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Daniel J. Leffler

Brady Revisited

In the Spring 2014 Edition of the Police Beat, OPBA Attorney Joe Hegedus discussed whether a police officer’s personnel file must be disclosed to a defendant in light of Brady v. Maryland, 373 U.S. 83 (1963) and its subsequent line of cases.  In that article, Attorney Hegedus pointed out that the Supreme Court in Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.  The Court has also held, “that the duty to disclose such evidence is applicable even though there has been no request by the accused.” United States v. Agurs, 427 U.S. 97, 107, (1976).  The Court expanded the duty to disclose evidence where, “the duty encompasses impeachment evidence as well as exculpatory evidence.” United States v. Bagley, 473 U.S. 667, 676, (1985).  In Kyles v. Whitley, 514 U.S. 419 (1995), the Court defined what evidence is “material” by stating, “Such evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Kyles, 514 U.S. 419, 433-434.  Attorney Hegedus cited numerous subsequent cases that detail the present state of the law related to Brady and the duty to disclose, none of which broadens the responsibilities of prosecutors to disclose all matters in an officer’s personnel file in all cases.

Unfortunately, as part of another attack on the profession, this time legal counsel and advocates for Employers have attempted to seize on Brady as a means to justify disciplining or terminating an officer.  Employers and apparently some prosecutors have advocated for a broad “Brady List” which, in theory, would exclude a police officer who has ever been alleged to have been dishonest or untruthful from remaining employed as a police officer.  A Google search of “Brady list” or “Brady Cops” will show over 500,000 results.  These advocates seem to suggest that there would be a departmental list of officers who have been alleged to be untruthful and as a result, those officers’ credibility would be damaged to the point that they could never testify in court.  The theory asserts that the final conclusion to the process is that the officer must be terminated.  What these advocates seem to ignore is the present state of the law and the difficulty in determining what conduct qualifies one to be placed on “the list.”  What this leads to is Employers randomly selecting which officers they want to terminate and then justifying it by using Brady.  Random discipline is directly contrary to the “just cause” standard in the CBA.  What is most troubling is that the theory is advanced by advocates who are often hired by the Employer for the disciplinary or termination arbitration to “win-at-all-cost” and don’t have to deal with the consequences or aftermath to the Employers, the officers or the greater cost on the law enforcement community.  Employers should realize the long-term damage to their own interests.

In 2003, Police Chief Magazine detailed the difficulty of such a theory.[1] In discussion Brady, Mr. Jeff Noble noted that many departments had instituted a No Lies rule.  “The No Lies rule causes managers to deem that Brady has taken their discretion [for termination] away on these cases that fall outside the justified or excusable [conduct] categories. But removing management discretion is not the Brady rule.” Id. “First, it is important to understand that even though the defense gets the information - and they should get it - there is no guarantee that the defense will be able to present the evidence of officer misconduct to the jury. It is the court, not the defense, that makes this determination.  In its decision to admit evidence, the court will weigh the evidence to determine if it is more probative than prejudicial. Not all evidence of deceptive conduct by an officer will be admissible.” Id. Evidence that an officer lied in their private life to protect their own interest “would be prejudicial against the officer's credibility, but at the same time it offers very little probative evidence on the officer's credibility while testifying in court and therefore most judges would not permit this evidence to be introduced.”  Id. “Courts are likely to treat many administrative lies in the same manner.”  Id.

As the Supreme Court also noted in Strickler v. Greene, 527 U.S. 263 (1999), citing United States v. Bagley, 473 U.S. 667 (1985) and Kyles v. Whitley, 514 U.S. 419 (1995) “evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’”  Strickler, 527 U.S. 280-281.  “*** [Under] the prosecution’s broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes that the outcome was unjust.  Thus the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence -- that is, to any suppression of so-called ‘Brady material’ -- although, strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’” Id. (Emphasis added).

