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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-1
GRIEVANCE AND ARBITRATION STRATEGIES
Ursula A. Kienbaum – Ogletree Deakins (Portland (OR))
Wade M. Fricke – Ogletree Deakins (Cleveland)
Todd C. Duffield – Ogletree Deakins (Atlanta)
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-2
Grievance and Arbitration Strategies
by Ursula A. Kienbaum, Wade M. Fricke, and Todd C. Duffield
I. GRIEVANCE INVESTIGATION
Before taking any action under a labor contract, the Company
should evaluate relevant contract provisions and other pertinent
factors. Investigating properly before taking action can help to
avoid action that may violate the contract and promote positive
employee relations, thus limiting the number of grievances and
arbitrations. Generally, two varieties of grievances arise under
collective bargaining agreements: (1) those alleging violation of a
specific contract provision that are non-disciplinary in nature;
and (2) those challenging employee discipline. Each type of
grievance requires a thorough investigation to ensure the
employer’s actions are defensible. Investigations help ensure
fundamental fairness and/or “just cause” is being respected. Time
spent and attention to detail will help to minimize the chances
that imposing discipline will be the subject of a grievance and
perhaps arbitration, while maximizing the chances of any discipline
imposed will be upheld if later challenged.
A. Conduct investigations with an eye to the issues on which the
arbitrator will focus.
Particularly in discipline cases, arbitrators look for
“fairness,” which means different things to different people.
Notions of “fairness” usually include due process (i.e., procedural
fairness) and progressive discipline (with exceptions for
particularly serious violations). Arbitrators’ notions of
“fairness” also often include taking into account mitigating
factors. For example, even if the offense at issue was serious and
might warrant termination, it is common for an arbitrator to reduce
discipline imposed on an employee with many years of service and a
relatively clean work record. See Elkhart County, Ind., Gov’t, 112
LA 936 (Cohen, 1999) (considering employee’s 13 years without
discipline during 14 years of service).
Arbitrators take all disciplinary matters seriously, but
especially discharge decisions, which have been described as “the
industrial equivalent of the death penalty.” In discipline and
discharge cases, under most collective bargaining agreements,
arbitrators will evaluate whether there was “just cause” for the
Company’s action. As one arbitrator put it: “the essence of just
cause is that the Employer, in carrying out its inherent or express
right to discipline employees, must do so in a manner that is not
unreasonable, arbitrary, capricious, or discriminatory.” Indiana
Convention Center and Plumbers and Steamfitters Union, Local 400,
98 LA 713, 719 (1992). In discipline and discharge cases, most
arbitrators assume that certain offenses, if proven, warrant
immediate discharge (e.g., theft, gross insubordination, violence
in the workplace), while others generally require progressive
discipline (e.g., performance issues, routine safety matters,
attendance issues).
Arbitrators also frequently address the following seven
questions when evaluating a claim that challenges discipline:
(1) Did the employer forewarn the employee of the disciplinary
conse-quences of the employee's misconduct?
(2) Was the employer’s rule reasonably related to the orderly,
efficient, and safe operation of the employer’s business?
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-3
(3) Did the employer, before administering discipline, make an
effort to discover whether the employee violated the employer’s
rule?
(4) Was the employer's investigation conducted fairly and
objectively?
(5) During the investigation, did the employer obtain
substantial evidence that the employee was guilty as charged?
(6) Has the employer applied its rules, orders, and penalties
evenhandedly and without discrimination to all employees?
(7) Was the degree of discipline administered reasonably related
to (a) the seriousness of the employee’s proven offense, and (b)
the record of the employee’s service?
In non-discipline cases, there are many ways an arbitrator may
attempt to be “fair.” Arbitrators may interpret a contract in light
of the law to avoid invalid contracts. Shook, Inc., 87 LA 1221,
1226 (Hayford, 1986) (parties are presumed to have entered into a
valid contract). They may interpret a provision against the party
that selected the language. Georgia-Pacific Corp., 87 LA 217, 221
(Cohen, 1986). Arbitrators may cite the covenant of good faith and
fair dealing as support for their interpretive decision.
