Effective Advocacy in Labor Arbitration Insights on how to effectively present your case

1. Effective Advocacy inLabor Arbitration Insights on how to effectively present your case

2. Effective Advocacy inLabor Arbitration John English AAA/San Diego Nicholas Enoch, Esq. Lubin & Enoch, P.C Richard D. Fincher, Esq. Workplace Resolutions LLC Jon Pettibone, Esq. Quarles & Brady LLP

3. Agenda • Introductions and the Efficiency Mindset English • Case Selection/Case Preparation Enoch • Filing a case English • Arbitrator Selection Pettibone • Case Settlement Fincher • Witness Preparation and Exhibits Pettibone • Conduct of Hearing Fincher • Direct and Cross-examination Pettibone • Post Hearing Issues/Post Award Issues Enoch • Q&A

4. Thanks to our Sponsors Az LERA Chapter AzPELRA City of Phoenix Employment Relations Board (PERB)

5. Surveying the audience What is your experience? What do you want to know? 5

6. What is the history of labor arbitration? How were grievances resolved before arbitration… History… Quid pro quo for arbitration… Legal foundation… Acceptance in other countries… 6

7. Case SelectionNicholas First Step: Effective Investigation and Developing the Theory of Your Case 7

8. Case Selection/Case Preparation • Union’s duty of fair representation • Role (or lack thereof) of the grievant in the process • Discipline cases • Employment discrimination cases arising from 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009) • Contract interpretation cases • Compliance with grievance procedures

9. Look to the Arbitration Clause Scope of clause Time limits to file a grievance Just Cause or other standard Cost sharing Final and binding award AAA or Panel or FMCS Arbitrator selection 9

10. How strong is your theory of the case? Your explicit line of reasoning, supported at each step by evidence that exists, and can be presented by credible witnesses, is not contradicted, and can be understood by the Arbitrator 10

11. How strong is your Opponent’s Case? Clarity of his/her facts Clarity of contract language Witness credibility…Damaging records Traditional versus cutting-edge subject Adverse prior arbitration awards 11

12. Case Selection/Case Preparation • Submission of a case to arbitration • Obtaining evidence and proof • Expert witnesses • How to reduce cost and delay in arbitration

13. Filing a Case to AAAJohn 13

14. Filing Cases/Expedited Case Management • Full Service Administration • List only and Appointment only Services – where case administration is not required • Expedited Rules – when speed and cost are of the utmost importance • Direct appointment of arbitrator by the AAA • Arbitrator sets date, time and place • No briefs • Awards rendered in 7 days

15. Filing Cases/Expedited Case Management • Grievance Mediation (in-person or online) • Rapid Resolve • Up to 3 cases heard and given decisions in 48 hours • 1 arbitrator compensated on a flat fee basis (includes travel expenses if required; no study time) • Cost of 3 decisions and AAA fee - $1500

16. Arbitrator SelectionJon What do you look for in selecting an Arbitrator? 16

17. Arbitrator Selection Sources • AAA • FMCS • Permanent Panel • Direct Appointment

18. Arbitrator Selection Who to Select • Review Published Awards • National Academy of Arbitrators • Members of Permanent Panels • Relative Experience in Public v. Private Sectors • The Other Side

19. After selection, deciding key details of the Hearing How many days? Location/Start time Court reporter Expert witness/not common 19

20. Preliminary matters in the Hearing Dick 20

21. Mindset of an Effective Advocate Focus on the end result Envision your success Avoid Posturing Using sugar or honey to get your way View arbitration as a last resort over negotiation 21

22. Challenges to Arbitrability of the Grievance Procedural Substantive 22

23. Considering the Burden of Production and Burden of Proof to Prevail in the Hearing Discipline cases Contact interpretation cases 23

24. Case Settlement Costs Do you look weak? When do you invite settlement? How do you invite settlement? 24

25. Case Settlement Costs of arbitration: hard, transactional, and relational Why settlement is typically preferable Timing to raise the subject Avoiding appearance of weakness Direct negotiation versus seeking an external mediator Role of Arbitrator in inviting settlement by parties Role of Arbitrator offering to mediate for parties 25

26. Witness PreparationJon How important is witness selection and preparation? What are the different kinds of witnesses? 26

27. Witness Preparation and Exhibits Initial Meeting • Joint or Separate • What does each witness know? • Gauge how effectively each will testify • Determine the order in which they will testify • Save any witnesses for rebuttal? • Who will provide foundation for your exhibits? Calling the Other Side’s Witnesses

28. Exhibit Preparation How important is exhibit selection and organization? 28

29. Witness Preparation and Exhibits Final Meeting – Practice Testimony • Direct/Cross Examination • Pointers on Testimony • When do this? Exhibits • Review with Witnesses • Joint Exhibits • Other Documents to Refresh Reflection

30. Conduct in the Hearing Dick 30

31. Framing the Issue to be decided by the Arbitrator Strategy in Framing Conferring with Opposing Counsel 31

32. Joint exhibits and a single/tabbed exhibit binder 32

33. Opening Statement as a Roadmap Length…Tone…Detail Should you ever waive it? 33

34. Efficiency during the hearing Ways to be more productive and reduce time and costs 34

35. What is witness credibility? Why is the testimony of some witnesses less credible than others? Is it at all demeanor on the stand? 35

36. Court Reporters What do they do? How important is their role How are they paid? 36

37. Voicing objections in Arbitration What do they do? 37

38. Closing Statements Purpose Tone…Length Format Rules not to do 38

39. Conduct of Hearing • Framing the issue • Opening statements • Number of witnesses • Use of objections • Bifurcation of merits form remedy

40. Lunch for one hour 40

41. Exercise with Audience 41

42. Entering Evidence into the Record Jon 42

43. Effective Use of Evidence What is evidence? What is its purpose? How many types of evidence are there? Why is some evidence “better” then other? When is evidence excluded from the hearing? 43

44. Direct-Examination of Your Witnesses Best Practices Errors to Avoid 44

45. Refreshing Memory of a Witness Witness must admit lack of recollection Reference to an exhibit 45

46. Cross-Examination of Your Witnesses Best Practices Errors to Avoid Horror stories 46

47. Post-Hearing BriefsNicholas Summarize key facts Argue your interpretation of facts Rebut other party’s theory Persuasive summary 47

48. Post-Hearing Issues and Post-Award Issues 48

49. Post-hearing Issues/Post Award Issues • Requesting form of award • Interim awards and partial final awards • Receipt of evidence after the hearing • Adding new claims for relief in closing the brief • Functus Officio doctrine • Nunc pro tunc errors by the arbitrator

50. Attempts to Vacate a labor arbitration Award Proper legal grounds for vacating an award Proper legal procedure for vacating an award 50