DETAILED CONTENTS DEDICATION... PREFACE TO SECOND EDITION... PREFACE TO FIRST EDITION...

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1 DETAILED CONTENTS DEDICATION... PREFACE TO SECOND EDITION... PREFACE TO FIRST EDITION... v vii ix CHAPTER 1. Practice and Procedure... 1 John Kagel 1.1. Scope of Chapter Ethical Obligations of Labor Arbitrators Collective Bargaining Arbitration Distinguished From Other Forms of Arbitration... 6 I. Prehearing Procedure 1.4. Contact With the Arbitrator Description of the Case Furnished to the Arbitrator American Arbitration Association Cases Confirmation Letters Arbitrator s Terms of Employment Arbitrator s Duty to Disclose Prehearing Conferences Prehearing Briefs or Submissions Transcripts Depositions and Other Discovery Devices Subpoenas Presentation of Case on Stipulations and Briefs Requests for Postponement II. The Hearing Introduction Agreement Provisions Limitations on Evidence Statement of the Issue Formulation of the Issue xv

2 xvi COMMON LAW OF THE WORKPLACE Decision on the Merits, Not Money Damages Ex Parte Hearings Substantive Arbitrability Procedural Arbitrability Bifurcation of Arbitrability and the Merits Stipulations of Facts and Exhibits Persons Entitled to Be Present Counsel for the Grievant Right of Representation Absence of Individual Grievant Sequestration of Witnesses Order of Presentation Opening Statements Swearing of Witnesses Adverse Witnesses Bargaining Unit Members as Employer Witnesses Telephonic Testimony Confrontation of Witnesses Manner of Examination Counsel s Right to an Answer Scope of Cross-Examination and Redirect Examination Examination by Arbitrator Conduct of Counsel Toward Opposing Counsel Nonappearance of Subpoenaed Witnesses Examination by Party-Appointed Members of Board of Arbitration Counsel or Party-Appointed Arbitration Board Member as a Witness III. Objections and Admissibility of Evidence Overview Range of Admissibility What Arbitrators Will Allow Into Evidence Objections to Questions, Answers, or Documents Standing Objections... 33

3 DETAILED CONTENTS xvii Arbitrator s Objections Authenticity of Documents Best Evidence Rule Refreshing Recollection by Use of Documents Leading Questions Hearsay in General Naked Hearsay Documents and Sworn Declarations Hearsay as Only Evidence to Support Claim Opinion Evidence Arbitral Notice Testimony About Contracts or the Law Opinion Testimony and Hypothetical Questions Speculation Lie Detectors, Repressed Memory, DNA, and Other Scientific Evidence Privilege Waiver of Privilege Potential Self-Incrimination Waiver in Arbitration Grievance as Waiver of Privilege Privacy Rights of Noninvolved Individuals Privacy Rights of Employees Sexual Proclivity Journalist Shield Laws Trade Secrets Stolen Documents Material Obtained in Violation of Statute Settlement Discussions Relevance Impeachment Character Evidence Uncharged Misconduct Unchallenged Prior Discipline After-Acquired Evidence of Predisciplinary Misconduct... 48

4 xviii COMMON LAW OF THE WORKPLACE Evidence of Grievant s Postdiscipline Conduct Prior Discipline Expunged From Grievant s Personnel Records Cumulative Evidence Evidence of External Law and Public Policy Parol Evidence Evidence of Intent Res Judicata The Effect of Other Proceedings Admission Into Evidence of Prior Arbitration Decisions Nature of Burden of Proof Formulation of the Necessary Amount of Proof Shifting the Burden of Proof Affirmative Defenses IV. Concluding the Hearing, Argument, and Issuance of Award Rebuttal and Surrebutal Leaving the Record Open Upon Conclusion of the Hearing Leaving the Record Open for Deposition Summation Oral Argument Written Argument Contents of Argument Citations of Arbitration Awards in Argument Citation of Legal Authority Bench Decisions Reopening the Hearing Opinion and Decision of the Arbitrator Arbitrators Remedial Authority Timeliness of the Award Loser-Pays Provisions Postaward Jurisdiction Doctrine of Functus Officio... 63

