How to Think Like an Arbitrator

April 18, 2014: Thinking like an arbitrator will help you win your contract language grievances—even if you don’t go to arbitration.

When a member, steward, or union rep prepares a contract language grievance, a useful skill is learning to “think like an arbitrator.”

Almost all local Teamster contracts, and some national ones, have arbitration as the final step in the grievance procedure. So just as an attorney has to think like a judge, you need to put yourselves in the arbitrator’s shoes.

Thinking like an arbitrator will help you get the facts and evidence you need to win your case—hopefully without having to go to arbitration.  

What do Arbitrators Look For?

Arbitration hearings are different than grievance hearings between the union and employers, and require different kinds of preparation. Here are some important tips on what arbitrator’s think about when considering your case.  

Clear contract language. The first thing arbitrators will consider is whether the case can be resolved on the basis of clear and specific contract language. An arbitrator is
not interested in what seems fair or just, but primarily what the contract says.

The more clear the contract language the better. General language such as the employer “will assign work by seniority” is subject to interpretation. Specific language regarding daily overtime, weekly overtime, bidding, vacations, etc is more useful.

  • Taking the contract as a whole. Arbitrators don’t consider just one contract section, but they consider the contract as whole. You may think you have a slam-dunk based on one clause but come to find out it’s contradicted by language in another article or a separate Memorandum of Understanding. You can’t cherry-pick the most favorable contract clause. And where there are conflicts in language, clear specific language will trump general or ambiguous.
  • Bargaining history of the contract.  Arbitrators sometimes look at the bargaining history of contract language. More recent language often trumps older or original language that has been amended or added to. The “intent” of the bargainers—and not just the contract language itself—can also come into play where the union and employer cannot come to terms on interpreting contract language. Good bargaining notes and the use of information requests will help you develop a fuller interpretation of the contract.
  • Past practice. Arbitrators will generally look at past practices, particularly if they have been consistently recognized by both parties and consistently applied. For example, a contract may not mention paid breaks, but if workers have been allowed a 15-minute break every shift for years, and the company suddenly cuts the break to 10 minutes, an arbitrator would likely consider that a violation, absent language to the contrary. The longer a practice has been going on and the more consistently it has been applied, the better it is for your case.
  • Laws and Regulations. Arbitrators will also consider the case on contract language in dispute in light of state and federal laws: wage and hour laws, EEOC, OSHA, etc.

Preparing for Arbitration

Arbitrators have a stricter standard for evidence than employers at a lower-level grievance hearing usually do. Preparing your grievance from the very beginning as if you’re going to an arbitrator will help you build a stronger case.

You might get away with hearsay evidence in a local grievance hearing if management knows you can back it up. Not in arbitration. Witnesses need to be prepped so you can directly establish the facts.

Use information requests to obtain info related to the case. Anticipate the arguments from the employer. What are the background facts and contract language supporting your case and what facts and language support the bosses? Make a list of the employer’s strongest arguments, and your best refutation. Use the Arbitration Checklist and keep a grievance file to assemble your evidence and build your case.

Finally, the pros and cons of even going to arbitration have to be weighed. An unfavorable ruling might establish a bad precedent for you and your co-workers. If you think an arbitrator will likely rule against you, is there another way—bargaining, or organizing a campaign—to win what you want?

Arbitration Checklist

Use this checklist to prepare a grievance file with evidence, arguments and background material that support your case.

  • Issue and remedy sought
  • Contract language. All the relevant contract articles that apply to my case, history of the language from contract to contract, and any letters of understanding.
  • Background facts supporting our case
  • Background facts supporting the company’s side
  • Relevant points the union and the company can likely agree on
  • Company’s argument and our refutation of it
  • Our argument and the company’s refutation of it
  • Exhibits. Records, documents, disciplinary files, etc. from information requests.
  • Witnesses. Are witnesses prepped to provide direct testimony?

Have a question about your grievance or arbitration case? Contact TDU to get educational materials or for specific questions.

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