Steelworkers Local 4264 v. New Park Mining Co., 273 F.2d 352,
356-57 (10th Cir. 1959). Arbitrators may also apply the fair
bargain concept to avoid harsh results, or even apply reason and
equity to determine the result. See Sharon Steel Corp. v. Chase
Manhattan Bank, 691 F.2d 1039, 1051 (2d Cir. 1982) (applying fair
bargain to advance marginal interest of both parties instead of the
major interest of only one); Clean-A-Rama, 99 LA 370 (Concepcion,
1992) (finding interpretation in line with logical and realistic
reading of contract should prevail). Finally, if an agreement is
susceptible to two constructions, an arbitrator may be inclined to
adopt the construction that avoids forfeiture. City of Marion,
Ohio, 91 LA 175 (Bittel, 1988).
B. Collect and review various documents before conducting
interviews.
Documentation is critical. Most cases are won or lost on the
strength of documentation. If it comes down to management's word
versus the employee’s, most arbitrators will give the employee the
benefit of the doubt (particularly in discipline cases, where
management has the burden of proof). Therefore, proper
documentation may not only prove the offense but can prove the
thorough and objective nature of the employer’s investigation.
Documentation should establish: who; what; when; where; why; and
how. Likewise, investigation notes should show the date, time, and
place of meeting; who is the author of the notes; who was present;
what each person said; and include a reference to any documents or
other evidence obtained or exchanged (to make sure these are
preserved).
For alleged violations of a specific contract provision, the
Company should investigate to be sure it understands both the
contract and the grievance. The Company should carefully question
the union to ascertain its specific objection to the Company’s
action under the contract. The Company should collect the grievance
and all related correspondence, applicable collective bargaining
agreements, relevant side letters, bargaining notes, and other
similar documents. See Department of the Air Force, 114 LA 1351
(Richard, 2000) (admitting contemporaneous counseling and meeting
notes).
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-4
For disciplinary grievances, the Company should gather documents
that confirm communication/publication of the policy (and hence
employee knowledge — actual or implied), evidence the procedure or
practice allegedly violated, and demonstrate the employee had
knowledge of the consequences of the violation. Relevant documents
might include: applicable collective bargaining agreements;
relevant side letters; correspondence; work rules; employee’s
personnel file; employee’s prior discipline (if not in personnel
file); similar discipline of other employees in bargaining unit
(last 3 years if possible); any relevant video (e.g., security
camera) or photographs; if prospective discipline/termination is
for poor performance, documents showing performance standards and
employee's actual performance; if prospective
discipline/termination is for misconduct, the rule that was
violated; if prospective discipline/termination is for attendance,
the attendance policy and a chronological list of employee’s
attendance and related progressive discipline; if lack of training
is an issue, documents of training programs the employee has
attended and sign-in sheets and/or tests; and prior decisions or
arbitration awards on the same or similar issue.
While the parol evidence rule is frequently applied in
arbitration cases, there are exceptions to it, and it does not
cover all writings. See Spartan Stores, 105 LA 549 (Kanner, 1995)
(considering extrinsic evidence of past contract language and
negotiations where provision was found ambiguous, despite
collective bargaining contract’s clause which stated that
agreements and past practices other than those referenced in the
contract were not binding on the parties); Dayton Walther Corp., 96
LA 570, 572 (Wren, 1991) (arbitrators are liberal in allowing
testimony on contract negotiation). Therefore, the Company should
gather prior collective bargaining agreements involving the
disputed language, bargaining notes related to the dispute,
relevant side letters, Memoranda of Understanding between the
Company and the union relevant to the disputed issue, and any other
documents related to prior interpretations or past practices
regarding the contract clause or issue in dispute.
