I place great value in the advantages of arbitration and factfinding and always endeavor to respond quickly, schedule promptly, decide expeditiously, and keep expenses to a reasonable amount.
Because I travel often, regular mail will necessarily sit in the post office until I return. Mail requiring delivery confirmation is worse since it causes an even greater delay. E-mail is the best and preferred method of communicating with me. I acknowledge all messages so a follow-up hard copy is not necessary. I e-mail decisions only to the principals but all other communications are also sent to those whom the parties individually include as cc's.
It may be helpful to know in advance how I usually handle matters. The following are guidelines I use but any rules or practices you have established or jointly request, or a statute or AAA, FMCS, NMB or other agency regulations may alter any of the following procedures:
Engagement: I assume an engagement upon receipt of notice from a city or state board, the AAA, FMCS, or NMB, a panel, or by notice by one party when the other is copied. Upon engagement I will contact the parties to discuss preliminaries. When the parties notify me of an appointment directly, in some cases I am required to notify the agency maintaining the roster which then issues its own appointment.
Prehearing Matters: After receiving notice of appointment, I will e-mail to both parties a form that will assist in resolving some preliminary matters, including:
Authorization for resolution of arbitrability objections
Each party should e-mail their completed form back to me within two weeks. Please at least attempt to agree on available dates and the anticipated length and location of the hearing. It would also be helpful if there could be an agreement on the exact phrasing of the issue. If that's not possible, I will make that determination which is normally based on what is presented during the hearing. Matters such as sequestration, subpoenas and a limited form of informal discovery can be addressed closer to the hearing date, but see below for applicable deadlines. A notice of prehearing determinations will be issued shortly after receipt of the completed forms.
Authority: Normally the parties authorize the arbitrator to act as the sole arbitrator to arrange a hearing and issue a decision on the matters presented including any arbitrability and other procedural matters, since the alternative is court. If either party declines to authorize me to determine either, we will need to resolve the matter before proceeding.
Deferral: If the issue submitted to arbitration is a deferral of an unfair labor practice charge by the NLRB alleging a violation of rights contained in Section 8(a)(1) or (3) of the NLRA, please refer to the requirements for such deferral outlined in the General Council's Memorandum GC 15-02 of February 10, 2015.
Communications: Please use e-mail for all communications with me. If necessary, a fax (206.892.9718) or letter will work although it may cause a significant delay. Above all, please avoid return-receipt mail. Regardless of which method is used, please be sure to issue a complete copy to the other party.
Documents: For the sake of space the parties are encouraged to print on the front and back of a page when submitting evidence and briefs. Documents may be submitted by electronic means if agreed in advance, provided it is readable on both a PC and Mac and that it has been checked for viruses.
Subpoenas: Except in emergency situations, a party wishing me to sign a subpoena should make sure I receive the completed form not fewer than 20 calendar days prior to the first day of the scheduled hearing. It would be helpful if you would also provide me with the statute or court decision that authorizes subpoenas by arbitrators.
Discovery: Discovery is not often used in labor arbitration and factfinding because both processes tend to focus on known and narrow issues about which the parties already have a great deal of information, and fishing for additional evidence and issues is discouraged. The need for an order to produce information is also unusual because access to pertinent information is often required by law. However, such an order can be appropriate when it is the only reasonable and/or timely method of obtaining information. Except in unusual circumstances, a request to order production needs to be made to me sufficiently in advance so we can discuss it via e-mail and/or a conference call and complete the process without disturbing the hearing date. Upon receipt of a request for a production order I will send to the parties a procedure under which the request will be processed. Requests will be decided based on the relevance of the information to matters actually in dispute, if the requested party is in possession of such information, and any other reason the request has been ignored or denied. Depositions and interrogatories are very rarely used in labor arbitration or factfinding.
Arbitrability: Arbitrability objections are normally taken up at the outset of the arbitration hearing and are usually resolved after the parties have presented their cases.
Dispositive motions: Unless the CBA requires or the parties jointly request, due to the potential of additional time and expense, dispositive motions intended to limit or preclude a hearing must be preceded with a request to file such a motion. A request must be made sufficiently in advance to allow a conference call to discuss the matter, and if filed to complete the process of argument, reply and decision without disturbing the hearing date. Consideration of a request to file a dispositive motion is based on the likelihood that it will dispose of some or all of the issues, contribute to a more efficient hearing, and/or lower the cost of the proceeding. Due to the nature of arbitration as opposed to court, dispositive motions which resolve all the issues and therefore dissolve the need for a hearing are rare.
Prehearing briefs: Because of the added time and expense involved, please inform me in advance if you wish to submit a prehearing brief. They are rarely used in arbitration but may be useful in the case of highly complex matters and multiple parties.
