Guides for Labor Arbitration [Reprint 2016 ed.] 9781512820461

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GUIDES

FOR

LABOR

ARBITRATION

Published for the

LABOR RELATIONS

COUNCIL

of the

WHARTON SCHOOL OF FINANCE AND COMMERCE by the

UNIVERSITY

OF

PENNSYLVANIA Philadelphia 19 5 3

PRESS

CONTENTS CHAPTER

PAGE

Preface Pre-Hearing Considerations 1. 2. 3. 4.

iii 1

Disclosure of Prior Relationships Reaching An U n d e r s t a n d i n g Regarding Compensation T h e Presence of Counsel T h e T a k i n g of a Stenographic T r a n s c r i p t

5. Setting t h e T i m e a n d Place for the Hearing

The Conduct of the Hearing

2

3

1. Establishment of Procedures 2. T h e Swearing-in of Witnesses

:} 3

3. F r a m i n g t h e Issue

4

a. By Stipulation or W r i t t e n Submission b. W h e r e t h e Parties Cannot Agree upon

1 1 I I

4 the Issue to be Arbi-

trated

4

c. W h e r e O n e Party Contests the Arbitrability of the Issue

4

d. New Problems Arising D u r i n g t h e Hearing

5

e. W h e r e O n e Party Refuses to Participate

5

f. W h e r e t h e Aggrieved Party Seeks to W i t h d r a w the Case

6

4. Controlling t h e Conduct of t h e Parties 5. Limitation on T i m e for Presentation and on Relevancy of Testimony

6 fi

6. T h e Acceptability or Authenticity of Evidence

7

7. T h e Problem of Controverted Evidence

8

8. T h e Problem of Refusal to Supply Witnesses or Evidence

8

9. T h e Protection of Witnesses

9

10. Reference to Offers a n d C o u n t e r Offers Made in Collective Bargaining

9

11. Use of Evidence f r o m Earlier Grievance Steps

10

12. Inspection of P l a n t or Place of Business

11

13. Responsibility of A r b i t r a t o r to Complete His Assignment

II

14. Participation by A r b i t r a t o r in the H e a r i n g

11

15. Deflation of

12

Claims

16. A d j o u r n m e n t a n d Setting New H e a r i n g Dates

Post-Hearing Matters 1. Post-Hearing

Briefs

13

13 13

2. Giving a n O r a l Award

14

3. T h e O p i n i o n a n d Award

14

4. Expressing Personal Views

14

5. I n t e r p r e t a t i o n of Award

15

6. Request for Reconsideration o r R e o p e n i n g

15

7. T h e Binding N a t u r e of t h e Award

15

[»]

PREFACE T h e primary task of the labor arbitrator, both in grievance cases and in new contract issues, is to find an answer on the merits to a dispute not resolved by direct negotiation prior to arbitration. For most issues which "go to arbitration" there are no general guideposts. T h e applicable labor agreement terms, the facts of the particular case, the persuasiveness of the parties, and the best judgment of the arbitrator are the mix out of which emerges the decision. There are, however, many related questions concerning the ethics, procedure, and conduct of the arbitrator, and of the parties, which arise from time to time in the course of the proceedings. T h e soundness and the acceptability of a decision may depend in no small measure on how these related matters are handled. Beginning in 1948, a group of arbitrators in the Philadelphia area have met informally at dinner meetings for social purposes and to discuss their common interests. At an early meeting, someone suggested the worthwhileness of preparing a list of questions arising in arbitration proceedings which have no direct relationship to the merits of the dispute but which are perplexing and important to the proceedings. On the basis of such a list—it was a long one—an agenda was prepared. This agenda has been the subject of group consideration over a period of about three years. Points of view about each subject were widely divergent at the beginning of discussion. In each instance, however, a "sense of the meeting" gradually emerged. T h e meeting of minds was formalized in writing by a drafting committee and approved at subsequent meetings. T h e material following in this report represents a condensation and coordination of these various group conclusions, carefully worked out by drafting committees and approved by the group. In the course of the discussions it was found that differences of opinion on particular topics arose out of differences between the type of situation in which there is a permanent umpire, or arbitrator, and that in which the arbitrator is appointed ad hoc. It was agreed by the group that in this report the discussion should be uniformly in terms of ad hoc arbitration. T h e reader should be continually aware, however, that the "permanent" setup frequently requires and permits different kinds of procedure and personal relationships, owing to the fact that the participants in such a setup can presumably refer to and draw upon a past history of relationships among them and an accumulation of "common law" in the situation. [in]