The Company should also collect any handbooks or bulletins, as
those may aid an arbitrator in interpreting any ambiguous
contractual language. See Furniture Workers Local 395 v. Virco
Manufacturing Corp., 257 F. Supp 138 (E.D. Ark. 1966) (considering
pamphlet); Central Hudson Gas & Elec. Corp., 101 LA 894,
899-900 (Eischen, 1993) (considering company memorandum); Florida
State Univ. Bd. Of Regents, 99 LA 425, 427 (Goggin, 1992)
(considering handbooks). Likewise, the Company should collect
management and Human Resources/Labor Relations (HR/LR)
investigation notes, any documents produced to the union, and any
prepared charts of work flow (if applicable), because those
documents may either affect the interpretation of the contract, or
help the arbitrator to understand why the contract contains certain
language and the operative meaning of that language.
C. Identify relevant witnesses.
HR/LR should coordinate the investigation with management, and
whenever possible, the primary investigator should be accompanied
by another management “witness.” No manager should take
disciplinary action against an employee before talking with
HR/LR.
Someone with in-depth knowledge of the labor contract and the
bargaining unit should participate in the investigation. The
employer should interview affected employees (including the
employee subject to discipline, if applicable) early in the
process, unless there is good reason for delay.
During the interview process, the employer should interview all
witnesses named by the union and/or employee raising the grievance.
Interviews should be conducted with all potential
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-5
witnesses, regardless of the position they might support.
Follow-up interviews or meetings may be necessary with some
witnesses, including the aggrieved employee(s). The amount of
investigation necessary will depend on the number of witnesses, the
strength or weakness of the case, the seriousness of the alleged
contract violation or potential discipline, and the likelihood that
grievance will be escalated to arbitration.
D. Conduct a focused and fair investigatory interview.
The style of conducting an investigatory interview is very
important. The interview should begin by stating the purpose of the
meeting or interview, and by asking open-ended questions. Listen
carefully to the answers, and ask follow-up questions as
appropriate (who, what, when, where, why and how?). Then, the focus
of the inquiry should be narrowed in an effort to obtain all
relevant information. Always research the collective bargaining
agreement and any relevant rules, policies, and past treatment for
similar offenses beforehand, because this might impact your
follow-up questions.
Establish and maintain control of the interview throughout. Be
firm when necessary, but remain calm. Do not be baited by the
employee or the witness, and do not allow the interview to turn
into an adversarial contest. Go in with an open mind, and allow the
employee to tell his/her story. Deny accusations of unlawful motive
or contract violations if raised by the employee or witness
(without getting into an argument). Acknowledge rights raised by
the employee, and do not be side-tracked by the witness. Save any
physical evidence that may be collected, and finally, always
remember the importance of the perception of fairness. Finally,
carefully document what was said and observed during the meeting or
interview.
E. Ensure consistency of treatment.
When evaluating disciplinary grievances, arbitrators look not
only to see if the level of discipline is appropriate (if “the
sentence fits the crime”), but also whether that level of
discipline has been applied consistently to other employees in the
past. From the arbitrator’s viewpoint, consistent treatment of
employees promotes fairness because it: (1) informs employees of
what will happen if they violate the rule, and (2) ensures
management does not discriminate or play favorites. Fairness
demands that like cases be treated alike. Therefore, with limited
exceptions, disciplinary treatment should be consistent across all
shifts, units, departments, and classifications. A corollary is
that cases which are different should be distinguished and treated
differently.
F. The Union’s role in investigations and Weingarten rights.
The union has a right to participate in certain pre-disciplinary
investigatory meetings, at the request of the employee under
investigation. See NLRB v. J. Weingarten, Inc., 420 U.S. 251
(1975). Because some collective bargaining agreements contain more
specific rights regarding employees’ rights during investigations,
the Company should be familiar with the applicable collective
bargaining agreement.
The U.S. Supreme Court’s Weingarten decision established that a
bargaining unit employee has the right to have a union
representative or other employee (i.e., a witness) present in any
investigatory meeting when the employee being investigated
reasonably believes the investigation could result in disciplinary
action. Only employees represented by a union have Weingarten
rights, and Weingarten does not apply to non-bargaining unit
employees or members of management.
