Robert W. Chester: Dispute Resolution Service

In a decision released in United Parcel Service, Inc., 369 NLRB 1 (2019), the National Labor Relations Board returned to its previous standard for post-arbitral deferral. The post-arbitral deferral standard is used by the Board to decide whether to defer to an arbitrator’s prior resolution of a grievance concerning an employee’s discipline or discharge that has been alleged to violate the National Labor Relations Act. Under the restored standard, the Board will defer to the... arbitrator’s decision where (1) the arbitral proceedings appear to have been fair and regular, (2) all parties have agreed to be bound, (3) the arbitrator considered the unfair labor practice issue, and (4) the arbitrator’s decision is not clearly repugnant to the Act. This decision overrules Babcock & Wilcox Construction Co., Inc., 361 NLRB (2014), and returns to the previous post-arbitral deferral standards set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984). The UPS decision restores policies for pre-arbitral deferral established in United Technologies Corp., 268 NLRB 557 (1984), and for deferral to pre-arbitral settlement agreements set forth in Alpha Beta Co., 273 NLRB 1546 (1985). If the parties submit a grievance to arbitration and also files an Unfair Labor Practice charge with the NLRB it is important that the arbitrator be made aware of the pending ULP charge. Thus, the arbitrator can address the standards in the decision and help to make sure the standards are met.

I've recently been asked to explain what it is that I do when I conduct an arbitration. First and foremost, I must be fair and permit both parties to be heard. Labor and employment disputes are a natural characteristic of our employment system. Disputes occur in the workplace. Arbitration is a procedure that is voluntarily chosen by the parties who want a dispute determined by an impartial tribunal of their own mutual selection. It isn't a new procedure, having been in u...se for many centuries. Arbitration is quicker, cheaper and much less complex than more formal litigation. Arbitration has the advantage of the subject matter expertise of the Arbitrator and the saving of time, expense and trouble. The U.S. Supreme Court has acknowledge that arbitration, rather than court litigation is the superior method of resolving employment issues. See more

I'm often asked what services I provide. How can dispute resolution resolve workplace issues? Although employment and labor arbitration is the primary service of the practice, I also do fact finding and mediation. Many people wonder how these services differ. In fact-finding I investigate and assemble the facts surrounding a dispute and then issue a report. This can be something that only one party to a dispute requests in preparation for litigation or simply to prepare ...for further discussions on the issue. It can also be something that both parties to a dispute request in an attempt to get "all of the facts on the table". If the parties so desire, they can agree that the fact finding report can be binding of the parties. But it doesn't have to be. It can just be designed to find out all of the relevant facts. Mediation is different. It is non-binding and it is designed to find compromise and common ground. I will not arbitrate a dispute where I have served as a mediator. Mediation works where both parties want a resolution, want to avoid litigation and need a neutral to help them find common ground. Arbitration is a more formal process, albeit much less formal and much less expensive than litigation. Arbitration is a process that is well recognized to be much quicker and a superior method of dispute resolution to litigation. It is final and binding. There are various types of Alternate Dispute Resolution where different techniques are merged together to find a process that will result in a solution. See more

http://www.scotusblog.com//argument-preview-how-should-co/ An interesting article on whether courts should decide whether individual arbitration claims are to be aggregated together in arbitration. This matter is in the 9th Circuit.