T h i s informal activity of the Philadelphia group was but one of many related inquiries. Groups in other cities have met for similar purposes. On a national basis, the most ambitious program has been the joint endeavor of the American Arbitration Association and the National Academy of Arbitrators which culminated in the publication in 1951 of the Code of Ethics and Procedural Standards for Labor-Management Arbitration. T h e Code has been approved by both organizations and by the Federal Mediation and Conciliation Service. T h i s group report is not to be considered as a variant from the Code. Members of the Philadelphia group participated in the drafting of the Code and subscribe to it. T h e present report has been drafted primarily because the scope of the Philadelphia inquiry was somewhat broader than the intent and purpose of the participating organizations in drafting the Code. While some overlapping exists, we believe that there are enough additional conclusions presented to warrant issuance of Guides for Labor Arbitration for consideration by those persons interested in this method of resolving labor disputes. Although Guides for Labor Arbitration is completely a collective product, the reader is entitled to know the identity of the members of the group. They are listed below. While no one person was more responsible than any other for the conclusions reached, some of the collaborators attended most of the sessions over the three-year period in which the discussions took place. T h e list which follows is, however, inclusive. It contains all the participants who joined in as many as three or four of the discussions, and thus made a significant contribution. JOHN R .

ABERSOLD

S . STANLEY ALDERFER

WILLIAM N. FRANK C .

LOUCKS

PIERSON

G . J A Y ANYON

WALTER M .

JOSEPH B E L L

JOSEPH A .

POWELL

RAFFAELE

J O S E P H BRANDSCHAIN

HERBERT W .

G . ALLAN DASH, J R .

JOSEPH F .

ALEXANDER H . F R E Y

JOHN W .

SYLVESTER GARRETT

R A Y M O N D S. SHORT

LEWIS M .

GILL

ROGERS

ROSENTHAL SEYBOLD

WILLIAM E.

SIMKIN

MORRISON HANDSAKER

ROBERT H .

SKILTON

J . HAZEN HARDY, J R .

GEORGE W .

TAYLOR

JOHN PERRY HORLACHER

HOWARD M . T E A F , J R .

W I L L I A M KARPINSKY

L. REED TRIPP

T H O M A S KENNEDY

R U D O L F VOGELER

BERT W .

[iv]

LEVY

GUIDES

FOR

LABOR

ARBITRATION

PRE-HEARING CONSIDERATIONS 1. D I S C L O S U R E O F P R I O R

RELATIONSHIPS

If an Arbitrator has had a close relationship with either of the parties to an arbitration case, or has financial connections with either, no matter how remote they may be, such facts should be fully disclosed prior to accepting a p p o i n t m e n t as Arbitrator. If, after submission of the facts of such relationship, b o t h parties agree that he should accept the case, the A r b i t r a t o r must use his j u d g m e n t as to the desirability of doing so. H e should bear in m i n d that his conduct should be such as to throw n o shadow upon the arbitration profession or detract f r o m the arbitration process. In this connection he should consider not only the question of his own bias but also the likelihood that, because of some prior association, he m i g h t be deemed by others to be biased. 2. REACHING

AN

UNDERSTANDING

REGARDING

COMPENSATION

It is preferable that details as to charges and expenses should be discussed and decided in advance of the hearing, so that both sides will know what their financial commitments are. An Arbitrator whose fees are on a per diem basis should be especially careful not to accept an assignment which may be time consuming if there is question as to the capacity or willingness of one or b o t h of the parties to incur the expense involved. 3. T H E

PRESENCE OF

COUNSEL

Care should be taken, in advance of the hearing, to assure that b o t h parties are cognizant of the m a n n e r in which the other party will be represented at the hearing. If one side plans to be represented by counsel, this fact should be m a d e known to the other side in order to afford a like opportunity, if it is desired. 4. T H E

T A K I N G OF A STENOGRAPHIC

TRANSCRIPT

Unless the contract or arbitration submission specifies to the contrary, either party has the right to make a stenographic record of the hearing, regardless of the other party's objection. However, this is only true if such record is not submitted to the Arbitrator. In the event the record is to be so submitted, the A r b i t r a t o r has