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-6
There is no need to give employees notice of the right before
the interview begins. Weingarten does not give employees “Miranda
rights.” Instead, the employee needs to ask for representation, but
there are no magic words. The employee’s request only needs to put
the employer on notice of employee’s desire for representation.
Note that the employee only has to ask once, and that questions may
be sufficient (e.g., “Do I need a witness?”), and statements may be
sufficient even if unwarranted (e.g., “I want my lawyer” or “I want
my supervisor”). While the employer is not required to grant the
request for a lawyer or supervisor, it is sufficiently on notice
that the employee wants a witness.
The employee can waive the Weingarten right expressly or by
silence, but if the employee does so management should document the
waiver. The right to request a witness belongs to the employee, not
the union. A union representative cannot invoke the right (e.g.,
representative cannot go to a supervisor and say, “I want to
participate”). If the employee asks the reason for the meeting, the
employer need not provide all the details but must give enough
information for the employee to make an informed choice about
Weingarten rights.
Weingarten applies when the employee reasonably believes the
investigation may result in disciplinary action to him or her. This
includes counseling sessions that are preliminary to discipline and
fact-finding sessions if discipline could occur, even if the intent
at the beginning of the interview is not to discipline.
Weingarten does not apply to the following situations: giving
instructions; providing training or needed corrections of work
techniques that will not result in discipline; counseling sessions
where management has given absolute assurance that no disciplinary
action will arise from the meeting; and meetings called for the
sole purpose of informing employees of disciplinary action
previously decided upon.
The Weingarten representative may be a fellow employee chosen by
the employee being questioned, a union steward, or a union
representative (non-employee, paid union staffer). The
representative is the employee’s choice so long as it does not
unduly delay the investigation or discipline. If honoring the
employee’s choice would cause undue delay, the employee’s choice
can be denied so long as another witness is available.
The Weingarten witness is limited in what he/she can or cannot
do. The Weingarten witness is permitted to provide the employee
some pre-interview consultation; play “some role” and provide
“meaningful representation”; interrupt and ask for clarification of
the question; and present some limited argument and advocacy. The
Weingarten witness, however, is not permitted to: interfere,
obstruct, or disrupt the investigation; take over for the employee
by answering questions or otherwise presenting the employee’s
position during interview phase; demand that management negotiate
with the representative over the discipline; transform the
interview into an adversarial contest or hearing; instruct the
employee to remain silent or advise not to cooperate; or be abusive
to management (e.g., shout, pound the table, insult, or
demean).
II. CHECKLIST FOR EVALUATING CONTRACT INTERPRETATION CASES
A. Review all documents needed to evaluate the situation.
• Grievance and all related correspondence;
• Prior collective bargaining agreements involving disputed
language;
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-7
• Bargaining notes related to dispute;
• Relevant side letters and Memoranda of Understanding between
the Company and union relevant to the disputed issue;
• Any other documents related to prior interpretations or past
practice regarding the contract clause or issue in dispute;
• Management/HR/LR investigation notes;
• Documents produced to union; and
• Charts of work flow (if applicable).
B. Prepare a detailed Chronology.
• Prepare a detailed chronology including the date, event, and
any relevant witnesses or actors.
C. List and evaluate witnesses.
• Company witnesses and a brief statement of their involvement
in the dispute.
• Company (and union) officials who negotiated the language in
dispute.
• Decision makers involved in dispute.
• Other witnesses (including probable union witnesses and a
brief description of their expected testimony).
D. Evaluate the grievance and prepare a response in light of
rules for contract interpretation.
• Prepare a paragraph describing the dispute.
• Describe in detail (at least an additional paragraph) why the
union or employee disagrees with the Company’s interpretation of
the contract. Describe what facts the union disputes, if any,
regarding the events that led to the grievance. Even if you believe
the grievance is unfounded, pay careful attention to articulating
and understanding the union's arguments for its stated
interpretation.