In my opinion, there can be no broad Brady list or officer exclusion, because the prosecutor’s determination of whether the disclosure of a police officer’s prior disciplinary record is necessary and exculpatory must be made on a case-by-case basis relative to the evidence in that case.  Further, even if disclosed, courts will weigh the evidence to determine if it is more probative than prejudicial.  Not all evidence of deceptive conduct by an officer will be admissible.  Finally, neither employers nor prosecutors have developed a standard on which to determine what conduct qualifies an officer for inclusion on a “Brady list” or for testimonial exclusion.



[1] Noble, Jeff, Police Officer Truthfulness and the Brady Decision, The Police Chief, vol. 70, no. 10, October 2003.

Last Updated (Thursday, 17 December 2015 18:54)

 

Unite

We hear daily news reports of the stagnant economy, the decline of the middle class and the debate over minimum wage increases.  I believe there is a general discontent among average Americans over their existing economic conditions and particularly those in the lower socio-economic group.  The wealth gap continues to grow, opportunities for advancement continue to decline and the average American is disillusioned and frustrated by the stagnation.  The government is mired in gridlock with multi-millionaires bickering over a $.25 increase in the minimum wage.  Corporate profits soar and the stock market rises on the backs of the American worker.  As a purely anecdotal observation, it would seem not unlikely that this general American discontent will be sparked into protest and civil unrest.

“It used to be that when the U.S. economy grew, workers up and down the economic ladder saw their incomes increase, too. But over the past 25 years, the economy has grown 83 percent, after adjusting for inflation — and the typical family’s income hasn’t budged.  In that time, corporate profits doubled as a share of the economy. Workers today produce nearly twice as many goods and services per hour on the job as they did in 1989, but as a group, they get less of the nation’s economic pie.  In 81 percent of America’s counties, the median income is lower today than it was 15 years ago.”[1]

Bloomberg conducted an analysis that “compared the disclosed CEO compensation mandated by the SEC — including salary, bonus, perks, changes in pension accruals, and the value of stock-based awards — with U.S. government data on average worker pay and benefits by industry.”[2] “The AFL-CIO’s average CEO-to-worker multiple at big U.S. companies is 357.  Bloomberg’s average ratio for Standard & Poor’s 500 companies is 204; the average of the top 100 companies [that Bloomberg studied] was 495.  That is, CEOs of the companies on that table averaged 495 times the income of nonsupervisory workers in their industries.”[3] The companies that Bloomberg studied were all publicly traded companies (as compared to privately held companies where owners receive the profits).  For example, depending on the average ratio used, if the average worker in a particular industry made $50,000 per year, the CEOs of that industry were paid $17,850,000, according to the AFL-CIO, or $10,200,000, according to Bloomberg.  A ridiculous disparity exists between the rank-and-file-worker pay and CEO pay.  “Peter Drucker, the celebrated management theorist, certainly thought the CEO-to-rank-and-file multiple mattered. Starting with a 1977 article and until his death in 2005, Drucker considered 25-to-1 or even 20-to-1 the appropriate limit. Beyond that, he indicated, it’s bad for business.”[4] In Drucker’s view, the excessively high CEO-to-employee ratio undermines teamwork and promotes a winner-takes-all culture.[5]

Further troubling is the gap between worker pay and company revenue based on productivity.  In an interview with Jan W. Rivkin, an economist and senior-associate Dean for research at Harvard Business School, the question was asked about the decline of unions and the affect on the middle class.  Rivkin replied, “From the end of WWII until the 1970s productivity in the U.S. and median wages grew in lockstep. But from the late 1970s until today we've seen a divergence, with productivity growing faster than wages. The divergence indicates that companies and the people who own and run them are doing much better than the people who work at the companies.  If the U.S. economy was healthy and competitive, we'd see firms able to do two things: win in the global marketplace and lift the living standards of the average American. Large businesses and the people who run them, and invest in them, are thriving but working and middle-class Americans are struggling — as are many small businesses.[6] When asked what role the decline of collective bargaining played in creating the gap, Rivkin replied that there are several causes, one of which “is shifts in institutions and politics and bargaining power, which is embodied in the decline in collective bargaining and the weakening of labor unions. There’s no question that that is part of the story.”[7]

