Labor & Employment Newsletter
April 2012
Jeffrey T. Zaino, Esq.
Are all labor arbitrators alike?
By Jeffrey T. Zaino, Esq., vice president, American
Arbitration Association*
How labor arbitrators in Massachusetts and nationwide manage an
arbitration case, decide cases and bill for their time varies
significantly. Unlike court proceedings, however, you and your
counterpart to a labor arbitration proceeding have the benefit of
being able to select the decision maker. Selecting an arbitrator is
one of the most important, if not the most important, decision you
will make during the life of your case. Careful and thoughtful
consideration should always be applied. This article provides some
practical tips on how to select the right labor arbitrator for your
case.
General Needs and Case Requirements
You must first determine the general needs and requirements of
your case. This will allow for you to determine how much
flexibility you have with respect to selecting an arbitrator. The
starting point should always be the arbitration clause contained in
the collective bargaining agreement (CBA). This clause may contain
specific arbitrator background requirements and steps on how the
selection process should be completed. Some CBA arbitration
clauses, for example, require that the arbitrator be a member of
the National Academy of Arbitrators (NAA), a national organization
of arbitrators that have specific high standards for applying and
being a part of that organization. Section (2) of the NAA Statement
of Policy to Membership notes, "[t]he applicant must have
substantial and current experience as an impartial arbitrator of
labor-management disputes."
If a CBA requires that you utilize an administrative agency like
the American Arbitration Association (AAA), you will most likely
use an arbitrator that is a panelist from that agency. Most
agencies have a vetting process and specific standards for
admission to their panel. The AAA, for example, requires a minimum
of 10 years of labor management experience and nine references. The
references must come from both union and management advocates and
neutrals. It is important to the AAA that the applicant be well
known in the labor-management community that he or she might
serve.
Specific Needs
The type of case and its facts should also be considered when
selecting an arbitrator. Will you need an arbitrator that has a
specific industry background to understand the facts of your case
or is the grievance more general to all industry types? Are there
issues better suited for an attorney arbitrator? Or, would a
non-attorney arbitrator look at the case differently and bring a
different approach to the process? Would an academic arbitrator be
better? There are many arbitrators that are professors. The
approximately 200 labor arbitrators in Massachusetts come from a
wide variety of backgrounds.
Cost Analysis
The arbitrator per diems, cancellation fees, travel expenses,
and study time rates vary significantly. The per diem rates range
anywhere from $800 to $2,000 per day, a significant cost difference
from the lowest to highest per diem rate. Thus, arbitrator fees
must be carefully considered when selecting an arbitrator. If
there is a likelihood that your case will settle but only if the
parties are faced with the pressure of a scheduled hearing date,
arbitrator cancellation fees and policies must also be taken into
consideration. Like per diem rates, cancellation policies vary from
10 to 30 days before the scheduled hearing.
Does the arbitrator have a practice of billing numerous study
days? Study day billing practices can also make a significant
difference in overall arbitration costs. Arbitrators and advocates
must understand that there is no formula for billing study time
(i.e., for each day of hearing an arbitrator can bill X amount).
Study time billing should only be based on actual time reviewing
the case documents, deliberating and preparing the decision.
Finally, if you anticipate that the arbitrator will need to travel
a far distance to attend the hearing or you opt to use an
arbitrator from outside of Massachusetts, you should also review
the travel policy of the arbitrator. Some out of state arbitrators
might waive travel fees if they are seeking to make inroads in
other states.
Research
Once you determine the type of arbitrator you want, you can then
begin researching those available or listed as potential options
for your case. First, a careful review of the arbitrator's resume
should be completed. Most arbitrators provide detailed resumes
including education, industry experience, and all fees associated
with their service. Second, if possible, speak with colleagues that
have gone before this arbitrator in the past. Word of mouth seems
to be the most common method of research by advocates. Third,
review past decisions by the arbitrator. LexisNexis and Westlaw
contain thousands of full decisions redacted from labor arbitrators
nationwide. Reading these decisions will provide a sense of how the
arbitrator will manage your case and provide insight on the
arbitrator's analysis of various issues. Unfortunately, many
advocates are unaware that there an abundance of past decisions
available for review.
The Case for Using New Arbitrators
Finally, there is a strong argument for selecting and utilizing
a new arbitrator, particularly when it comes to less complicated
caseloads. These "new" arbitrators are generally not "new" to the
labor-management community. Most have 20 to 30 years of experience
in the labor-management field as advocates and have been carefully
vetted in order to serve as a neutral. Second, they are often more
available and less expensive than their seasoned counterparts.
Third, and in the interest of the process as a whole and its
future, we need to bring up the next generation of labor
arbitrators. Don't forget that the seasoned arbitrator that you
prefer to use regularly was once also a new arbitrator.
Conclusion
In addition to arbitration being an efficient and economical
process in comparison to litigation, there is the added benefit of
being able to select your decision maker. With that benefit,
however, comes the important responsibility of selecting the right
arbitrator for your case. Doing your homework and understanding
that all labor arbitrators have unique backgrounds and skills will
greatly assist your efforts.
*Jeffrey T. Zaino, Esq. is the vice president of the Labor,
Employment and Elections Division of the American Arbitration
Association in New York and oversees the operations, development
and panel of arbitrators for the Labor and Employment Arbitration
caseloads. Zaino is dedicated to promoting ADR methods and neutral
election services for our nation's unions, associations,
corporations, and colleges. His professional affiliations include
the Connecticut Bar Association, District of Columbia Bar
Association, New York State Bar Association and New York City Bar
Association. He has also written and published extensively on the
topic of election reform and has appeared on CNN, MSNBC, and
Bloomberg to discuss reform efforts and the Help America Vote
Act.