• Evaluate whether to deny the grievance, sustain the grievance,
or explore ways to resolve it other than arbitration. Be sure to
consider whether the union raised the grievance timely (i.e., in
accordance with the plain language of the grievance procedure in
the contract). Also, consider the long-term consequences of taking
a particular position. Keep in mind that arbitrators will generally
use one or more of the following rules when interpreting
contracts:
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-8
1. Specific language controls general language.
2. To express one thing is to exclude another.
3. Interpret words within their context.
4. Construe the agreement as a whole.
5. Construe ambiguous language against the author.
6. Use common, not technical, meaning of words.
7. Settlement offers are not used to interpret language.
8. Use past practice if the language in the agreement is
ambiguous.
• Past practice should only be used if both parties were aware
of their practice and accept it.
• Practice must have been of sufficient duration.
III. CHECKLIST FOR EVALUATING DISCHARGE AND DISCIPLINE CASES
A. Review all documents needed to evaluate the situation.
• Grievance and any related correspondence;
• Any documents produced to union;
• Discipline/termination notice to employee;
• Management/HR/LR investigation notes;
• Witness statements;
• Documents and transcript from unemployment hearing (if
applicable); and
• Any allegations contained in administrative charges filed with
the Equal Employment Opportunity Commission, Occupational Safety
and Health Administration, or any other governmental agency.
B. Prepare a detailed Chronology.
• Prepare a detailed chronology including the date, event, and
any relevant witnesses or actors.
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-9
• Start with employees’ date of hire and include relevant dates
related to the discipline/discharge. Give more details relating to
event leading to discipline/discharge (i.e., there can be several
entries on the same date).
C. List and evaluate witnesses.
• Company witnesses and a brief statement of what they
witnessed.
• Decision maker(s) and HR/LR professional(s) advising on
decision.
• Other witnesses, including union employees and a brief
description of what they witnessed.
D. Prepare a Case Evaluation and Recommendation.
• Prepare a paragraph describing why the employee was
disciplined/discharged. Note what the employee admits, if anything,
regarding the events that led to the discipline/termination.
• Describe in detail (at least an additional paragraph) why the
union or employee disagrees with the discipline/termination.
Describe what facts the employee disputes, if any, regarding the
events that led to the discipline/termination. Even if the
grievance appears to be unfounded, pay careful attention to
articulating and understanding the employee's or the union's
arguments for opposing the discipline.
• Evaluate whether to deny the grievance, sustain the grievance,
or explore ways to resolve it other than arbitration. Keep in mind
that, in a discipline/termination case, the Company has the burden
of proof—usually a burden to establish “just cause” for the
disciplinary action.
• Keep in mind that most arbitrators find that certain offenses,
if proven, warrant immediate discharge (e.g., theft, gross
insubordination, violence in the workplace), while others generally
require progressive discipline (e.g., performance issues, routine
safety matters, attendance).
• Keep in mind mitigating factors an arbitrator may take into
account, such as the employee’s length of service with the Company,
a clean employment record, or lack of progressive discipline.
• Generally, the Company should be able to answer "yes" to all
seven of the following questions:
1. Did the employee know the rule and its consequences?
2. Is the rule reasonable?
3. Did the employee disobey the rule?
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2018 LABOR LAW SOLUTIONS
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 13-10
4. Did the Company conduct a fair investigation? (Was the
employee interviewed?)
5. Does the company have proof that the employee is guilty of
the infraction?
6. Has the rule been applied consistently?
7. Does the penalty match the offense?
IV. FINAL THOUGHTS
If you decide to deny a grievance, respond in the manner
required by the collective bargaining agreement. Evaluate whether a
detailed response is helpful. Arbitrators may look to the Company’s
response to the grievance to determine whether the Company
preserved a specific defense. If appropriate, use a response format
that provides a brief, logical, and self-serving summary of the
union’s position, the Company’s response, and objective reasoning
that supports the Company’s position.
If appropriate, explore any alternatives that may resolve the
dispute prior to formal arbitration. When in doubt, before
determining the Company’s position on the grievance, contact legal
counsel.
