Workplace disputes and collective bargaining issues are often resolved by a specialized type of arbitrator called a labor arbitrator. While many arbitrators will cover a wide variety of subject matters and bring their own experience to their arbitrations, labor arbitrators often go through specialized training and bring specific experience to help resolve the intricate and difficult workplace disputes that may arise. Labor and employment disputes are also often emotionally charged and public, which makes arbitration a wonderful option to help resolve the dispute while keeping it private. However, arbitrators also need to be trained in how to handle emotions and public pressure when resolving these disputes. Understanding the labor arbitration process and the arbitrator’s role will help employees, employers, labor unions, and companies choose whether calling on a labor arbitrator is the best option for their dispute.
Brief Introduction to Arbitration:
Arbitration is an alternative dispute resolution mechanism that has exploded in popularity around the globe in the last few decades. Instead of presenting evidence in front of a judge or jury and having them decide the case, the parties will present their case to an arbitrator or a panel of arbitrators who decide the case. While this may not seem much different from litigation, several key differences have impacted the popularity of arbitration. Arbitration allows the parties to keep the dispute confidential and allows the parties to have a final resolution without getting tied up in years of appeals. Arbitration is also voluntary, which means that the parties have to both opt into arbitration at some point, which makes it impossible for one party to force the other into arbitration. However, many arbitrations are agreed to in employment contracts, so some disputes will be required to go through arbitration rather than litigation.
The Role of the Arbitrator:
Arbitrators are neutral third parties that are appointed by the parties or the organization under which the parties have agreed to arbitrate. Arbitrators are obligated to disclose any potential conflicts that may arise between their own lives and the position of either of the parties, as well as stop arbitration if an issue comes up that may call their independence into question. Additionally, they must act neutrally while conducting the arbitration, and one-sided actions may be caused to overturn the award. Many arbitrators will draw upon years of experience and expertise in the field to aid in their decisions and help the process move along efficiently. Arbitrators are the decision-makers in an arbitration. They hear the testimony and examine the evidence to issue a decision called an award.
In addition to their own experience, many arbitrators are trained by organizations in specific areas. Many of these organizations have directories and appoint arbitrators for disputes, so it is common for arbitrators to join the organizations to become a part of these directories. They will often only recommend arbitrators that have experience and knowledge of the subject matter and have gone through training with the organization to stay on top of their field. Two organizations that are commonly mentioned in labor and employment disputes are the American Arbitration Association and Federal Mediation and Conciliation Service. These organizations have a proven track record of quality training and arbitrators to help clients resolve their disputes, so many companies rely on their services.
Labor Arbitration v. Employment Arbitration:
The overall term “labor arbitrators” is typically meant to refer to arbitrators who deal with both labor arbitration and employment arbitration. However, the two types of arbitration differ greatly in their subject matter and approach, although they do both falls into the larger category of workplace disputes. The distinction is important to make because the purposes each type of arbitration serves can bring valuable insight and resolution to a specific type of dispute, and the arbitrators that work on these cases need to be specifically trained for the type of case that they are handling. Many arbitrators will have both labor and employment disputes, but when a dispute arises and a specific arbitration is set, it is beneficial to choose an arbitrator that is skilled in the specific type of dispute.
The term labor arbitration is used to designate arbitration concerning collective bargaining contracts and negotiations. While these arbitrations will not often resolve the wider collective bargaining negotiation, they will often help provide fact-finding determinations to help the parties understand the facts that are pertinent to the dispute and see a clearer picture of their position before the arbitrator and of the overall negotiations. Occasionally, the arbitration will be used as a last step option when the management and the union representatives cannot agree, and will usually only decide on the portions of the negotiations that the parties have not already resolved. These arbitrations are often difficult to conduct because collective bargaining disputes are often influenced by public opinion and can include emotions and hard feelings between the parties. However, a good labor arbitrator will be able to work through these issues, examine the facts, and issue a decision that the parties will be able to follow effectively.
