Several Philosophical and Pragmatic Musings About Arbitration Under the Railway Labor Act. John B. LaRocco 1

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1 Several Philosophical and Pragmatic Musings About Arbitration Under the Railway Labor Act by John B. LaRocco 1 American Bar Association Annual Meeting of the Committee on Railway and Airline Labor Law (Section of Labor and Employment Law) March 9, 2000 Napa, California Since I have arbitrated extensively for many years in the railroad and airline industries, I thought that the advent of a new millennium (assuming that the new millennium actually began on January 1, 2000) is a good time to reflect on some philosophical as well as pragmatic aspects of arbitrating disputes under the Railway Labor Act. The purpose of this paper is to pose questions for discussion about Railway Labor Act arbitrations. 2 The questions will be based on my experiences (during the now completed 20 th Century) as well as anticipating problems that might arise in the new century. I do not necessarily have definitive answers to these questions but sometimes, posing the question and generating thought is more important than simply voicing one s opinion in response. Moreover, the answers to some of these questions ought to come from labor and management representatives rather than a neutral. A. Boards of Arbitration The airlines and railroads invariably establish arbitration boards consisting of an even number of partisan members chaired by the arbitrator. 3 I generally believe that these boards have worked remarkably well. I have been involved in some very candid and vigorous executive sessions on complex cases. I do, however, pose the following inquiries. " Should the parties give their partisan board members more insulation or more immunity so that the partisan members can have a frank discussion with the neutral? " Is the purpose and function of these boards promoted if the parties appoint, as their partisan members, a member of the rank and file and a member of the operating department as opposed to persons knowledgeable about labor relations? 1

2 " If, as has been often charged, the partisan members serve no useful purpose other than to concur or dissent to the Opinion and Award, should the parties consider abolishing these boards? " What suggestions do the parties have for arbitrators so that arbitrators can better utilize their board members in achieving the fair adjudication of grievances? B. Section 3 Arbitration in the Railroads The Railway Labor Act provides (I think twice) that the National Mediation Board shall compensate persons serving as neutrals in minor disputes on the railroads. " Setting aside parties pay arbitrations in the railroads, query whether the policies of Section 3 of the Railway Labor Act are being undermined by budgetary starvation? " The parties and arbitrators might ask if the railroad arbitration system has been devalued? " The parties and arbitrators must ask themselves if labor and management in other industries are subsidizing the government paid arbitration process in the railroads? C. The Credibility of Witnesses It is my opinion that one of the most difficult, yet the most important, duties of an arbitrator is to pass judgment on the credibility of witnesses. Undoubtedly, each arbitrator has a special method of evaluating the credibility of witnesses based on personal judgment, experience and other factors. The parties almost always try to challenge, if not attack, a witness s credibility when the witness is giving testimony unfavorable to their case. Consider the following questions: " Should the parties pay more attention to buttressing or enhancing the credibility of witnesses that are giving testimony favorable to their case than to attacking the credibility of an unfavorable witness? 2

3 " What are the ethical considerations for a permanent arbitrator who has found a particular witness to be not credible in one hearing and then, that witness testifies, on an entirely different matter, in another arbitration hearing? " Should neutrals and the parties re-examine the interrelationship, if any, between credibility and perjury? " Should the company take disciplinary action against an employee-witness who commits perjury during an arbitration hearing? D. The Credibility of the Advocates We frequently concentrate on determining the credibility of witnesses and forget that the advocates hold reputations for credibility as well. In my many years of experience as an Arbitrator, have had many of the same advocates appear before me numerous times. Many of these advocates, I am thankful to say, are credible and 100 percent honest. When one of these advocates makes a representation to me, I can take it to the bank. Let s further explore this type of credibility. " In deciding which cases to progress to arbitration, should the advocates consider not just the credibility of witnesses but also their own credibility and reputation in the labor-management community? " What ethical considerations arise when an arbitrator reaches the conclusion that an advocate has not been credible? " Sometimes the credibility of an advocate is indirectly undermined by the advocate s client or constituents. When this occurs, how can the advocate best salvage the advocate s reputation (or credibility) in the eyes of the arbitrator? E. Discovery There have been innumerable arguments about the scope of discovery under the Railway Labor Act. 3

