Nearly 30 years after its initial publication, the american arbitration associations seminal primer, labor arbitration. The arbitrator begins by noting that in a labor grievance arbitration the employer carries the burden of proof in a matter of discipline or discharge. Grievances, arbitration and past practices 2019 labor. Burden of proof the principle is well established in labor arbitration that the employer has the burden of proof in a discharge case. Cpers pocket guide to public sector arbitration is the readable yet comprehensive guide to everything you need to know about public sector arbitration the fifth edition covers all new cases and statute changes in the four years since the book was last published. How arbitrators decide who has the burden of proof, and how much proof is necessary. Conflicting views on the appropriate standard of proof in termination cases. The arbitrator discusses the employers burden of proof in this award. The decisionmaking process whats convincing and what is not. Article 15 quantum of proof preponderance of evidence needs basicallythis means the degree ofproofnecessary to persuadethe arbitratoryou are right. The railway labor act rla prohibits covered employees from striking over cba interpretation and application disputes, which it calls minor disputes.
Arbitration awards where unionized employers and unions are unable to resolve a workplace debate, there is the option of submitting the issue to an independent arbitrator or an arbitration board. The advisability of grievance meetings rather than. The rules of evidence in arbitration, including issues of hearsay and. The basics of how an arbitration hearing is conducted. Winning discipline and discharge cases at arbitration. To obtain a copy of this book, call our sales department. Ppt grievance arbitration powerpoint presentation free to. Chames the concept of burden of proof is well established in our common law system of jurisprudence. Onus is on employer exception to general rule employer must prove that the collective agreement has been breached and misconduct justifies dismissal the more serious the allegation and consequence, the greater the burden of proof burden on the union. The degree or quantum of proof required in this appeal shall be by a preponderance of the evidence. Chart and diagram slides for powerpoint beautifully designed chart and diagram s for powerpoint with visually stunning graphics and animation effects. The court of appeal set out practical guidance points as to how the shifting of the burden of proof rules in discrimination cases should be applied. Employers bear the onus to prove just cause for termination. Conflicting views on the appropriate standard of proof in.
Additionally, many, many new cites in the existing sections were added. Arnold zack, one of the foremost experts on arbitration, with over thirty years in the field and an international reputation, has written a comprehensive handbook on the subject. Burden of proof in labor arbitrations duke law research. Theyll give your presentations a professional, memorable appearance the kind of sophisticated look that todays audiences expect. With lancasters new ebooks, you can easily carry our publications with you. An alternative view suggests that the party bearing the burden of proof in arbitration is at a disadvantage and thus should lose more often dilts and.
Revised content makes this guide an even better aid for busy practitioners. Characteristics and outcomes of grievance arbitration. Burden of proof arbitration grand valley state university. Burden of proof for property arbitration educational article. Based on lancasters popular service, leading cases on labour arbitration, this. Grievances that lead to arbitration are not only financially draining, but the results of the arbitration can have a significant impact on the morale and operations of the organization. A practical guide to grievance arbitration long before. Whats the difference between the burden of proof and the. In a grievance or disciplinary hearing, its up to management to prove an infraction and to justify the level of discipline.
The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are provedin other words, where there has been an. A quasijudicial process gives arbitrator power to issue a decisionaward which may result in. Arbitration decision outcomes dispute total employer lost employer won split decision category frequency % frequency % frequency % frequency % discipline and discharge 63 49. Sep, 2015 the cited case did involve stigmatizing misbehavior and what arbitrator beck actually required was proof by clear and convincing evidence. Article 15 quantum of proofpreponderance of evidence needs basicallythis means the degree ofproofnecessary to persuadethe arbitratoryou are right. Having this burden means the party must prove its case to the trier of factjudge or jury, whoever is weighing the evidence. International arbitration books a number of leading books on international arbitration have been made available online in recent years, providing a large virtual library that may be easily consulted.
