At the recent Southeast Regional meeting of the National Academy of Arbitrators, Peer & Gan's Michael Gan played a neutral arbitrator in a mock arbitration program directed by Jay Goldstein, NAA, Rick Reilly, and Linda Byars, NAA.
(from left to right: Norman Quandt, Management Attorney, Ford & Harrison; Michael J. Gan; Frankie Sanders, APWU; Jay Goldstein, Arbitrator)
The following article, by Martha Pedrick, J.D., is reprinted from CCH Online (CCH Incorporated), Mar 1, 2005:
Arbitrators, advocates exchange ideas in mock arbitration at NAA meeting
Mile High Airlines Captain Eyrgrl, who was discharged for making negative comments about Mile High management and threatening its president at a Yahoo web site using a company-provided email account, appeared before a 3-person arbitration panel with her union attorney and a private attorney. The mock arbitration was the centerpiece of the Annual Meeting of the Southeast Region of the National Academy of Arbitrators, on February 25-26, in Atlanta, Georgia. Reversing their “real life” roles for purposes of the mock arbitration, Andrew Brenner, attorney in the Atlanta office of the Air Line Pilots Association, appeared as counsel for Mile High, and Kevin Rachel, manager of collective bargaining and arbitration for the United States Postal Service, appeared as counsel for the union. Also reversing their real life roles, arbitrators were Michael Gan, union attorney and partner in the Washington DC office of Peer & Gan, LLP; Norman Quandt, management attorney and partner in the Atlanta office of Ford & Harrison, LLP; and Frankie Sanders, Southern Region Coordinator of the American Postal Workers Union. Making a cameo appearance, Vella Traynham, Director of the Office of Arbitration Services of the Federal Mediation and Conciliation Service, appeared as a Vice President of Mile High.
Procedural and substantive issues explored. Throughout the course of the arbitration, conference attendees were asked to discuss and “rule” on issues as they arose before the arbitral panel ruled. Issues discussed included whether the private attorney could be permitted to participate in the hearing; what inference should be drawn from management’s refusal to comply with the union’s subpoena for all management internet postings; whether any distinction should be made between the grievant’s misuse of company property and gaining access to a public chat room by any means available; whether to allow evidence that the grievant carried a gun, which was not specifically included in the grievant’s termination letter; effect of participation of a partisan Arbitration Board member; whether management should be allowed to call the grievant as its first witness; and the nature of the requested remedies.
Advantages of arbitration highlighted. In a session moderated by Arbitrator Elizabeth Wesman, advocates discussed some of the “real” reasons for bringing a case to arbitration. According to Lesley Troop, union advocate and partner with Nakamura, Quinn & Walls, Decatur, Georgia, cases involving “embarrassing or unsavory facts” are well-suited to arbitration because of the privacy arbitration affords. When the merits of the underlying grievance are questionable, it is often wise to arbitrate to create a record in the event of a subsequent Title VII case. Arbitration also offers an opportunity to “save face” with respect to the decision that was made, management advocate James Kilcur, Vice Chair of the Labor & Employment Group at Saul, Ewing LLP, Philadelphia, observed.
According to Judy Robertson, Staff Representative of the Communications Workers of America, arbitration can be a strategic decision, especially for new unions, because it demonstrates the union’s willingness to fight for its members. Other reasons to arbitrate, James Wimberly, Jr., management attorney and principal, Wimberly, Lawson, Steckel, Nelson & Schneider, PC, in Atlanta, noted, include wanting the issue decided before negotiations begin and, in the case of a pending NLRB or EEOC proceeding, arbitration can be helpful in the parallel proceeding.
NAA annual national meeting announced. NAA President George R. Fleischli addressed proposals under consideration that would create divisions to present programs at divisional meetings. He also announced the NAA’s annual national meeting on May 25-28, in Chicago. It will be held in conjunction with the FMCS Midwest Arbitrator’s Symposium, co-sponsored by FMCS and the Chicago-Kent College of Law, on May 25. Sessions at the NAA meeting will feature discussion of work and family conflict in the unionized workplace led by Dr. Joan Williams, employer neutrality and card check; and workplace violence.
Agency updates provided. L’Tanya-Keith-Robinson, Vice President of the Southeast Case Management Center for the American Arbitration Association, reported on the number of labor arbitration cases filed in 2004 in the various AAA labor offices. Although the 12,542 cases filed was a slight decrease from the total filed in 2003, she noted that 54 percent more cases were closed in 2004 than 2003. She also distributed a chart of arbitrator per diem rates. The average per diem falls in the $800-$899 range.
One of the biggest changes made in 2004 was in procedures for labor arbitrations, including the establishment of a “Solutions Manager” who will deal with the parties throughout the prosecution of the case. Other changes include using the postmark or date of a fax/email transmission as the date when an award will be considered to have been rendered; and allowing for the direct transmission of nonsignificant evidence not produced at the hearing to AAA.
Vella Traynham reported that FMCS has begun issuing panels for parties regarding teacher and employee suspensions, removals and transfers in response to the new Alabama education legislation. Provided the arbitrator has given FMCS an “Arbitrator Update” indicating that he or she has experience in “employment law,” the arbitrator’s name may be randomly selected for panels of 7 arbitrators that are submitted to the parties. The Alabama Tenure and Fair Dismissal Guidelines for Arbitrators were distributed. Traynham reminded everyone to update their bios, making sure that they are accurate and clearly and concisely indicate fees and expenses. If secretarial charges are not included in the per diem rate, the fee statement must inform the parties that they will be charged these expenses.
