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The City occasionally has disputes with employee unions or associations that can’t be resolved by mutual agreement. After the issue has been processed through the established grievance process, the issue may be submitted for review by an independent third party who will act as an Arbitrator of that dispute.
Background on Arbitration
Collective bargaining and arbitration have had a similar development path in the United States. Arbitration has become the preferred method of dispute resolution between most Employers and Union/Associations. Prior to arbitration, grievance strikes by Union/Associations were often the norm. These strikes were very disruptive and led to lost work time for both the employer and Union/Association members.
Arbitration is the agreed-upon method that the City and respective Union/Associations have employed to resolve workplace grievances filed for alleged contractual violations. Some view the Arbitration of grievances and disputes as a continuation of the contract negotiation settlement process. The Arbitrator acts as a judge for the City and its Union/Associations/Employee groups in this process, and how they decide the issue at dispute has a lasting impact on how the City and employees operate.
Grievances/Disputes Appealed to Arbitration
A grievance may be clear on its face, or may be very complex and difficult to follow. Grievances may be filed for discipline issued by the City to an employee if the employee feels the City failed to meet their burden of just cause. Other grievances may be filed over the City’s application of the labor agreement.
The City makes every reasonable effort to resolve the issue giving rise to the grievance. If the issue remains unresolved, the City will prepare for the arbitration. Please keep in mind all labor agreements have time limits concerning the processing of grievance which should be strictly adhered to. The failure of the Union/Association to meet the time limits agreed to in the labor agreement may cause the grievance to have issues of timely presentation or to cause the grievance to be considered null and void.
Most of the City’s Labor agreements and Employee Handbooks provide that either the City or the Union/Association may advance a disputed issue to arbitration. However, for the most part the Union/Association or employee representative is the party that requests to advance an issue to arbitration.
Most of the City’s labor agreements or Handbook have a three step process (although the process varies from contract to contract). They are: the arbitration hearing, post-hearing briefs, and the award.
Preparing for an Arbitration Hearing
Labor Relations assists with the gathering of documents and statements that may be needed for the hearing as exhibits for the City. This process is completed with the cooperation of departments well in advance of the hearing. Cases of discharge are handled by the City Attorney’s office with the assistance of Labor Relations.
The City may need or require Union/Association members or general municipal employees to testify. In such cases, the Union/Association members or general municipal employees will usually be issued a subpoena to compel their appearance.
The Arbitration Hearing
The process of arbitration has become over the years far more legalistic and formal, often requiring a court reporter and the filing of post-hearing briefs by the parties. Most issues between the City and the Union/Association can be conducted in one day at hearing; however, on occasion more than one day may be necessary.
The Arbitrator is in charge of the hearing and rules on the admission of evidence, objections to questions asked and requests by either the City or the Union/Association/employee representative for other rulings. The Arbitrator is the keeper of the arbitration process, but it is ultimately the City’s process for labor-related dispute resolution.
The first side calls their witnesses and asks their witness questions. The other side then has an opportunity to question each witness on cross examination.
In cases involving discipline of a City employee, the City usually goes first by presenting the case for just cause discipline of the employee. The City is required to prove that just cause existed for the discipline. For Police and Fire employees, discipline is reviewed by the Police and Fire Commission.
In all other issues presented in arbitration, the Union/Association or employee representative usually goes first and is required to prove that the contract, Handbook and/or Ordinances have been violated.
If you are required to be a witness in arbitration, Labor Relations will usually prepare you as to what you will testify to at the hearing in advance of the hearing. A few things to remember when you testify are as follows:
- Be on time.
- Dress comfortably
- Do not discuss the case with any other witnesses waiting to testify
- Listen closely to the questions being asked of you and answer only the question at hand; do not volunteer information.
- Speak slowly and at a level to be heard by all attending the hearing.
- Ask for clarification of a question if you do not understand the question; do not answer without full understanding of the question.
- Answer each question to the best of your knowledge or recollection.
- Wait for a break if you have a concern about your testimony.
The City and the Union/Association/employee representative have the right to file post-hearing briefs to summarize the facts of the case and make an argument to the Arbitrator which explains their position on the grievance, and why it is correct. This usually occurs within a set timeline, and the City and the Union/Association/employee representative may request the right to file a reply brief with the Arbitrator.
Reply briefs are intended to offer each party the opportunity to respond to the position taken by the other party. The whole process from the date of the original grievance to the day the Arbitrator issues their award may take as little as three to four months, or up to a year.
When the Arbitrator issues their award it is final and binding on the parties, and will be used by the City and the Union/Association/employee representatives on how to apply a section of the labor agreement, Handbook, and/or Ordinances. In cases of discipline, the award decides whether the discipline issued by the City was for just cause.
Arbitration awards have a large impact upon the City and how we deliver services to the residents of Madison. The rippling effect of the award will be felt for years to come and may profoundly change the relationship between City employees. For this reason, it is important to be cautious when deciding whether to take issues to arbitration, and to attempt to settle issues in advance of the arbitration process.