The Impact of Lawyers on Labor-Management Arbitration
Mittenthal, Richard, Dispute Resolution Journal
Those who promoted arbitration of labor-management disputes understandably argued that arbitrators would have expertise that judges could hardly be expected to possess. Such expertise was presumed to give us the kind of insight that would make our decisions reasonable and realistic. But the argument for arbitration went much further. It was said that arbitration, contrasted with litigation, would be less formal, less time-consuming, and less costly.
Anyone who served as a labor-management arbitrator in the 10-20 year period following World War II would probably concede that those benefits were realized.
However, in my opinion, there is at least one development that has caused the typical labor-management arbitration to become more formal, more time-consuming, and more costly. I refer to the frequent use by the parties of outside attorneys. (By "outside," I mean lawyers retained from a law firm to represent one side or the other.)
To begin with, consider the process of establishing a date for the hearing. Absent outside counsel, this date could be established fairly quickly because only the representatives of labor and management had to be consulted. Today, a hearing date must be acceptable not just to the parties' representatives, but to their attorneys as well. Delay is the inevitable by-product. A hearing that could have been set up in a month or two now must be scheduled much later.
Because outside counsel have become regular players in labor-management arbitration, hearings tend to take much longer too. What should be a fairly routine one-day hearing can stretch to two days or longer.
Another consequence of attorney participation is that transcripts and post-hearing briefs are now commonplace. A week or two passes before the court reporter delivers the transcript; then another month passes before the lawyers file their briefs, sometimes even longer because of requests for extending the original filing date. A suggestion from the arbitrator that counsel sum up at the end of the hearing is quickly rejected with the explanation that the parties' practice is to submit briefs.
In almost every respect, I have seen the arbitration process slowed to a crawl, much like matters that are litigated in court.
The added hearing days, the transcripts and briefs and, of course, the attorney fees, serve to make arbitration more expensive than it used to be. Although arbitrator fees have risen over the years, I believe that is a relatively small part of the cost equation.
The consequences of higher costs are usually greater for the union than for management. I have no doubt that this has caused unions to take fewer cases to arbitration. Simply put, it has become too expensive for a union to protect employee rights in certain circumstances, such as where an employee believes he has been improperly denied overtime or has received an undeserved one-day disciplinary suspension.
The parties, more often than not, used to represent themselves in labor-management arbitration. The director of labor relations spoke for management; a union staff representative or business agent spoke for the union.
Arbitrators relied on their handwritten notes, not transcripts. The parties' spokespersons made their closing arguments at the end of the hearing. There were far fewer post-hearing briefs since they were not needed in the majority of cases. The hearings were shorter and there was less technical argument.
Arbitration then resembled what it was meant to be-the final step in the grievance procedure. Today, the process is more like what one might encounter before an administrative law judge. The employer brings in an outside lawyer and the union responds in kind, not wanting to be at a disadvantage. The lawyers raise whatever arguments might possibly succeed. Sometimes I get the feeling that the parties' relationship is less important than winning the case. …