4 " Regardless of how the statute is interpreted, is it time to consider the possibility of establishing formal discovery systems, or the lack thereof, in the labor agreement? " Would an agreed-upon system of discovery make the arbitration hearing more or less efficient? More or less fair? " Would a formalized discovery process result in more or fewer settlements short of arbitration? " Finally, would a discovery process in the grievance arbitration section of the contract create more disputes than it would solve? F. The Evaluation of Arbitrators The parties have the unique select your judge system. I believe that, in the long run, the marketplace tells arbitrators a great deal about their performance. The parties will repeatedly invite back an arbitrator that performs well while the parties will refrain from again using an arbitrator that is a poor or mediocre performer. Of course, there are always going to be instances where the arbitrator will be fired or unfairly criticized even though the arbitrator did an outstanding job. Sometimes, part of the arbitrator s job is to take the blame or act as a lightening rod for the parties. " Is there a way for the parties to provide the arbitrator with feedback on performance besides the operation of the marketplace? " Would the parties be interested in providing arbitrators with feedback on the substantive decision-making and reasoning process and/or other items such as, clarity of the written opinion and handling of the hearing? " Are the parties apprehensive about evaluating arbitrators and, if so, how can we overcome this apprehension? " Is any evaluation a utopian dream? 4

5 G. Closing Oral Argument vs. Post-Hearing Briefs Virtually every arbitrator has a preference for either closing oral arguments or posthearing briefs, depending on the type of case. In my experience in the airline industry, the parties usually transcribe the arbitration hearing and then file post-hearing briefs but this is not a universal practice. 4 I follow a policy of allowing the parties to decide whether they want to write briefs or present closing oral arguments even where I would prefer one or the other. Please consider: " Should an arbitrator who prefers either closing oral arguments or posthearing briefs in a particular case disclose the preference to the parties? " Is the purpose of a transcript defeated if closing oral arguments are made since the parties do not have an opportunity to review the transcript before formulating and giving their arguments? " If the parties are opting for post-hearing briefs, are the parties using their opening statements to make their arguments personally to the arbitrator, that is, are opening statement becoming more argumentative? H. Evidence and Objectives Generally, I am a stickler about ruling on evidentiary objections. In other words, I am not afraid to sustain objections. " Do the parties prefer an arbitrator that allows all matters into the record, including the kitchen sink? " Do the parties prefer an arbitrator who runs a strict hearing keeping the evidence within reasonable bounds and relevant to the dispute? " Do the parties prefer an arbitrator that treats evidentiary matters as if the forum is a court of law? " Do the answers to any of these questions depend on the type of case? 5

6 These are just some topics that occasionally cause me to step back and think about how to improve arbitration in the railroad and airline industries. Some of the answers to the above questions may be easy while others may be complex. Still other answers may be unknown. Where the question is controversial, a consensus answer may not be feasible. But, I think we need to periodically contemplate these subjects to insure that labor arbitration is adjudicating industrial disputes in a fair and impartial fashion. Notes 1 John B. LaRocco is a Professor of Law at the California State University, Sacramento and an Arbitrator, Mediator and Factfinder. He is a member of the American Bar Association and the Section on Labor and Employment Law. Labor Act. 2 Some questions broadly pertain to all types of labor arbitration but others are relegated to the Railway 3 Some other industries utilize boards of arbitration but they are the exception rather than the rule. Surprisingly, in my experience, the public sector is moving towards using more tripartite boards albeit the number of these boards is minuscule and tripartite boards are predominantly used in factfinding as opposed to arbitration. 4 In the railroads, the parties almost always file pre-hearing submissions. 6