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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today, we are featuring a discussion about the union grievance arbitration process.
Our guest is Corey Franklin, a member of FordHarrison’s Labor Relations and Healthcare practice group and Office Managing Partner, St. Louis. He walks us through keys to success in the arbitration process and shares hard lessons learned along the way.
“Where things tend to fall apart is where the employer is not fully apprised of their own facts. Every day, we all face a growing stack of paper and emails and things to do,” Franklin says. “So it’s understandable that folks tend to try to jump to the conclusion and cut out the investigation. But that’s really the first thing to do: Make sure you’ve got your arms around all the issues, all the facts, all the documents that are going to establish those facts.”
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Interview References:
Corey Franklin’s FordHarrison profile.
TRANSCRIPT
Matt Crossman, Host: You’ve represented large corporations and small businesses in labor-related issues. We’re going to talk about three keys to handling union grievance arbitrations: the dispute phase, the pre-hearing prep and the hearing. The first step is the dispute phase.
Corey Franklin: What I tend to tell clients is a lot of times they lose their cases before they ever call me. That’s because they haven’t done the initial assessment to ensure that they’ve got the case that they think that they have.
For example, irregular enforcement of a disciplinary rule: the HR director may not be aware of it, but whatever the issue may be, if that’s always been how things go on the line level, and now you’re enforcing it, that can be really problematic.
Where things tend to fall apart is where the employer is not fully apprised of their own facts. Every day, we all face a growing stack of paper and emails and things to do. So it’s understandable that folks tend to try to jump to the conclusion and cut out the investigation. But that’s really the first thing to do: Make sure you’ve got your arms around all the issues, all the facts, all the documents that are going to establish those facts.
As you’re building out your defense of the grievance, understand that you’re also having to build out a defense, not just on a contract, but under the board’s law, which unfortunately in this day and age, changes as often as the board members change their socks.
And then, finally, you’ve really got to be in a thoughtful position about who you’re selecting to hear the case once you get to the point where you’re denying the grievance and sending it to arbitration.
For my clients, we try to impress upon them the importance of doing a really thoughtful and in-depth analysis of an arbitration panel— looking at analogous cases, looking at the standards that the arbitrators are holding employers to and unions to. And from a burden of proof perspective, we look at how much proof they’re asking for in different types of cases. You have to really make a thoughtful assessment of how you want to rank arbitrators so you know what you’re getting into on the front end and what you need to do to build your case from a litigation standpoint.
MC: I want to ask about the first sentence in that answer — a case is lost before they ever call you. What policies or procedures can they put in place in the first place so that they are ready when these things come up?
CF: There’s the old adage, many hands make light work, right? One person can’t carry a telephone pole around, but 30 people can. If you recognize that there are other people within your organization that have meaningful information and insight onto a particular issue, you’ll know it’s not in your best interest to rule upon just the snap judgment that you make when you receive a grievance.
Under the contract, you usually have a few days before you have to issue a response. Take advantage of that. Get as much information as you can before you render decisions.
Another problem: Employers frequently will not only make snap judgments, but they won’t articulate themselves well in the grievance response. It could be you pulled up a document off the computer that somebody used in a previous grievance denial and changed the names and the date and just used that without recognizing that it’s citing the wrong section of the contract. It’s referencing facts that don’t apply, then you get three steps down the trail, you’re going to arbitration and your witnesses and your lawyer are looking at this like, what in the world does this even mean?
Make sure you dot your i’s, you cross your t’s, collect your information at each step, and make sure that folks that have insight are consulted so you’re getting to your best decision. Are you going to be right 100 percent of the time? No. But again, many hands make light work.
MC: One more question on the dispute phase, before I move on to pre-hearing prep. This probably applies to all three, but I’ll ask it here at the beginning. I talked with a contract negotiator who has worked on both sides, and she advocated going out for off-the-record drinks with the other side so you’re not always at each other’s throats.
Does that work with arbitration, too? And do you advocate a position like that?
CF: Absolutely. Oftentimes with my clients, I’m negotiating the contract. I’m arbitrating the disputes, and I’m helping them in the day-to-day contract administration as we go. And unlike employment litigation where you may not see a plaintiff’s lawyer ever again in your career after you try a case with him, the labor-management relationship is a lot more like a marriage.
It may be a rocky marriage because you’re at loggerheads a good amount of the time. But you’re going to be dealing with them in all likelihood for all your career—whether it’s going out for drinks or just picking up the phone when a new arbitration hits your desk to talk through whether this is something that’s going to get resolved, whether it’s not, and if it’s not, why not.
There are certainly occasions, particularly in disciplinary cases, where the union says, “yeah, we know this isn’t a great case,” but they’ve got to take it because they have a duty of fair representation they need to fulfill to their members. They recognize that it’s tough sledding, but they’re going to put forth their best effort.\
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