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PRESENTED BY:
Todd C. Duffield (Atlanta), Wade M. Fricke (Cleveland), and
Ursula A. Kienbaum (Portland (OR))
Grievance and Arbitration Strategies
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
• Contractual mechanism• Dispute resolution• Timing
considerations
– Mutual agreement?o Practice of the parties?o Assert early in
process
The Grievance Procedure
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
• Difficult job!• Need to be aligned
‒ Unions looking for weak links
• Eliminate subjective feelings‒ Objective‒ Professional
• Grass roots implementation of Company’s culture and
objectives
‒ Know the why‒ Elevator speech prepared
Leadership’s Role in the Process
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December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Union Challenges
• Respect union leadership– Street smarts– Supervisors with
fancy degrees
• Intimidation?
– Why did union file this grievance?
• Desire to partner with Company• Political issues within union•
Don’t like surprises• Member ULPs
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
The Collective Bargaining Agreement
• Know it!• Grievance Procedure
– Timing– The players– Arbitration process– Know the hot
buttons
• Setting up future negotiations
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
The Grievance
• Take it seriously• Union request for data
– Don’t wait!– If you’ll use it at arbitration, produce it
• Relevant notes only
• Answer to the Arbitrator– Not “no violation of Contract”– Show
your cards
• Encourage union to do same
– If it’s not part of your answer, it won’t be part of your
case
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December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
• Duty to furnish under Sections 8(a)(5) and 8(d) of the
NLRA)
• Presumptively relevant information conditions• Other
information union in carrying out its duties• Practice Tip: For
significant requests, employer
should request more information from union about basis for
request
Information Requests
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Past Practice
• Fills in cracks in CBA• Interpretation book• Union/management
meetings• Does your CBA have a zipper clause?• Can cut both ways•
Beware of the pick-up truck filing system!• Difference between PP
and “reasonable work
rule” changes
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Preparing for Arbitration
• REVIEW PANEL!!!• Two kinds of cases• Disciplinary case• Breach
of CBA• Significance:
– Burden of proof• Discipline – Company• Breach of CBA –
Union
– Who goes first• Discipline – Company• Breach of CBA –
Union
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December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Discipline Case
• Seven Steps to Just Cause1. Did employee know of rule
violated?
2. Is the rule reasonable?
3. Proper investigation?
– Timely– Suspension pending investigation?
4. Investigation fair and thorough?
– Who?– What?– Where?– When?
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Discipline Case
• Seven Steps to Just Cause– Interview all witnesses– Interview
employee to be disciplined– DOCUMENT– Gather evidence
5. Does Company have adequate proof?
6. Even-handed application of the rules (yes – the big type is
intentional)
7. Does the penalty fit the crime?
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Breach of Contract Case
• Most important – what does the CBA say???• If not clear:
– NEGOTIATION NOTES MATTER!• Order of proposals
– Vague language held against drafter of language– Party can’t
get through arbitration that which it didn’t get
through negotiations
– How has the language been applied?• Union waiver
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December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Preparing for Hearing
• Understand the facts• Understand possible defenses/arguments
(use Elkouri to help
outline a strategy)
• Contract interpretation cases:– Relevant contract language,
bargaining history, past practice,
business justification, and degree of “harm” to the bargaining
unit
• Discipline and discharge cases:– Nature of offense, disputed
facts, progressive discipline,
employment history, consistency of treatment of similar
offenses, procedural regularity/due process, and (if not obvious)
explanation as to why this offense is so significant
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Preparing for Hearing
• Witnesses– Early involvement in case preparation
• Ensures no last minute surprises• Gets story recorded early to
avoid fading memory• Gets them invested in your side
– Preparation for testimony• Share “theories” of the case – let
them help you• Prepare them to be able to “teach” the arbitrator•
Get them ready for cross-examination (essential to know the
other side’s story)
• Make sure they know how to “protect” their side of the story,
without looking argumentative or difficult
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Preparing for Hearing