5 DETAILED CONTENTS xix Record of Proceedings Publication of Award The Arbitrator and Postaward Litigation CHAPTER 2. Contract Interpretation Carlton J. Snow Introduction I. Intent and Language 2.1. Not Ordinary Contracts The Prime Directive: Intent of the Parties The Role of Ambiguity; Plain Meaning Rule When Is a Contract Ambiguous? The Parol Evidence Rule Ordinary and Popular Meaning of Words Ancient Interpretive Maxims Specific and General Language Handwritten Terms A Whole Document II. Context Understanding the Context Purpose Interpretation Rule of Reasonableness Presumption Against Forfeitures External Law Use of Prior Arbitration Awards Industry Standards Handbooks and Manuals Offers of Compromise III. Past Practice and Arbitrability Past Practice as an Interpretive Aid Impact of Zipper Clauses on Past Practice Filling Gaps in Incomplete Contracts Substantive Arbitrability Procedural Arbitrability... 96

6 xx COMMON LAW OF THE WORKPLACE CHAPTER 3. Management and Union Rights: Overview Gladys W. Gruenberg I. Management Rights 3.1. General Definition of Management Rights Management Reserved Rights and Implied Obligations Challenges to Management Decisions The Contract as a Living Document Implied Obligations in the Absence of a Specific Provision Reserved Rights in the Absence of a Specific Provision The Significance of a Management Rights Clause II. Union Rights 3.8. Union Rights in General Union Security Provisions Checkoff Provisions Union Privileges and Services Union Requests for Information and Access CHAPTER 4. Job Assignments Susan R. Brown I. Bargaining Unit Work 4.1. Definition Performance by Nonbargaining Unit Personnel Performance by Employees in Other Bargaining Units Performance of Unit Work by Nonemployees Subcontracting II. Job Classifications 4.5. Job Status Conferred by Contract Job Descriptions Establishing New Jobs and Job Classifications Abolishing or Combining Classifications

7 DETAILED CONTENTS xxi 4.9. Adding Duties to, or Removing Duties From, Jobs or Classifications Temporary Out-of-Classification Assignments III. Vacancies Posting and Filling Vacancies Bidding and Bid Awards CHAPTER 5. Seniority Calvin William Sharpe I. Acquiring and Calculating Seniority 5.1. Definition, Purposes, and Source Seniority Units Seniority Dates Seniority Lists II. Retaining, Accumulating, and Losing Seniority 5.5. Interruptions in Employment Work Outside the Unit Merger of Seniority Lists Contract Termination and Successorship III. The Application of Seniority 5.9. Seniority Versus Ability Seniority as a Mitigating Factor in Discipline Benefits Seniority IV. Superseniority The Legality of Superseniority Superseniority in Arbitration V. Seniority and Discrimination The Legal Context of Seniority Agreements Arbitral Seniority Decisions in Discrimination Cases CHAPTER 6. Discipline and Discharge Gladys Gershenfeld, Chapter Editor I. Standards for Discipline and Discharge Dennis R. Nolan 6.1. The Just Cause Principle Procedural Rights

8 xxii COMMON LAW OF THE WORKPLACE 6.3. Last-Chance Agreements Constructive Discharge Reasons Constituting Just Cause Discipline for Off-Duty Conduct Magnitude of Discipline; Progressive Discipline Obey Now, Grieve Later Burden of Proof Quantum of Proof Conduct After Discipline II. Due Process in Discipline and Discharge James Oldham Due Process in General Notice of Charges and Hearing Investigation Timeliness Union Representation Notice of Consequences Right to Privacy Remedies for Due Process Violations in General Alternative Sanctions Against Employers for Due Process Violations III. Discrimination as Misconduct or Basis for Mitigation Susan T. Mackenzie Introduction Acts of Sexual Harassment Constituting Misconduct Verbal Harassment Constituting Misconduct Discrimination as a Mitigating Circumstance IV. The Troubled Employee Janet Maleson Spencer Definition Discipline or Discharge Because of Trouble Per Se Discipline for Off-Duty Conduct Related to Trouble

9 DETAILED CONTENTS xxiii Arbitral Approaches to Troubled Employees Prerequisites for a Modified Just Cause Standard The Modified Just Cause Standard Remedies Because of Modified Just Cause Standard CHAPTER 7. Wages and Hours Timothy J. Heinsz and Terry A. Bethel I. Wages and Job Evaluation 7.1. Definition of Wages Bonuses Profit-Sharing Plans Pension Plans Reimbursement of Expenses Job Evaluation Changes in Job Classifications Definition of Red Circle Rates Transfer From Red Circle Rated Position II. Hours and Premium Pay Premium Pay Pyramiding of Premium Pay Guaranteed Pay Reporting Pay Reporting Pay Exceptions Contiguous Call-In Time The Right to Establish and Change Schedules Scheduling Breaks and Meal Periods Definition of Overtime The Right to Determine Whether There Is Overtime The Right to Assign Overtime CHAPTER 8. Safety and Health Mark Thompson Introduction