[1]

the right to require that the opposing party shall be given access to the written record and permitted to make comments on its accuracy, or that a copy shall be provided to such party, again with the opportunity to comment thereon. While a stenographic record may be necessary in some states or under some circumstances so that an award will be enforceable at law, such records are not desired in many arbitration relationships and the pertinent facts are simply noted by the Arbitrator in whatever fashion he may find most convenient. If the testimony promises to be voluminous, or technical, so that the Arbitrator feels it unwise or unduly burdensome to rely solely upon'his own notes, he may quite properly order the taking of a stenographic record. Under such circumstances, or when the parties have agreed on the taking of a record, an impartial outside agency is usually engaged, and the costs are shared. If possible, an understanding should be reached prior to the hearing on the matter of whether or not a transcript of the hearing shall be taken. A transcript may prove to be costly, and if costs are to be shared, one side may be obliged to curtail its testimony in the interests of economy, while the other might be inclined to prolong the case in order to discourage future arbitration proceedings. 5 . S E T T I N G T H E T I M E AND P L A C E F O R T H E

HEARING

Unless the parties have otherwise agreed, it is the responsibility of the Arbitrator to set the time of the hearing so that neither side is unduly inconvenienced, either with respect to other obligations and plans that the participants may have, or in connection with the effect of the passage of time upon the issues in the case itself. It is generally customary to arrange for a prompt hearing of discharge cases, for example, because of the possible back-pay liabilities a company may incur. In like manner, the location of the hearing may be significant. There may be important reasons why it should be held near the plant, so that witnesses will be readily available at no great cost to either side. Or it may be necessary or desirable to arrange a hearing place in a location which would minimize the prospects of interruption such as might occur in the case of an in-plant location. T h e parties' wishes should govern in these matters unless they cannot agree, in which case the Arbitrator has the authority to order the parties to convene, subject to the giving of due notice.

[2]

THE CONDUCT OF THE HEARING 1. ESTABLISHMENT

OF

PROCEDURES

T h e fact that the arbitration machinery is of the parties' own making suggests that they should be asked what hearing procedures they wish to follow. If the parties have no preferences, or if they disagree as to procedures, it is then up to the Arbitrator to establish whatever rules or procedures he may deem advisable. He need not follow or be bound by precedents or judicial procedures unless the parties so instruct him. This is especially true of the rules governing examination and cross-examination. An atmosphere of informality is usually more conducive to getting at the facts and will promote, rather than detract from, good collective bargaining relationships for the future. While some parties prefer hearings which observe the formalities of the courtroom, for the most part collective bargaining relationships have matured to the point where such formalities are out of place. It is customary for the Arbitrator to "set the stage" so far as procedures are concerned. This is usually done by a brief introductory statement explaining the manner in which the hearing will be conducted. T h e Arbitrator should strive to put the parties at their ease, making it clear that the basic objective of any set of hearing procedures is to afford the parties a full and fair opportunity to be heard. 2.

THE

SWEARING-IN O F

WITNESSES

T h e practice with respect to the swearing-in of witnesses varies. T h i s procedure may tend to impress the witness with the significance of the occasion, but it may also introduce an atmosphere of formality which may tend to inhibit discussion or unduly prolong the proceedings. Where swearing-in can be avoided, many Arbitrators will not require it except at the parties' request. Some state laws require the swearing-in of witnesses in order to produce a record which will stand in court. Arbitrators may then find it possible to swear en bloc all those who may participate in the hearing, unless there is a legal requirement that the oath be given to each participant separately at the time he is called upon to testify. If testimony is developed through sworn witnesses in an unduly time-consuming manner, the Arbitrator

[3]

may be able to get parties to agree on a statement containing the uncontroverted facts, in order to narrow the issues in dispute and focus the testimony upon the pertinent issues still unresolved. 3 . FRAMING THE ISSUE