In 1983, the CEO to worker gap was 46-to1.[8] The average two-parent American family worked more hours – 26 percent more hours – in 2009 than in 1973; however, earned only 23 percent more in pay in 2009 than it did in 1973, after adjusting for inflation.[9] “Take away the extra time on the job and wages haven’t gone up at all for the median family in more than 40 years.”[10]

“In 1983, the first year in which comparable union membership data are available, 20 percent of employees were unionized.  By 1990, 16 percent of employees were unionized. The unionized share currently stands at 11 percent. This prolonged decline has been driven by a sharp drop in private sector unionization rates. Today, only 7 percent of private sector workers are union members.”[11]

According to Forbes Magazine, “the decline of unions and worker bargaining power has hurt the middle class more than they know.”[12] Forbes’ study showed that the middle class share of income almost mirrors the decline of union membership and that there is a high correlation between union membership and middle class income.[13] Forbes noted that, “There are of course other factors that affected middle class income but the decline of unions and their wages was certainly a big factor. The long term goal of the corporations to get rid of unions was part of a larger goal of reducing labor costs.  The economist Joseph Stieglitz has asserted that, ‘strong unions have helped reduce inequality, whereas weaker unions have made it easier for CEOS, sometimes working with market forces that they have helped shape, to increase it. The decline in unionization since World War II in the United States has been associated with a pronounced rise in income and wealth inequality.’”[14]

Yet, 93% of private sector employees, through largely their own choice, have no bargaining power to demand better wages and benefits.  Consider that million and billion Dollar corporations have teams of the brightest lawyers in the Country ready to suppress any worker demands and abolish a united workforce.  Imagine what bargaining power a lone employee making $10.00 an hour has to demand better wages from his/her employer.  That employee is likely to be shown the exit door.  It is time to swing the pendulum back in favor of the working American.

As a public employee, you may ask, “why do I care?”  1) The “Right-to-Work” trend in the United States is specifically designed to reduce the bargaining power of public sector labor associations just as the government and corporations have stripped private sector employees of bargaining power; 2) the decline of the middle-class and the tax Dollars associated with it will reduce local government revenues, which public sector wages are based on; 3) the future of civil unrest will continue to grow and as Police Officers, you are on the front lines.  If the anti-union advocates are successful in stripping public sector bargaining rights, the same decline in worker pay, benefits and job security will surely ensue.

It matters little whether you are Republican, Democrat, independent, conservative, liberal or of any other political philosophy, the present reality is that the wave of worker suppression affects every average American.  The only way to maintain the present bargaining rights of public sector employees and to reassert the rights of private sector employee is to stand united.  Police Officers, Firefighters and all public employees must speak with one voice and stand against the private interest groups and politicians seeking to strip our rights.  Private sector employees, your spouses, neighbors, and friends, should be encouraged to work together to improve their terms and conditions of employment.

Prophetically, John F. Kennedy said 55 years ago, “We are going to have over 300 million people living in this country in the year 2000. Many of them will live in this state. We are going to have to make sure that we pass on to our children a country which is using natural resources given to us by the Lord to the maximum; that every drop of water that flows to the ocean first serves a useful and beneficial purpose; that the resources of the land are used, whether it is agriculture or whether it is oil or minerals; that we move ahead here in the West and move ahead here in the United States. *** Pittsburgh, Wyoming, Montana, Wisconsin are all tied together. A rising tide lifts all the boats. If we are moving ahead here in the West, if we are moving ahead in agriculture, if we are moving ahead in industry, if we have an administration that looks ahead, then the country prospers. But if one section of the country is strangled, if one section of the country is standing still, then sooner or later a dropping tide drops all the boats, whether the boats are in Boston or whether they are in this community.”[15]


[1] Tankersley, Jim, Why the Middle Class Is Lost, The Washington Post, December 12, 2014.