The decisionmaking process whats convincing and what isnt. Even today it is the primary method utilized by public and private. Human resources personnel, union officers and representatives, labour and management consultants, lawyers, and librarians anyone who needs quick access to clear definitions of labour law terms will value this standard canadian reference. A grievance process shall be available to permanent career service employees. How arbitration works, eighth edition is the most thorough and authoritative arbitration treatise available. In practice, each party bears its own burden of proof. Aug 31, 2011 denying unions exception that arbitrator applied wrong burden of proof where union failed to establish prescribed burden of proof. The arbitrator will determine whether the party has met their burden of proof.
Where the issue in dispute involves a claim by the union that a provisions of the collective bargaining agreement. Revised discussion of the burden of proof in discipline cases. How arbitration works is an essential reference for labor. Franck washington and lee university school of law september 10, 2014 2 comments. A practical guide to grievance arbitration long before alternative dispute resolution was commonplace, work place disputes were being determined by arbitrators. But a common trick is for management to try to shift burden of proof onto the employee. In addressing the issue, arbitrator rappaport discusses his view of the appropriate standard of proof in a termination case. Grievance and arbitration almost all opeiu contracts contain a section which gives the union the right to process a grievance to final and binding arbitration.
In many cases a union will typically argue that the employer should have the burden of proof beyond a reasonable doubt. The burden of proof can shift from one side to the other during a hearing or a trial depending on the kind of case. Whether or not the employer violated the contract when it refused to grant occupational leave time to an employee. Although the use of arbitration has become commonplace in the organizational world, the ethical issues surrounding arbitration have never been fully explored.
It is generally applicable to all manner of disputes including labor disputes, in both the public and private sectors. Apr 03, 2019 how arbitrators decide who has the burden of proof, and how much proof is necessary. Off duty misconduct, just cause, burden of proof and leniency. We are claiming that the company has been violating the contract, so we will need to convince them and if it goes that far, an arbitrator that our understanding of the contract is correct. An arbitration award refers to a decision made by an arbitration tribunal in an arbitration proceeding. Problems of proof in arbitration, 9091, 187189 bna books, 1967. Winner of the standing ovation award for best powerpoint templates from presentations magazine. The burden of proof is on the union for all issues except discipline. But have the arbitrators accepted burden of proof as a useful tool to be used in hearings before them q it is true that the greater number of arbitration opinions do. Ethical concerns in grievance arbitration springerlink. In my first 30odd years as a labor arbitrator, i have not yet heard or read a case in which it would have been appropriate to require proof beyond a reasonable doubt. The rules of evidence in arbitration, including issues of hearsay and relevance.
The final step of this procedure is binding arbitration. Margaret brogan, arbitrator and mediator, philadelphia, pa. Cfa grievance and discipline appeal filing guide california. What you need to know, has undergone a complete facelift with the publication of this brand new book. The establishment of a grievance arbitration process in the collective bargaining agreement remains the principal method for resolving contractual disputes in unionized settings in the us. The labor arbitration process continues to be important to the. Worlds best powerpoint templates crystalgraphics offers more powerpoint templates than anyone else in the world, with over 4 million to choose from. Its progeny, proceedings of the 30th annual meeting of naa 29, 30 bna books, 1978.
It is understood the burden may shift after a prima facie showing or for some other evidentiary reason. Workshops books educational articles stewards toolbox pension. In contractual disputes the union must meet this benchmark. One of canadas most successful advocates writes about what you need to do to win your case from fact investigation and witness preparation through opening statement, examination, and crossexamination to legal research and preparation of final argument. Dont wait until a problem is tied up in arbitration or headed to a regional panel. Grievance arbitration is a common mechanism for resolving cba disputes in all sectors and industries. While the number of pages of text that can be viewed tends to be limited, a considerable amount of detailed information may nevertheless be accessed. Union, bears the burden of proof or persuasion in advancing its position. In a discipline case, the company has the burden of proof. In contract interpretations, the union has the burden of proof. Five common grievance issues international brotherhood.