a. B y Stipulation or W r i t t e n Submission. Frequently issues coming to arbitration are poorly defined. T h e Arbitrator may properly seek to get the parties to reach agreement on the terms of a j o i n t submission, setting forth the precise issue to be arbitrated and, if possible, the criteria to govern the award. W h i l e this may be good procedure, the Arbitrator is not at liberty to insist upon it. In cases involving a dispute over the terms of a new agreement, however, a submission defining the issues to be arbitrated is highly desirable. W h e n the issue is set forth in a stipulation o r j o i n t written submission, the Arbitrator does not have the authority to alter the stated issue. He may properly seek the parties' assistance in clarifying or redefining the issue, or in outlining collateral issues which must be disposed of in order to determine the main issue. H e should take care to avoid stirring up a "hornets' nest" of problems not before him. H e may, in his discretion, recognize a shift in the contractual point at issue, but he may not, without the consent of the parties, undertake to decide matters which were not formally submitted to h i m . b. W h e r e the Parties Cannot Agree Upon the Issue to B e Arbitrated I n the absence of a submission agreement, the grievance or complaint of one of the parties forms the basis of the arbitration. I n such a case, if the other party does not accept the aggrieved's version of the issue in dispute, the Arbitrator will usually seek to secure an agreement as to the precise matters to be arbitrated. If it develops that the true issue is one which has not been negotiated by the parties at the grievance level, the Arbitrator may quite properly refer it back for discussion, unless the parties wish him to decide it for them. Assuming that the issue is one which has previously been explored by the parties, and failing in his effort to get the parties to agree on the definition of the matter in dispute, he must accept the aggrieved's statement of the grievance, even if the matter thus becomes abstract or inconsequential. c. W h e r e One Party Contests the Arbitrability of the Issue

[4]

If the contention is advanced that the issue brought before the Arbitrator is not properly subject to arbitration, the Arbitrator must consider and dispose of this contention. 1 His right to rule upon arbitrability is related to his duty to the parties to interpret any part of the contract, including the arbitration clause itself. Even if one party challenges arbitrability of all or part of the issue, the Arbitrator may properly proceed with the hearing if he considers it advisable and he may or may not elect to rule on the question of arbitrability before going on with the merits of the case. d. New Problems Arising During the Hearing If a new question should arise during the hearing, and if it appears to be an integral part of the original issue, the Arbitrator may properly permit its consideration and may elect to dispose of the question in his final award. However, if an entirely new problem arises which has not been through the collective bargaining procedure, it should usually be referred to the parties for further bargaining. If the parties so agree, he may decide the issue or retain jurisdiction over the issue in the event that such bargaining is not fruitful. If the question is one with respect to which prior bargaining has taken place, the Arbitrator may properly seek an agreement from the parties as to whether a ruling should be made; if they cannot agree, it is then up to the Arbitrator to do that which is in his opinion proper. e.

Where One Party Refuses to Participate

While the Arbitrator should do his utmost to prevent a disgruntled party from walking out on an arbitration hearing, or failing to show up, the hearing should nevertheless proceed ex parte (in the other party's absence) and a decision should be rendered. Testimony submitted at the hearing should then be presented to the other party for such refutation or comment l T h e law with respect to the authority of the Arbitrator to rule on matters pertaining to his jurisdiction is not as clear as those who are concerned with this problem would like it to be. Parties have resorted to the c o m t s to seek review of Arbitrators' findings with respect to arbitrability and courts have sometimes sustained the contention that an Arbitrator had no right to assume jurisdiction over particular questions. However, these developments do not relieve the Arbitrator of the necessity of making such findings and acting upon them. In the overwhelming number of instances, his conclusions will be accepted by the parties without resort to litigation.

[5]

as it may care to make, and a reasonable time should be allowed for this purpose. If a reply is received it must, of course, be made available for the comments of the initial party. In the event of an ex parte hearing the Arbitrator should take care to ascertain all the pertinent facts which may be elicited by asking those questions which might have been raised by the absent party. /. Where the Aggrieved Party Seeks to Withdraw the Case The aggrieved party is usually free to withdraw a case from arbitration at any point prior to the hearing. If both parties so agree, a case may be withdrawn from arbitration at any time during the hearing or prior to the award, just as both parties may agree to set aside the Arbitrator's award if they so desire. If the aggrieved party wishes to withdraw a case from arbitration once the Arbitrator has assumed jurisdiction and the hearing has commenced, and if this withdrawal is opposed by the other party, the Arbitrator has it within his authority to determine whether to permit the withdrawal of the case or to render a decision on its merits. 4 . CONTROLLING THE CONDUCT OF THE PARTIES

During the hearing the Arbitrator is obligated to exert his utmost efforts to prevent or suppress any kind of manifest impropriety, whether in actions or words. This includes browbeating and harassment of witnesess, as well as abusive testimony and disorder. When a hearing tends to get "out of hand" the Arbitrator may require all questions to be transmitted through him. On the other hand, however, arbitration hearings need not be as formal as in the courtroom, and the language and behavior of the witnesses, as well as of all other participants, should be subject to censure only if there is evident intention to offend or to achieve improper results through such conduct. 5 . LIMITATION ON T I M E