[2] Smith, Elliott Blair and Phil Kuntz, Disclosed: The Pay Gap Between CEOs and Employees, Bloomberg Business, May 2, 2013.

[3] Id.

[4] Id.

[5] Id.

[6] White, Gillian S., Why the Gap Between Worker Pay and Productivity Is So Problematic, The Atlantic, February 25, 2015.

[7] Id.

[8] Wong, Vanessa, Top CEOs Make 331 Times the Average Worker. Does Anyone Care?, Bloomberg Business, April 18, 2014.

[9] Tankersley, Jim, The Devalued American Worker, The Washington Post, December 12, 2014.

[10] Id.

[11] Meyer, Jared, Why 78 Million Millennials Are Choosing Non-Union Jobs, The Fiscal Times, April 14, 2015.

[12] Collins, Mike, The Decline Of Unions Is A Middle Class Problem, Forbes, March 19, 2015.

[13] Id.

[14] Id.

[15] Senator John F. Kennedy in Cheyenne, Wyoming, September 23, 1960 – Lazere, Donald, at: http://historynewsnetwork.org/article/73227#sthash.ac93JuuV.dpuf

 

Workers’ Compensation and On-duty Illness/Injury Leave

Most OPBA collective bargaining agreements have a negotiated provision that allows employees who are injured on the job or in the line of duty and are unable to work to continue on their employer’s payroll and benefits for a limited period of time.  These provisions may be known as “On-duty Illness/Injury Leave,” “Injury On-Duty Leave,” “Wage Continuation” or some other title (referred to as IOD in this article) depending on each group’s CBA.  I frequently receive questions from employees who are injured on the job about their rights.  There is typically confusion about how these provisions work and what happens when they end.  Of course, each employee’s potential benefits depend exclusively on the negotiated language and specific terms in their CBA.  There are no civil service rules or state laws that require employers to continue your pay and benefits if you are injured on the job and unable to work (although employees may receive FMLA leave and may substitute their approved leaves of absence to receive pay).  Employees must follow the specific guidelines of the CBA to qualify for IOD.

As a backdrop to the discussion of “IOD” provisions, employees should know that Ohio has a statutory insurance policy for injured workers called the Bureau of Workers’ Compensation (BWC)[1].  The BWC is a complex system made up of employers, managed care organizations (MCO), insurance companies, a State board and State bureaucracies, which will not be fully analyzed here.  But it is important to know the basics to understand the interplay between the BWC and IOD provisions.  Any employee injured at work, no matter how seemingly minor or whether life threatening, should file a claim for coverage under the BWC.  Not all injuries will qualify and not all injury claims will receive coverage, but employees should document the injuries and apply.

According to the BWC, “within 28 days from the date your initial claim for benefits is filed, BWC will decide to allow or deny it.  By re­sponding to any inquiries from your MCO or BWC, you will quicken the de­cision-making process and the receipt of benefits. If you or your employer disagrees with our decision, either party can file an appeal with the Industrial Commission within 14 days.  If [the BWC] allows your claim and you cannot return to work for eight or more days, [BWC] will pay a percentage of the wag­es you lose as a result of the allowed work-related injury.”  In addition, the BWC will pay the medical claims as a result of the approved injury.  So in the absence of an IOD provision in the CBA or if the IOD claim is denied by the employer, employees still have a statutory right to receive compensation for lost wages as a result of a BWC approved work-related injury.

An IOD claim is a separate right defined by the CBA and may require different qualifications than the BWC claim.  Many employers will continue employees on their usual payroll system as a result of an on-duty injury which results in the employee being unable to continue to work.  Employers will provide benefits for a limited period of time in order to avoid having to make claims against the BWC.  The employer’s premiums or cost of paying into BWC will increase with each claim filed and the amount of each claim.  For employees that sustain injuries for which they are likely to return to work within 60 or 90 days or less, it may be more cost effective for the employer to continue to pay the employee rather than require that employee to go on the BWC wage benefits.  This is the reason why most IOD provisions have a limited period of coverage, usually 30 to 180 days.