Timeliness: Unless there is genuine necessity and it is outside the reasonable control of the party, the hearing 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 result in an adverse 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. I wear a suit but the parties and especially the witnesses should wear whatever they find appropriate and comfortable.
Cell phones, tablets, etc.: I understand the need to stay in touch with your office and therefore request only that ringers, alert tones and click noises on all devices be turned off. If a voice call is necessary, please do it during a break or outside the hearing room. I will request that all such devises be turned off if it becomes disruptive, and of course there can be no broadcast of the proceeding and witnesses cannot make any use of such devises.
Logistics: A private room suitable for a hearing should be arranged as soon as possible. The best table arrangement is a rectangle with me seated at one end, the opposing parties opposite each other on the sides, and a chair for witnesses on the end opposite me. Except for a reasonably close electrical outlet, I am not in need of any special accommodations.
- Explanation of the issue. The parties are encouraged to determine in advance an exact framing of the issue. 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.
- Depending upon circumstances, consideration of renewed attempts to settle or mediate.
- Consideration of arbitrability objections.
- Submission of joint exhibits. The parties are encouraged to arrange such in advance, which in the case of arbitration usually includes the contract and grievance paperwork.
- Presentations. The Union will normally be first, followed by the employer. However, the order is usually reversed in discipline and discharge cases. Each party will have reasonable time to present an opening statement. While it is acceptable for the party presenting second to postpone the opening statement until that time, it is helpful if I have both opening statements at the beginning so I have a general idea of each party's position up front.
- Cross Examination. After each witness, the other party will be granted reasonable time to cross examine the witness.
- Objections. All objections will be heard and considered, although some may give way to a less formal structure designed to allow the consideration of a wider range of information. Some leading of witnesses is allowed to expedite creating a record of undisputed time, location, events and participants.
- Closing. Each party will have reasonable time to present closing arguments, or the parties may agree to submit briefs instead.
Submission. The matter will be deemed closed at the conclusion of the hearing or the date briefs are due. Neither party can submit in their brief or by any other means any additional substantive information without advance permission of the other party or reopening the hearing.
Evidence: It's best if there are four readable copies of each document available - one for me, one for the witness, and one for each advocate. Each document will be subject to objection and will be marked at the time it is accepted into evidence. Please number pages when the total exceeds three - Bates numbering is fine. Bound sets of documents must be able to be dissembled as each is subject to objection and will be marked separately. A party calling my attention to a statute, regulation or decision is encouraged to provide the full text of such to me and to the other party. Otherwise, obtaining and/or researching such may add to the time required to study and issue a decision.
Participants: Normally the parties deemed appropriate to be present at all times are each party's representative and principal, and the witness.
Witnesses: Witnesses will be sworn on their oath unless the parties agree otherwise. A request for sequestration will usually granted upon request. A procedure should be established for the reasonably prompt attendance of each witness when needed. Each witness should be for the purpose of presenting pertinent testimony. While not required, it is a good idea to furnish me with a list of participants and witnesses to address potential disclosure issues.
Remote testimony: When unusually high expenses can be saved or when a witness would otherwise be unavailable, I usually grant a request made in advance of the hearing for remote testimony provided there isn't a critical reason why the witness should appear in person. I request that the party calling such a witness arrange for a visual as well as audio presence, which is easily accomplished by use of GoToMeeting type programs, or even just Skype or FaceTime.
Translator: Each witness should testify in the language in which they are most comfortable. If that's other than English, or if a witness is hearing or speech impaired, a translator - preferably certified - may be necessary. The party presenting the witness is responsible for arranging for the translator unless both have such witnesses who prefer the same language in which case the cost is normally shared equally.
Breaks: There will be reasonable rest breaks as well as a meal break of sufficient length at approximately the middle of the day.
Record: I type my notes and record the hearing on a computer to augment my memory. My notes are not shared but I will either at the end of the hearing provide a copy of the recording on a USB memory stick in ".mov" format, or convert it to a ".wav" file and transmit it via Dropbox (the size of the file usually exceeds e-mail limitations). The recording is subject to the flaws of the equipment and operator, so my recording is not intended to be an official record and a copy is not guaranteed. My computer has virus detection software, but you will want to check the file yourself. The parties may arrange jointly or individually to make their own record of the hearing.
Briefs: To be considered, a brief must be sent to me in accordance with the time and other requirements agreed by the parties.
Decision: Normally a decision will be posted simultaneously to each party not later than 30 calendar days from the hearing or deadline for briefs, unless otherwise agreed by the parties or established by law. I do not submit decisions for publication.
Jurisdiction: Unless both parties wish otherwise, I usually maintain the jurisdiction necessary to resolve questions of interpretation and/or implementation received within two months after the issuing of a decision.
Record: I securely discard all notes, recordings, evidence and other materials related to a case upon receipt of a notice of withdrawal from the moving party or the issuing of the decision.