FOR PRESENTATION AND ON

RELEVANCY

OF T E S T I M O N Y

The acceptability of the final award will be determined, to a substantial degree, by the parties' reactions to the Arbitrator as they observe him at the hearing. One of the ways to win acceptability for the award is to be patient in hearing all that both sides want to present. Each party should be allowed to continue for as long as it feels there is something it should say. Such a procedure will give both parties the satisfaction that they have had their "day in court." Even if the Arbitrator thinks [6]

he has sufficient information on a given point, it is usually inadvisable for him to shut off the discussion. In case the parties have set certain time limits, the Arbitrator may find it necessary to ask the leader or spokesman for one side whether he is of the opinion that the line a particular witness is taking is pertinent to the case, but he should usually avoid "shutting off" the testimony of any person without getting the consent of the party directly involved. When one party objects to the lengthiness or the direction of a given line of testimony as it is being developed by the other side, the Arbitrator may quite properly encourage a discussion as to the fruitfulness of that particular line of inquiry, seeking mutual agreement, where possible, to narrow the issues of the area of investigation. He should avoid ruling on the objection, however, unless it is apparent to him that the conduct objected to is for the purpose of harassment or delay. Almost invariably some testimony will be introduced or some statements will be made which are not strictly germane to the case. Sometimes, however, it will be difficult to determine relevance until the entire case has been unfolded. At any event, some excursions into extraneous material may be useful to the Arbitrator in enabling him to get a background for the case or to understand the points of view of the participants. Such excursions may be permitted except where they would be inordinately time-consuming or would raise other issues which might interfere with the determination of the case in point. 6.

THE

ACCEPTABILITY

OR A U T H E N T I C I T Y

OF

EVIDENCE

T h e Arbitrator should make it clear that there is no necessary connotation of authenticity, relevancy, or weight to be attached to the "acceptance" of an exhibit or other testimony in an arbitration case. Exhibits will be accepted if proffered by either party if the Arbitrator believes they will be helpful, or even sometimes if he thinks they will not be. In cases where the authenticity of evidence is challenged, or where allegations contained therein are questioned, and proof of authenticity or accuracy is unobtainable because of the offering party's inability to supply sufficient supporting data, the Arbitrator is nevertheless free to accept the exhibit, since its authenticity, relevancy, or weight are matters which must, in any event, be determined in the last analysis by him. Nevertheless, the Arbitrator should make it clear to the parties that they have a responsibility to present accurate facts and, upon examination, to indicate the limitations or completeness of their evidence so far as they know them. [7]

In the absence of an explicit agreement to the contrary, the Arbitrator will not be bound by the legal rules of evidence, e.g., the "hearsay" rule. 7. T H E

PROBLEM OF CONTROVERTED

EVIDENCE

It is the Arbitrator's duty to decide the case upon the facts. Where testimony is controverted, it is quite proper for the Arbitrator to take the initiative, if necessary, in reconciling apparent contradictions, or in seeking insight into the motives of those whose testimony is at odds. It is the parties' primary responsibility to present facts and to rebut contrary testimony, but the Arbitrator may also use his office to elicit information or to secure insights where, in his opinion, such procedure is made necessary by the critical nature of the controverted testimony. Where such testimony is germane but not critical, the Arbitrator may elect not to probe too deeply into contradictions or challenged allegations, since he is free to decide the case on thé basis of the weight of evidence. 8 . T H E P R O B L E M OF R E F U S A L TO S U P P L Y WITNESSES OR EVIDENCE

If one party demands that the second party furnish certain information 01 produce witnesses which the second party refuses to supply, the party desiring that the witnesses or information be produced should be required to state what the purpose of the evidence or testimony would be, and why it is germane. T h e party who opposes the supplying of such evidence should likewise state its reasons for not wishing to comply, whether these are reasons of policy, cost, inconvenience, or other. T h e Arbitrator should then find it necessary to form a judgment as to whether the evidence or testimony is truly germane to the case and whether the reasons advanced by the party refusing to supply it are valid. An Arbitrator might quite properly refuse a request that a party produce information where such information sought is indefinite, poorly defined, not strictly to the point, or where it is otherwise apparent that the party requesting it is simply on a "fishing expedition." On the other hand, where this is not the case, and the reasons advanced by the party refusing to supply it seem invalid and based upon expediency or a desire to interfere with a fair determination of the issues, the Arbitrator may properly indicate that a refusal to supply such evidence of testimony is to be construed as an admission of the validity of the opposing party's contention in [8]

