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Disputes

Disputes. Generally, an arbitrator may only hear a “grievance” (as defined by the agreement) that is processed to arbitration arbitration the final step in the grievance procedure If matter is not a grievance May not be raised through the grievance procedure Is not arbitrable

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Disputes

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  1. Disputes • Generally, an arbitrator may only hear a “grievance” (as defined by the agreement) that is processed to arbitration • arbitration the final step in the grievance procedure • If matter is not a grievance • May not be raised through the grievance procedure • Is not arbitrable • A case is not arbitrable if an arbtrator is not authorized to hear it

  2. Arbitrability • An argument by one party, usually the employer, that the arbitrator does not have the authority to hear the case • Processing a case through the grievance procedure does not mean that the employer acknowledges that it is arbitrable • Arbitrability contention must be raised through the grievance procedure • “Waived” or “Maintained”

  3. Two Types of Arbitrability • Procedural Arbitrability • Party (union) did not meet the procedural requirements of the procedure • Time limits • Waiver by parties? • Did not properly specify grievance • Substantive Arbitrability • The complaint of the grievant/union does not meet the requirements of a grievance as defined in the collective bargaining agreement • Blend of Procedural and Substantive • Example – an amendment of the grievance

  4. Resolving Arbitrability Disputes • Procedure • Technically by courts • Practically by arbitrator • Doubt to be resolved in favor of arbitrability • U.S. Sup. Ct. in Warrior and Gulf • Preference for arbitration and parties process for resolving dispute

  5. Arbitrator Resolution of Arbitrability Issue • Single Hearing (most common) • Parties agree to submit to arbitrator • Arbitrability • Merits • Arbitrator will first decide arbitrability • Not arbitrable – no decision on merits • Arbitrable – decision on merits • Bifurcated Hearing • First Hearing on abitrability • If arbitrable, second hearing on merits

  6. Arbitrator Selection Systems • Ad Hoc • Federal Mediation and Conciliation Service • State Agency (Michigan Employment Relations Commission) • American Arbitration Association (private) • Permanent Panel • Rotate • Earliest hearing date • Single Umpire

  7. Issues Associated with Selection Systems • Ad Hoc • Arbitrator clean slate, absence of preconceptions • Not familiar with industry or parties • Permanent Panel • Familiar with parties • May have preconceptions of parties • Single Umpire • Similar to permanent panel • Certainty

  8. Scope of Arbitrator’s Authority • Narrow • Limited by • collective agreement • arbitrator may not render a decision inconsistent with the collective agreement • “may not add to, subtract from, modify, or otherwise alter” • Issue presented • Record provided • What evidence to be considered? • Entire agreement or only those provisions cited?

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