PI UNIV SHELF GRIEVANCE ARBITRATION: TECHNIQUES AND STRATEGIES IT;STfTUTE OF INDUSTRIAL RELATIONS Cl PRLRY J1N 6 1978 UNIVERSITY OF LALlr(,RNl.A 8ERKELEY3 INSTITUTE OF INDUSTRIAL RELATIONS ANGELES) UNIVERSITYOFtCALIFORNIA, rLOS OTHER VOLUMES IN THE TRAINING MANUAL SERIES EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION IN LABOR-MANAGEMENT RELATIONS -- A PRIMER (1976) by Geraldine Leshin .... . . . . . . . . . . . . . . . . $8.00 IMPASSE RESOLUTION IN PUBLIC SECTOR INTEREST DISPUTES (1976) by James Gallagher .... . . . . . . . . . . . . . . . . . $8.00 COLLECTIVE BARGAINING AND CIVIL SERVICE IN PUBLIC EMPLOYMENT: CONFLICT AND ACCOMMODATION (1976) by Paul Prasow ..... . . . . . . . . . . . . . . . . . . $8.00 GRIEVANCE HANDLING AND PREPARING FJR ARBITRATION IN THE PUBLIC SECTOR (1976) by John A. Spitz .... . . . . . . . . . . . . . . . . . . $8.00 BUILDING YOUR MANAGEMENT TEAM -- A FRAMEWORK FOR PUBLIC SECTOR LABOR RELATIONS (1976) by John A. Spitz .... . . . . . ; $8.00 THE RODDA ACT -- ONE YEAR LAYER (1977) by Jack Blackburn .................... . $8.00 CONTRACT ADMINISTRATION IN PUBLIC SECTOR COLLECTIVE BARGAINING -- REVISED EDITION (1977) by James Gallagher .... . . . . . . . . . . . . . . . . . $10.50 THE SCOPE OF BARGAINING IN CALIFORNIA PUBLIC SECTOR LABOR RELATIONS (1977) by James Gallagher .... . . . . . . . . . . . . . . . . . $10.50 EMPLOYEE DISCIPLINE (1977) by John A. Spitz .... . . . . . . . . . . . . . . . . . . $10.50 California residents add 6% sales tax. Copies of these Manuals may be purchased from: Institute of Industrial Relations University of California, Los Angeles Los Angeles, California 90024 Telephone: (213) 825-9191 GIEVANCE ARBITRATION: ,1CHNIQUES AND STRATEGIESo., ,- Coordinating Editor: John A. Spitz, Administrator Center for Management Research and Education tlve0s51y, LallfYV\t. INSTITUTE OF INDUSTRIAL RELATIONSf.0 6 CAO.6/ov+Ae 5J Frederic Meyers, Director Daniel J.B. Mitchell, Associate Director Writt^7`y: Erin-Aine Miller d: rz4A Rosalind Schwartz ag Edited by: Felicitas Hinman Research by: Marlene Shaughnessy Thi Training Manual was developed under contract to the State of Cali rnia Agricul e and Services Agency through a grant from the U.S. Civil Service Commission under the Intergovernmental Personnel Act (P.L. 91-648). Any findings, opinions, or conclusions presented herein are those of the author and not necessarily those of the State of California or the U.S. Civil Service Commission. Cover by Marna McCormick $10.50o INSTITUTE OF INDUSTRIAL RELATIONS STAFF Frederic Meyers, Director Daniel J.B. Mitchell, Associate Director Geraldine Leshin, Executive Assistant to the Director and Coordinator of Institute Programs CENTER FOR CENTER FOR LABOR RESEARCH AND EDUCATION MANAGEMENT RESEARCH AND EDUCATION Jack Blackburn Administrator Ujohn A. Spitz Administrator James Gallagher Coordinator Angus MacLeod Coordinator Gloria Busman Coordinator Bernard McMahon Coordinator Helen Mills Program Representative Joan Gusten Program Representativ Janis Okida Program Representative Sandra Lind Program Representativ Karen Hogan Program Assistant Rita Stearn Program Representativ INFORMATION-PUBLICATIONS SERVICES Felicitas Hinman Principal Editor Rosalind Schwartz Senior Editor Marlene Shaughnessy Assistant Researcher Erin-Aine Miller Writer Kathleen Greene Publications - Sales Marna McCormick Publications - Production Bonnie Hernandez Publications - Production FOREWORD The Institute of Industrial Relations is happy to present Grievance Arbitration: Techniques and Strategies, the latest volume in a series of training packages completed under the terms of a contract between the State of California and the University of California, Los Angeles. With funds provided for the State by the Federal Government, the State asked the Institutes at Berkeley and Los Angeles to assist in the training of state and local public managers and employees in the conduct of labor relations. A major portion of our role is to prepare and provide train- ing materials such as this volume. Public sector management and labor, like their private sector counter- parts, are learning to live under collective bargaining agreements. Once these agreements have been negotiated, public managers and public employees are faced with problems of effectively interpreting and applying them. Disputes often arise during the day-to-day operations of an agency over the various subjects covered by an agreement. These disputes should be routed through the grievance procedure. Settlement cannot always be reached in the various steps of those procedures, however, and often such disputes are presented to a neutral third party for mediation or arbitration. The use of neutrals in public agencies follows the experience of the private sector which has