regard to the probable content and importance of the evidence or testimony in question. Where the reasons for not supplying the information seem cogent as might be the case if the data sought would be too expensive to gather, or would reveal other facts not germane to the case and prejudicial to the interests of the party in possession of the same, the Arbitrator may be able to work out a technique for eliciting the pertinent facts by side-bar conferences. However, the parties should first agree that this technique is acceptable. Sometimes the information desired may be so modified in form that its collection becomes feasible. Sometimes one party will agree to make information available to the Arbitrator but not to the other party. In this instance the Arbitrator should not accept such an offer unless it is mutually agreeable and unless it is also understood that his findings with respect to the point or points at issue, if critical to the determination of the case, shall be made known to the other party and their full significance indicated, so that the latter may have the opportunity to reply. 9. T H E

PROTECTION OF WITNESSES

It sometimes happens that an employee may be placed in a position in which his testimony, if given at the employer's request or insistence, may jeopardize his standing in the plant among his fellow workers. I n like manner, a union may seek to elicit evidence from a foreman when the result would be to discredit him in the eyes of management or of the employees whom he supervises. It is within the province of the Arbitrator to seek to protect the interests of persons facing such a predicament by calling to the attention of the parties the risks involved. However, it should also be clear that if one side persists in introducing this evidence the Arbitrator should not inject his personal preference in favor of the appearance or nonappearance of the witness. 1 0 . R E F E R E N C E TO O F F E R S AND COUNTER O F F E R S M A D E IN C O L LECTIVE BARGAINING

In the arbitration of new-contract cases or of wage-reopening clauses, the parties may wish to conceal from the arbitrator any knowledge of the various offers made during the collective bargaining which led to the stalemate resulting in arbitration. I f this is the case the Arbitrator should honor their wish. O n the other hand, one of the parties may wish to make such information available to the Arbitrator and the other party may be opposed to this. It may be sound policy to exclude [9]

discussion of such offers under such circumstances, lest future bargaining be inhibited by the fear that such an offer may compromise one party's position in the subsequent arbitration of the issue. However, where collective bargaining relationships are very mature, and the Arbitrator is well acquainted with the parties and their past bargaining practices, disclosure of bargaining offers should not be detrimental to future bargaining. T h e Arbitrator should take pains to find out at the outset of the hearing whether the parties do or do not wish him to be in possession of such information. If it is decided that the prior bargaining positions are not to be divulged, and this is so understood and stipulated, it may be that subsequent inadvertent or intentional disclosure by one party might require that the Arbitrator resign his commission so that the issues may be heard anew. However, this may be avoided if the Arbitrator feels that what he has heard will not prejudice him, and if he then affords opportunity to all parties to discuss the offers and the circumstances under which they were made. Usually an Arbitrator can make a more useful award in the light of the knowledge of the previous bargaining positions, if this knowledge can be gained without impairing or inhibiting the parties' relations one to another or their future collective bargaining effectiveness. T h e Arbitrator should also bear in mind the possibility that one party might bring about a disclosure of this character for the purpose of seeking to disrupt or delay the arbitration process. If this should be the case it is likely that he might wish to continue and, if the initiative rests with him, would elect to do so. 11.

U S E OF EVIDENCE FROM E A R L I E R GRIEVANCE STEPS

In the arbitration of grievance cases involving matters on contract interpretation or application, as distinguished from new-contract or wage-reopening cases, the Arbitrator should usually freely allow the introduction of all facts as submitted in lower levels of the grievance procedure, including transcripts of discussions which have taken place. T h i s would be true in virtually any case except where the parties have mutually agreed to the contrary. But if there is disagreement as to the accuracy of such transcripts or minutes introduced by one party, their acceptance by the Arbitrator should be with the proviso that the other party shall have the right to submit whatever statement or facts it has in its possession to establish its version of what transpired. [10]