10 xxiv COMMON LAW OF THE WORKPLACE I. The Legal Framework for Arbitration 8.1. Statutory Basis State Workers Compensation Systems Arbitration of Safety and Health Disputes OSHA Protections Effect of Collective Bargaining Agreements II. Rules Governing Safety and Health 8.6. Employer Safety Rules Arbitral Treatment of Employer Safety Rules Arbitral Decisions on Reasonableness Removal of Unsafe Employees Smoking Restrictions Employees Hair and Beards Violence in the Workplace Random Drug Tests Intoxicants Safety Equipment Discipline for Safety Violations Application of Just Cause Immediate Discipline Crew Size III. Refusal to Work: The Safety Exception Refusal of Unsafe Work Employees Statements of Concern Arbitrators Assessment of Risk IV. Allegations of Unsafe Working Conditions Employer s Duty of Safety OSHA Regulations Distinguishing Between Discomfort and Hazard Risk Training for Employees V. Medical Conditions and Disabilities Duty of Accommodation Arbitrators Assessment of Employees Capabilities Effects of Legislation

11 DETAILED CONTENTS xxv CHAPTER 9. Fringe Benefits Shyam Das I. Vacations 9.1. Entitlement to Paid Vacation General Vacation Eligibility Work Requirements Vacation Eligibility Active Employment Requirement Scheduling of Vacations Calculation of Vacation Pay II. Holidays 9.6. Entitlement to Holiday Pay General Eligibility for Holiday Pay Service Requirements Eligibility for Holiday Pay Attendance Requirements Eligibility for Holiday Pay Nonwork Periods General Eligibility for Holiday Pay Employees on Layoff Eligibility for Holiday Pay Employees on Vacation or Leaves of Absence Eligibility for Holiday Pay Strike Situations Determination of When a Holiday Is Observed Holiday Pay for Holidays Not Falling on a Workday III. Leaves of Absence Leaves of Absence IV. Sickness, Accident, and Health Benefits Entitlement to Sickness, Accident, and Health Benefits General Changes in Sickness, Accident, and Health Benefit Plans Proof of Disability or Certification of Treatment Eligibility for Disability Income Protection During Vacations and Layoffs

12 xxvi COMMON LAW OF THE WORKPLACE CHAPTER 10. Remedies in Arbitration Marvin F. Hill, Jr. Introduction I. Sources of Arbitrators Remedial Authority The Collective Bargaining Agreement and Remedy Formulation Remedial Authority When the Contract Is Silent Contractual Limitations on Remedial Authority The Submission Agreement and Remedial Authority External Law and Remedial Authority II. Remedies in Discharge and Discipline Cases Remedies in General Reinstatement Conditional Reinstatement Reinstatement and Seniority Reinstatement When Grievant s Position Is Eliminated Reinstatement and Retroactive Bidding Rights Back Pay Conditional Back Pay Remands for Computing Back Pay Computation of Back Pay Period of Back Pay Reductions in Back Pay Suspension of Back Pay Reductions for Unemployment Compensation Reductions for Undue Delay or Self-Help Reductions for Dishonesty or Comparative Fault Remedies for Procedural Violations Arbitral Authority to Reduce Discipline No-Fault or Last-Chance Agreements Employers Remedies for Breach of No-Strike Clauses

13 DETAILED CONTENTS xxvii Damages for Breach of No-Strike Clauses Injunctions and Other Interim Relief III. Remedies in Nondisciplinary Cases Subcontracting and Improper Transfer of Operations Overtime Work Assignments Scheduling Vacations Promotion Decisions Remedies for Mistake Punitive Remedies Interest, Costs, and Attorneys Fees IV. Miscellaneous Problem Areas Remedy for Noncompliance With Arbitrator s Award Remedies Where Grievance Procedure Cannot Provide Relief Granting a Remedy Not Requested by a Party Extending a Remedy to a Nongrievant Forfeiture Clauses Remedies for Mental Distress Dues Withholding Consequential Damages and Foreseeability Perjury Protective Remedies APPENDIX. Titles of NAA Proceedings, INDEX Jacquelin F. Drucker

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