repeatedly chosen to work within the arbitration system rather than using the courts. Arbitration is a private, quasi-judicial system, sensitive to the needs of the employer-employee relationships. The special expertise of arbitrators in the fields of industrial and labor relations, the informal atmosphere, lower costs, and speed of the arbitration process are the primary reasons why arbitration has been preferred to the courts. The success of arbitration depends in large part on the skill of advocates representing the disputing parties. Although there has been an increase in the use of lawyers as advocates, we believe that in many arbitration cases, a legal background is not a prerequisite. The successful advocate need not be a lawyer, but must be properly and thoroughly trained in the rules and techniques of labor arbitration. This manual presents a "how-to" pragmatic guide to grievance arbitration: the advocate-to-be will find the arbitration process--from background and history to arbitration submission agreements to post-hearing briefs-- thoroughly analyzed in one volume. Many of the sections of this manual can be found in other sources. But there is no one book or source that contains all of the material, edited and written expressly for the training of non-lawyers. It is our hope that with the publication of this manual, Grievance Arbitration: Techniques and Strategies, capable people drawn from the ranks of state and local managers and employees can utilize the information provided to become successful advocates. September, 1977 Frederic Meyers Director ACKNOWLEDGEMENTS I would like to express my appreciation to Linda Jenson Paterson, attorney, for her invaluable research assistance in the prepara- tion of this manual. I also wish to thank Donald Becker, Director, Julian, Becker and Associates, for creating the Arbitration Simulation found in the lesson plan which accompanies this manual. Special thanks is due to Rita Stearn, Program Representative, Center for Management Research and Education, UCLA, without whom this project could not have been accomplished. John A. Spitz C O N T E N T S TAB A INTRODUCTION . . . . . . . . ... . . . . . . . . . . . . . . . . . . A-1 ARBITRATION OVERVIEW A-2 I. Arbitration Definitions A-2 II. Grievance and Interest Arbitration A-3 III. Arbitration - Negotiation A-4 IV. Arbitration - Mediation - Conciliation A-4 V. Fact-Finding and Advisory Arbitration A-4 VI. Mediation-Arbitration A-5 VII. Arbitration: Compulsory and Mandatory A-5 VIII. Why Arbitrate? A-5 HISTORY OF LABOR AND GRIEVANCE ARBITRATION IN THE UNITED STATES A-8 GRIEVANCE ARBITRATION IN THE PUBLIC SECTOR A-15 FORMS OF ARBITRATION: "EXPEDITED ARB" A-18 UNION'S COST OF TRADITIONAL ARBITRATION FOR A ONE-DAY HEARING A-19 PUBLIC SECTOR USE OF EXPEDITED ARBITRATION A-27 EXAMPLES OF EXPEDITED METHODS A-29 9 WAYS TO CUT ARBITRATION COSTS A-31 TAB B BEFORE THE HEARING . B-1 WHEN AND WHEN NOT TO ARBITRATE B-3 MECHANICS OF SETTLEMENT B-6 THE ARBITRATION CLAUSE B-9 TAB B (Cont'd.) SAMPLE FORM FOR DEMAND FOR ARBITRATION B-16 THE ARBITRATION SUBMISSION AGREEMENT B-17 SAMPLE OF A SUBMISSION TO ARBITRATION B-19 SELECTION OF THE ARBITRATOR B-20 ADVANCE PREPARATION B-27 GENERAL RULES: PREPARATION FOR ARBITRATION B-30 CHECKLIST FOR PREPARING LABOR ARBITRATION CASES B-33 NOTES ON THE PRESENTATION OF THE CASE B-35 ARBITRATION ANALYSIS FORM B-37 ARBITRABILITY B-38 SAMPLE OUTLINE OF A PRE-ARBITRATION BRIEF B-46 APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-47 CALIFORNIA CODE OF CIVIL PROCEDURE B-47 ARBITRATORS CODE OF ETHICS B-60 QUESTIONS AND ANSWERS ABOUT THE CALIFORNIA STATE CONCILIATION SERVICE B-83 SAMPLE BIO. SHEET OF THE CSCS B-86 RULES OF THE AMERICAN ARBITRATION ASSOCIATION B-89 AAA RULES FOR EXPEDITED ARBITRATION B-94 FMCS ARBITRATION POLICIES, FUNCTIONS AND PROCEDURES B-96 SIMPSON & STAFF, INC. A.Q.R. SERVICE B-101 TAB C DURING THE HEARING . . . . . . . . . . . . . . . . . . . . . . . . C-1 CUSTOMARY ORDER OF ARBITRATION HEARING C-3 CAVEAT: EMPHASIS OF ADVERSARY METHODS AND PROCEDURES IN ARBITRATION C-4 SOME GENERAL GUIDELINES FOR ADVOCATES' BEHAVIOR DURING ARBITRATION HEARINGS C-6 THE HEARING PLANNING PROCESS C-8 PREPARING WITNESSES C-12 SUGGESTIONS FOR QUESTIONING WITNESSES C-14 ORDER OF WITNESS GUIDE C-15 INSTRUCTIONS FOR WITNESSES C-16 PERSUASION IN THE HEARING C-22 EVIDENCE C-24 DIRECT EXAMINATION C-29 CROSS-EXAMINATION TECHNIQUES C-43 OBJECTIONS C-54 CLOSING ARGUMENTS C-59 THE USE OF STATISTICAL DATA IN ARBITRATION C-68 CRITERIA USED IN DECIDING DISCIPLINE JUST CAUSES C-74 DETERMINING THE MUTUAL INTENT OF PARTIES---ARBITRATOR CRITERIA IN CONTRACT INTERPRETATION C-80 HOW TO USE THIS CHART C-81 EXPLANATION OF TERMS C-82 A WORD TO THE WISE C-86 ARBITRATORS PET PEEVES C-86 HOW TO ALIENATE ARBITRATORS AND LOSE CASES C-88