1 2 . INSPECTION O F P L A N T OR P L A C E O F BUSINESS

Where there is a request from either party for a visit to the plant, for the purpose of inspecting the facilities or equipment under discussion, work materials, work flow, or any other matter which is relevant to the issues involved in the case, the Arbitrator should normally make such visit in the absence of objection from the other party. If an objection is raised the Arbitrator should consider the weight of the objection in contrast to the value of the trip. His judgment of the value of the trip should be based not solely upon the enhancement of his own understanding of the issues in dispute, but the implications to the parties of such a visit. In all cases the Arbitrator should endeavor to have both parties represented during his visit to the plant. If either party objects to the presence of a proper representative of the other party, the Arbitrator should refuse to visit the plant. In cases in which the Arbitrator believes that a plant visit would aid him in understanding the background and issues in the case, he may propose that the parties permit him to make such a visit. If either party objects to a plant visit which is proposed by the Arbitrator, he should not insist upon making it. 1 3 . RESPONSIBILITY

OF

ARBITRATOR

TO

COMPLETE

HIS

ASSIGN-

MENT

Once the Arbitrator has accepted an assignment, he should normally carry it through and he should bear in mind the possibility, however remote, that one party might seek to compromise him in order to compel his resignation. Consequently, the obligation to render a decision or otherwise see the case through to a satisfactory conclusion is very great and it should be fulfilled except in cases of extreme physical hardship or where irreparable damage to the arbitration process might result therefrom. 1 4 . PARTICIPATION

B Y A R B I T R A T O R IN T H E

HEARING

It is not the function of a labor Arbitrator to confine himself solely to the maintenance of order at the hearing, seeing that each side presents its arguments and rebuttal without interruption as though he were the judge of a debating contest. This means that the Arbitrator must be free to make his own inquiries and to explore all angles which he deems necessary in order to render a sound decision. While he should of course refrain from preparing a case for the "weaker side" or from obviously identifying himself with either side, it is his responsibility to see that [H]

all major considerations relevant to the issues are fully explored, even if they have not occurred to either one or both of the parties. T h e conduct of the hearing should ideally be one in which the parties come closer together in their understanding of the issues in dispute. In general, the Arbitrator should endeavor to stimulate good relations between the parties and further the successful operation of collective bargaining. Voluntary agreement is always the desired end product of collective bargaining and the Arbitrator is an adjunct to, rather than a substitute for, collective bargaining. Consequently, it cannot be improper, in and of itself, for the Arbitrator to use his good influences to achieve an induced agreement rather than an imposed solution. Even where this is not possible, the Arbitrator may bring the parties closer together and thus cause his imposed solution to be more acceptable to them. Parties may be brought closer together by sensing the direction of the Arbitrator's thinking, or by receiving new "slants" on their own or their opponent's cases, from the questions and remarks of the Arbitrator as he properly and normally seeks to clarify and point up the issues. They may also gain greater insight into the implications of their own positions and they may discover that a victory in the instant case might result in a less desirable rather than a more desirable outcome in terms of the entire bargaining relationship. T h e Arbitrator's role in a hearing may thus be an active one. However, it is improper for him to use his position for the purpose of coercing the parties into accepting his or any other point of view. He may not be arbitrary, capricious, didactic, or self-righteous. He should not assume that he has the "magic formula." His is a creative function, with the object of bringing about a solution which is acceptable to both parties. Ideally the solution will tend to be the result of an exploration of a dispute by all three parties rather than the judgment of one selfpronounced expert. If successful, he will find that, without consciously mediating, differences will be settled by him in a significant minority of cases, through voluntary agreement rather than by decision. 1 5 . D E F L A T I O N OF C L A I M S

Even when, in the Arbitrator's judgment, claims or arguments of one of the parties are preposterous, he should refrain from explicit or obvious derision or disparagement. Sometimes claims [12]

of this character must be made "for the record" because of prior commitments or obligations of one of the parties. However, the Arbitrator is not thereby barred from expressing his opinion that the exploration of these arguments or claims would not be fruitful and seeking to direct the inquiry along more realistic lines. 16. A D J O U R N M E N T

AND

SETTING

NEW

HEARING

DATES

As to time of adjournment and dates for reconvening, the Arbitrator should attempt to secure agreement between the parties. If there is disagreement the Arbitrator has the authority to set the time and place for the next meeting, or the time of adjournment, and he may properly do so after considering all pertinent objections. In the event that one party seems inclined to "stall" or to use obstructionist tactics the Arbitrator need not hesitate to assume the initiative in expediting hearings by setting early dates in order to render a timely decision.

POST-HEARING MATTERS I.