Employment arbitration, on the other hand, focuses on individual employees and the disputes that arise out of the workplace and in employment contracts. The arbitrator will hear the issues as presented by the parties and then create an award that helps resolve the dispute effectively. Arbitration has become a popular choice for employment disputes because much of the subject matter is often sensitive and both employees and employers would prefer to keep the information between themselves. Many employment contracts will contain an arbitration clause to ensure that any disputes that arise from the employee’s contract will be resolved through arbitration. This arbitration is broad and allows the parties to bring many disputes related to employment to the arbitration. The most important distinction is that unlike labor arbitration, where collective bargaining is a portion of the dispute, employment arbitration covers individual employee disputes.
Common Cases for Labor and Employment Arbitrators:
To better understand what labor arbitrators do, it can be helpful to consider the types of cases that an arbitrator may see while they practice both labor and employment arbitration. Common causes include:
- Collective Bargaining Disputes: As mentioned several times above, labor arbitration covers disputes between management and labor unions. For disputes, a labor arbitrator will usually be presented with a claim that one or both parties are breaking the terms of their agreement in some way. The arbitrator will decide how the agreement is being implemented and whether either party is breaking the terms.
- Collective Bargaining Negotiation: In addition to disputes, a labor arbitrator will often hear cases concerning the negotiation of a collective bargaining agreement. These disputes arise when the agreement is being written. Collective bargaining negotiations will often reach a point where the parties cannot agree on how much to give or take from an agreement. This is where an arbitrator can step in. If the parties do not agree about the facts influencing their needs, the arbitrator may make a fact-finding award to help guide negotiations. Alternatively, if there are issues that the parties cannot reconcile, the arbitrator can issue an award deciding these terms.
- Terminations: Shifting to employment cases, the most common form of case an employment arbitrator may see is wrongful termination. In the United States, employers usually do not need a cause to terminate an employee, so these are often straightforward. However, if an employee’s contract requires a good cause to terminate, there will likely need to be a hearing on the termination. Alternatively, a former employee may challenge how they were terminated, which is more regulated.
- Discrimination: Another common type of workplace issue is discrimination or harassment. These cases revolve around an allegation of discrimination or harassment, typically on the part of management. This can also include a failure to provide accommodations to an employee with disabilities or religious beliefs. Another important claim that may arise is retaliation, which is where an employer begins to treat an employee poorly after they report discrimination or harassment. Arbitrators can hear these cases and issue a decision without outside pressure or influence, which can often be beneficial for both sides.
- Wage Claims: Employees can challenge the wages that they receive if employers fail to pay them what they are owed. This can be a result of refusing to pay for hours worked, incorrect deductions, or failure to pay employees. Arbitrators will examine these allegations and determine how much an employee is owed.
- Contracts: Another common type of dispute is the issues that arise either out of the employment contract, such as benefit issues or duties, or they can result from a severance agreement, where the parties disagree about how severance should be paid out.
These are common types of cases that will be in front of a labor arbitrator. However, this list is not exhaustive, and it may be beneficial to speak with a lawyer about the claims that one may have to determine how to proceed.
How to Become a Labor Arbitrator:
Becoming a labor and employment arbitrator is not a complicated process, but it often requires decision-making and fact-finding experience. It also often includes experience in the subject matter, such as high-level management, labor representatives, and employment lawyers and judges. If someone has this experience, they can often begin the process of shifting their career into arbitration. There are several tips and steps that a person can take to prepare. These tips include:
- Research: Understanding the work and how it is done is important to go into the task of becoming an arbitrator. Researching the work and the training necessary can help alleviate any surprises and ensure that a person enters the process prepared.
- Organizations: Find an organization that provides training and allows arbitrators to join a directory. This can help bring jobs to a new arbitrator and ensure that their business begins effectively. They can also assign new arbitrators to cases with experienced arbitrators to help encourage development.
- Plans: The best thing that a new arbitrator can do is the plan. Deciding where they would like to be in a few years, how much they want to charge, and how they are going to grow their book can help set up a new arbitrator for success.
- Confidence: The best thing that a new arbitrator can do is have confidence in their ability. Trusting that they can do the work is important. A lack of confidence will come through in both arbitration and marketing and will likely stifle the growth of the firm.
Understanding the role and having the confidence and experience to arbitrate labor cases will keep arbitrators at the top of their game. Before long, they will be arbitrating with the best of them.