In such cases nalc will not be able to successfully obtain arbitration of the grievance on its merits. The arbitrator, in his discretion, may vary this proced ure 26supra note 8. Arbitrator can set clear and convincing burden of proof in disciplinary cases print when officer kevin hammond was terminated by the village of posen, illinois police department, his labor organization, the illinois fop labor council, challenged the termination in arbitration. Nov 06, 2015 arbitration homepage arbitration info. Where the issue in dispute involves a claim by the union that a provisions of the collective bargaining agreement has been violated, the union carries the burden of proof. Burden of proof in grievance arbitration marquette law scholarly. Presenting your case in arbitration although arbitration does not have many of the formal rules and procedures used in court, it is important to remember. Cgdd grievance process burden of proof divisionoffice owner. Winning cases at grievance arbitration lancaster house. Grievance arbitration in the federal service 179 to the present. Similarly, the arbitrator will determine what evidence is. Burden of proof in labor arbitrations duke law scholarship.
The grievance procedure is supposed to protect members from unfair. In some situations, the win or loss of an arbitration can completely change the culture. Our new crystalgraphics chart and diagram slides for powerpoint is a collection of over impressively designed datadriven chart and editable diagram s guaranteed to impress any audience. T williams writing the grievance arbitration brief 1 writing the grievance arbitration brief by timothy d.
Sep 30, 2014 arbitrator can set clear and convincing burden of proof in disciplinary cases print when officer kevin hammond was terminated by the village of posen, illinois police department, his labor organization, the illinois fop labor council, challenged the termination in arbitration. Burden of proof for property arbitration in a civil case, which is what property subrogation arbitration represents, the applicant must prove its case of. In some situations, the win or loss of an arbitration can completely change the culture and the perceived rights of management or union. Arbitrator applied the incorrect burden of proof in this case. Conflicting views on the appropriate standard of proof in termination cases as noted in an earlier post here, arbitrator michael rappaport upheld a grievance filed by a firefighter whose employment was terminated for alleged sick leave abuse. This treatise discusses how, when, and why to accept, reject, and credit evidence in an arbitration hearing. Find the top 100 most popular items in amazon books best sellers. Fundamentals of labor arbitration, the first volume in the aaaicr dispute resolution series, features all new content that is indispensible to advocates. Grievances, arbitration and past practices 2019 labor relations. In such cases nalc will not be able to successfully. Beating management at the grievance game teamsters for a. Burden and standard of proof in international arbitration. A grievance is defined as, the dissatisfaction that occurs when an employee believes that any condition affecting the employee is unjust, inequitable, or a hindrance to effective operation.
The purpose of this paper is to consider the extent to which that concept has been introduced into labor arbitration proceedings, and the propriety and manner of its use in such proceedings. Ppt grievance arbitration powerpoint presentation free. Although the standard of evidence is different in arbitration than in civil courtroom proceedings, the burden of proof is on cfa to show that the csu administration violated, misinterpreted or misapplied the various provisions of the cba cited to in the grievance. Burdens of proof, due process, and the use of medical evidence are analyzed in terms of statutory and case law in the book.
It has been cited by advocates, arbitrators, and judges more than any other arbitration book published, and is the standard text that no labor relations specialist, union representative, labor law attorney, professor, or arbitrator should be without. The labor arbitration process continues to be important to the fabric of labor relations. The relationship between grievance procedures, unfair labor practices, and. Burden and standard of proof are two important issues that have not received enough attention in the context of international arbitration. Arbitration, burden of proof, icca miami 2014, surveys precision and legitimacy in international arbitration. Introduction one authority has defined the brief as a survey of the potential proof for one side of a dispute. In cases such as this one in which serious misconduct has been alleged, the employer is held to a standard of clear and convincing evidence for proving its case. Whether or not the employer had just cause to discharge an employee for not accepting a transfer position while on light duty assignment. In re grievance arbitration between state of hawaii. Steward immunity, probationary removals, managements burden of proof, but she was provoked, and mitigating factors, have been added or further developed. Parties often use it as an alternative to work stoppages such as strikes or lockouts.