POST-HEARING

BRIEFS

T h e Arbitrator has the right to request post-hearing briefs if he deems them advisable. If either party wishes to submit such briefs, or to supply additional evidence, and so informs the Arbitrator after the hearing has been completed but not adjourned, this privilege may be accorded. Usually mutual consent is sought, and an arrangement is worked out whereby the other party is given the chance to comment on the brief. T i m e limits are customarily set so that the matter does not degenerate into an indefinite series of claims and counterclaims. Where one party desires to file a brief and the other party opposes it, the Arbitrator will determine whether to permit the submission of such a brief on the basis of his judgment of its value to him in deciding the case. If he accords the privilege it should be with the understanding that a copy of the brief will be submitted to the other party for whatever comments that party may feel called upon to make. T h e Arbitrator may occasionally find it necessary to call the parties together again for an additional hearing if some point of critical importance should develop as a result of the filing of briefs. [13]

Once the hearing has been concluded the Arbitrator is within his rights in refusing to permit either party to submit additional evidence or briefs except with the consent of the other party. Copies of material submitted to the Arbitrator should be submitted to the other party simultaneously in all cases. Copies of letters from the Arbitrator to one party, having to do with the case, should be sent to the other party as well. 2 . GIVING AN O R A L AWARD

There are some circumstances under which an Arbitrator may feel it appropriate to announce his award orally at the conclusion of the hearing. This usually occurs only when the Arbitrator has had a long-standing relationship with the parties and even then only when there is some degree of urgency connected with the decision, as in certain discharge cases. Even when the Arbitrator is very sure of his facts, the immediate pronouncement of a decision will give the impression that the Arbitrator is superficial and content to make "off the cuff" judgments, and this impression may be detrimental to the acceptability of the entire arbitration concept. When oral decisions are made the Arbitrator will usually indicate the line of his analysis at that time, and state that it will be fully set forth in an opinion which will follow at a later date. He should avoid discussion as to the merits of his award, and he should make it clear why he is giving his decision in this fashion rather than in the customary manner. 3. T H E

OPINION AND AWARD

A variety of customs exist with respect to the manner in which the opinion is presented and the format and style which will be most acceptable to the parties. However, it is extremely important that the Arbitrator's award shall be removed from the text of the opinion and so set forth that it stands by itself in its entirety. If this is not done it may be difficult for the parties to determine just where the award stops and the opinion begins. T h e award should make clear and complete disposition of all the issues submitted to arbitration in language which is not susceptible to misconstruction. 4.

EXPRESSING PERSONAL V I E W S

Both in his conduct of the hearing, and in his written opinion, the Arbitrator is not barred from expressing his personal opinions. For example, if he believes that certain terms of a contract, [14]

directly at issue in the case, are ambiguous or loose, it is not improper for him to say so, and he may likewise express the judgment that certain interpretations might have unfortunate consequences. However, it is not his function to preach a sermon on good industrial relations or to give lessons in English composition, punctuation, or grammar. In these respects, his manner is more subject to criticism than his comments, for what may be said tactfully by one Arbitrator might be offensive and improper if uttered brusquely by another. 5. INTERPRETATION

OF

AWARD

If one party requests that the Arbitrator issue an interpretation or clarification of his award, he should refuse to comply, but should indicate that he will give consideration to the request if made by both parties. When the request is made by both parties he would normally grant the request, but he should be careful that his clarification does not result in any substantive change in the decision itself. (i. R i m EST FOR R E C O N S I D E R A T I O N OR

REOPENING

If a request is made by both parties for a reopening of the case for the consideration of additional facts or arguments, the Arbitrator may consent if he feels that the consideration of such facts or arguments might lead to a different conclusion. He would refuse to reconsider, however, if additional facts or substantial and new arguments are not proposed. 7. T H E

BINDING N A T U R E OF T H E AWARD

It is almost invariably understood that the Arbitrator's award is final and binding, although occasionally the parties inay propose that the Arbitrator serve simply as a "fact-finder" whose task it is to submit recommendations for the settlement of a dispute. Where the award is to be the final, the parties are nevertheless at liberty to set it aside, or to modify it, if they do so by joint agreement. Neither the participation of the Arbitrator nor his consent would be required for such modification or setting aside of the award.

[15]

Copyright

1953

UNIVERSITY OF PENNSYLVANIA PRESS in the

Manufactured

by

Tin.

Vniled

States

of

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