• Witnesses, cont.• Subpoenas
– Can request from arbitrator for represented or adverse
witnesses• Interviews
– Must give Johnny’s Poultry warning before speaking with any
represented employee • Consider acknowledgment for employee to sign
beforehand
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December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Presenting the Case
• Be sensitive to relationships– Union counsel with arbitrator–
Union reps and employees with your local management
team
– In a small club, it seldom pays to be a jerk
• Follow local customs– Joint exhibits, stipulations of issues
(and other
undisputed items), reservation of damages issues
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Presenting the Case
• Focus on “teaching” the arbitrator– Use openings to frame the
issues idea– Give the arbitrator the information he or she needs
to
decide the case
– Let your witnesses look good and credible
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Presenting the Case
• Effective cross-examination in arbitration– Distinct skill
from typical trial cross-examination– No depositions or other
statements that tie adverse
witnesses down
– More subtle approach:• More charm required• Get them to be
cooperative• Pin down with facts they can’t or won’t contest•
Highlight logical or factual inconsistencies from their direct
testimony
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December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Briefing
• Overview, relevant CBA provisions• Fact statement, with
critical detail • Argument
– Remind of burdens of proof– Cite Elkouri and use the accepted
elements set forth (most
good arbitrators will look to it)
– Cite other arbitral authority (BNA, CCH, unpublished awards)
and attach copies of key awards
– Address the union’s arguments
• Don’t go overboard with attacks
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
Grievance Settlements
• Common ground to get to cultural change• Must be in writing•
Most often should state “without precedence or
prejudice to any other matter”
• Confidentiality– Not worth much
• Last chance agreements– Very effective to tee up termination
for chronically-
difficult employees
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
A Step Back – Cultural Change Opportunities
• Creating a collaborative change culture with the union
through:– Monthly union management meetings– Interpretation books–
Grievances– Negotiations– “You start negotiating your next contract
the day after
the last one is signed”
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December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
A Step Back – Creating the Change
• Union/management meetings– Create business case of why we need
to change
something
– Have conversation with union leadership
• Interpretation book– Should be gift you give to next HR/Ops
leader – Notes from union management meetings attached to
provisions of contract
December 5-7, 2018 – Waldorf Astoria Las VegasLabor Law
Solutions: Practical Solutions for Today’s Workplace
A Step Back – Grievances as an Opportunity
• Grievances as opportunity to change/enhance culture
• Lack of collaborative culture– Grievances– Arbitrations– NLRB
charges– Slow-downs– Sick-outs
PRESENTED BY:
Todd C. Duffield (Atlanta), Wade M. Fricke (Cleveland), and
Ursula A. Kienbaum (Portland (OR))
Grievance and Arbitration Strategies
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Ursula A. KienbaumShareholder Portland (OR)503-552-2171
[email protected]
Admitted to PracticeOregon
Washington
U.S. District Court, District of Oregon
EducationJ.D., Northwestern School of Law of Lewis
and Clark College, 2004
B.A., University of Montana, 1998
Ursula Kienbaum has spent her entire legal career representing
and counseling employers in
traditional labor and employment law matters. Specializing in
traditional labor relations, particularly in
the manufacturing, food processing, waste disposal, and
telecommunications industries, Ursula
represents employers in representation and decertification
proceedings, union campaigns, strike
preparation, contract administration, and labor arbitrations.
Ursula also has significant experience
investigating and responding to unfair labor practice charges
before the National Labor Relations
Board.
In addition, having a broad background in employment law, Ursula
routinely assists clients with
day-to-day employment issues (discipline, discharge, and wage
and hour issues), and has experience
defending employment harassment, discrimination and retaliation
claims before state and federal
courts and the Oregon Bureau of Labor and Industries. Ursula
also has experience representing and
advising clients regarding independent contractor
misclassification issues, including audits with the
Oregon Department of Labor and the Oregon Employment Department.
Recognized as an Oregon
Super Lawyers Rising Star from 2012-2014, Ursula greatly values
the strong relationships that she builds
with her clients.
