses all the items which need to be resolved before a hearing:
Estimated length of the hearing
Date and time for the hearing
Issue and proposed remedy
Order of presentations
The Preliminary Matters form will be attached to the initial contact e-mail sent to both parties after receiving an appointment, and I ask that the form be completed and e-mailed back to me within two weeks.
Documents: When a hearing is conducted by videoconference, it is required that the parties exchange all anticipated evidence, with a copy to me, by 5:00 PM local time, the day before the hearing. A party can add additional unplanned but relevant documents during the hearing, provided they can be immediately shared with the other party and with me. Exhibits that are three or more pages should have some numbering or other identification on each page for easy reference. The parties are encouraged to arrange for the submission of joint exhibits, which in the case of arbitration usually includes the contract and grievance paperwork.
Subpoenas: A party wishing me to sign a subpoena should fill out the form appropriate to your jurisdiction and e-mail it to me as soon as possible, but ordinarily not less than 20 calendar days before the witness is needed. I will sign the form and e-mail it back to you for service.
Discovery: Discovery is not often used in labor arbitration because the parties are required to share most information anyway. If you have requested information from the other party and there is an unacceptable delay in receiving that information, please notify me right away so we can resolve the situation without disturbing the hearing date.
Motions: A motion or protest must be submitted as soon as possible to me and concurrently to the other party. Dispositive and other preliminary motions must be filed sufficiently in advance of the hearing to allow time for a response and decision without disturbing the hearing date.
Timeliness: Unless there is good cause to postpone a hearing, it will commence and proceed as originally agreed. The absence of a party and/or a party's failure to provide information without good reason will necessarily result in consideration of only the other party's evidence and testimony, and may create a negative inference.
Decorum: The parties should conduct themselves in a civilized and organized manner and control their own witnesses. Care should be taken to insure that the proceedings are confidential and that individuals are not frequently entering and leaving the room.
Cell phones and tablets: I understand the need to stay in touch with your office and request only that ringers, alert tones and click noises on cell phones and tablets be turned off. I will request all such devises be turned off upon a showing of good cause, or if I find it becoming disruptive. Of course there can be no broadcast of the proceeding and witnesses cannot make any use of such devises until after the hearing.
Videoconference: The hearing will be conducted by videoconference, usually by use of the Zoom program, which I ordinarily host. If a party is restricted to a different videoconference program, please alert me well in advance along with a suggestion as to hosting.
Logistics: Hearings conducted by videoconference provide the opportunity for each party to determine the location of their principals and witnesses. When sequesteration is prudent, witnesses will be logged off the videoconference program or placed in a "waiting room" until time for their testimony. Please arrange to have all witnesses available without substantial delay.
1. Explanation of the issue. The parties are encouraged to agree in advance to an exact framing of the issue and proposed remedy. In the event that doesn't happen it's necessarily left to me to determine, which may not be possible until the completion of the hearing.
2. Consideration of arbitrability objections, which will usually be ruled upon when the decision is issued.
3. Presentations. The Union will normally present first in contract interpretation cases, followed by the Employer. However, the Employer will usually go first in discipline and discharge cases. Each party will have reasonable time to present an opening statement. It is acceptable for the party presenting second to postpone an opening statement until presenting its case, but it's very helpful if I have both opening statements at the beginning so I have a general idea of each party's position up front.
4. Cross Examination. After each witness is sworn by me and provides his or her initial testimony, the other party will be granted reasonable time to cross examine the witness with opportunities for redirect and recross.
5. Objections. Objections over foundation and leading often give way to a less formal structure designed to allow the consideration of a wider range of information, although all objections will be noted and weighed.
6. Closing. Each party will have reasonable time to present closing arguments, which may be followed up or substituted with a brief.
7. Submission. The matter will be deemed closed at the conclusion of the hearing or the date briefs must be submitted. Neither party can submit in their brief or by any other means any additional substantive information without advance permission of the other party or without a reopening of the hearing.
Participants: Normally the parties deemed appropriate to be present at all times are each party's representative and principal, with witnesses called as needed.
Breaks: Reasonable rest breaks will be granted upon request, and a meal break of sufficient length will be provided at approximately the middle of the day.
Record: I usually type my notes on a computer and record the proceeding to augment my memory. If a transcript of the hearing is not produced, I will share a copy of the audio recording with the parties, usually through an invitation to download it from DropBox. The audio recording is in the form of a ".mov" document, which can be read by several PC and Mac programs. The recording is subject to technical and operator errors, and is not guaranteed to be complete nor intended to be an official record.
Briefs: To be considered, a brief must be e-mailed to me anytime prior to the deadline agreed at the hearing. The parties will cross-serve each other promptly after the established deadline.
Decision: Normally a decision will be e-mailed simultaneously to only each party's primary representative not later than 30 calendar days from the hearing or deadline for briefs, unless otherwise agreed by the parties or established by law or regulation.
Jurisdiction: I maintain jurisdiction after issuing a decision for the purpose of clarification and/or assistance in the application of a remedy.
Document Maintenance: I securely discard all records in my possession when the case is withdrawn or the decision issued, and I do not submit decisions for publication.