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Wade M. FrickeShareholder Cleveland216-357-4732
[email protected]
Admitted to PracticeOhio
EducationJ.D., Washington and Lee University, 1989
A.B., Princeton University, 1984
Wade Fricke has practiced management-side labor and employment
law since 1989. He was one of
three attorneys who founded the Cleveland office of the firm.
Prior to joining the firm, Wade was a
partner in Cleveland’s oldest law firm, and before that, he
worked for the Cleveland office of a national
full-service law firm.
Wade represents companies of all sizes across the country in
virtually all aspects of employee relations
in union and non-union settings. In both settings, Wade’s
practice focuses on issue avoidance and
positive employment practices. In union settings, Wade has
extensive experience in contract
negotiations and, where necessary, grievance resolution and
arbitration, and strike management and
resolution. His experience in non-union settings includes
extensive employment relations auditing,
supervisor training, union representational election work,
drafting and reviewing employee handbooks
and work rules, sexual harassment and other training, and most
aspects of preventative-maintenance
labor and employment counseling regarding state and federal
regulation of the workplace.
Wade’s employment counseling experience includes practice before
the Ohio Civil Rights Commission,
the Equal Employment Opportunity Commission, the Department of
Labor and the National Labor
Relations Board.
Wade is one of eight attorneys serving on the steering committee
of the firm’s 125-plus member
Traditional Labor Practice Group.
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Todd C. DuffieldShareholder Atlanta
404-870-1701
[email protected]
Admitted to Practice
Georgia
New York
Education
J.D., with honors, University of Pittsburgh
School of Law, 1999
B.A., Brigham Young University, 1995
Todd Duffield is a shareholder in Ogletree's Atlanta office. His
practice focuses on representing employers in all
aspects of labor and employment law, including counseling,
labor-management relations, employment and
restrictive covenant litigation.
Todd is a trusted advisor and regularly counsels corporate
executives, in-house legal counsel, and human
resources leaders on matters such as risk management; labor
relations; restrictive covenants; workforce
planning (including workforce growth and reductions in force);
labor and employment issues pertaining to
corporate mergers, divestitures, and other transactions;
employee recruiting and hiring practices; leaves of
absence; workplace accommodations; and employee discipline and
termination.
Todd also represents and defends employers before administrative
agencies (including the National Labor
Relations Board, the National Mediation Board, the National
Railroad Adjustment Board, the Equal Employment
Opportunity Commission, and the U.S. Department of Labor) and in
state and federal courts throughout the
country. Todd has defended clients in single and multi-plaintiff
employment disputes involving allegations of age,
race, national origin, sex and disability discrimination,
breach-of-contract claims, and whistleblower claims. Todd
also has extensive experience representing both plaintiffs and
defendants in disputes involving non-competition,
non-solicitation of customers, non-recruitment of employees and
non-disclosure agreements as well as disputes
involving trade secrets, tortious interference with business and
contractual relations, breach of fiduciary duty, and
breach of the duty of loyalty.
As a member of the firm’s Traditional Labor Practice Group and
co-chair of the Airline and Railroad Practice
Group, Todd’s practice encompasses advising employers about
their obligations under the National Labor
Relations Act and Railway Labor Act, collective bargaining,
grievances and arbitrations, and all forms of
counseling regarding union and employee relations.
Todd serves as an editor to several authoritative labor law
treatises; has published numerous articles on labor
and employment subjects; is a frequent lecturer at labor and
employment seminars, bar association meetings,
and client seminars on labor and employment law issues. Todd
also presents in-house compliance training for
senior executives and human resource managers.
Todd is an active member several American Bar Association
committees, currently serves as the management
co-chair of a regional subcommittee of the ABA Labor &
Employment Section’s Committee on Practice and
Procedure Under the NLRA, serves as a leader in the Boy Scouts
of America, is involved in humanitarian relief
efforts, spent two years as a missionary in the Caribbean and is
fluent in Spanish.
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Utah
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