Employees must read the IOD provision carefully to determine what is covered and what is not and when the employee must notify the employer of the claim.  There may be a notice provision that requires the employee to notify the employer within so many hours or days of the injury and to describe the circumstances of the incident and the nature of the injury.  Employees may be required to fill out a specific form.  Failure to follow the CBA requirements may disqualify the employee from receiving IOD benefits.  Also, some IOD provisions only cover “high risk” injuries, such as a result of an apprehension, training, motor vehicle accident with lights and sirens, or other injury sustained while performing law enforcement functions.  These provisions may exclude non-law enforcement injuries such as a trip and fall, routine driving incidents, or simple mishaps.  Further, some only provide wage continuation if the injury results in the employee being off-duty for more than 3, 5 or 7 days, otherwise the employee will simply use sick leave.  Almost all require that the injury be approved through the BWC process even if the employee is not seeking BWC wage benefits.  The employer may deny IOD benefits depending on the coverage provision and the circumstances of each case; however, the employee may file a grievance to contest the denial of the IOD coverage.  Obviously, employees who have claims denied through the BWC will be required to file an appeal through the BWC process.

In any event that you do not have IOD benefits or the employer has denied IOD coverage or your covered period has elapsed, employees are always entitled to approved claims through the BWC. Even for severe, life-threatening or debilitating injuries, employees may receive the IOD benefits for the covered period and then will transition onto the BWC temporary or permanent total plan or seek disability benefits through their respective pension plan.  An IOD provision is an additional negotiated benefit, not a substitute for the BWC process.  Hopefully, an employee will be able to return to full duty within the covered period in order to avoid going off their employer’s payroll.  However, even for non-covered claims or for long term illness/injuries that will extend beyond the IOD period, employees should consult with their BWC or disability attorney to seek options for work-related injuries.

 



[1] The OPBA does not provide legal representation for BWC claims.

 

Education is Key in Managing Member Expectations

By: Daniel J. Leffler

With regard to collective bargaining, historically in the public sector, employees could expect general wage increases in the 3-4% range for each year.  A review of the SERB Wage Settlement Report indicates that statewide wages increased an average of 2.94% from 2000-2008.  The average Consumer Price Index (CPI-U) or annual inflation rate during that period was 2.82% according to the Bureau of Labor Statistics.  As a former firefighter in 2001, our local saw wage increases in the 4-5% range following 9-11.  Many groups probably saw increases greater than 3% during that period with an average wage increase of 3.7% in 2001 according to SERB.  The CPI rose 3.73% in 2001.  It is, at least anecdotally, fair to say that wage increases were directly related to inflation in order for employees to maintain the value of their purchasing Dollar.  For healthcare, the percentage of employees actually contributing toward healthcare premiums was about 50% and, of those contributing, employee contribution rates were well under $100/month.  Ancillary Benefits, such as longevity, bonus pays, holiday pay, and vacation accrual were fairly stable and one could expect to seek increases in benefits each year.

Then the economic issues in 2009 came, followed by Governor Kasich’s attack on public sector bargaining through SB5.  At least for public safety forces, which were once thought of as recession and layoff proof, a hard reality started to hit.  Although SB5 was defeated at the state level, what we started to see was local governments taking the same approach; i.e.: reducing or eliminating ancillary benefits, demands that employees pay 15% of their healthcare cost, minimal wage increases, wage freezes or worse wage reductions and layoffs.

There is a lingering impression by employees that a 3% wage increase is still the norm and that once the local and federal economies started to emerge from the economic issues of 2009, there should be some form of catch-up (not the sauce).  Many times bargaining groups say that since they took wage freezes for three years, they now should get a 9% increase in year 1 of the CBA to make up for lost time.  However, according to SERB data, statewide wages increased by an average of 1.28% from 2009-2012 and it appears likely that the average for 2013 will be approximately 1.5%.  From 2009-2013, the CPI rose an average of 1.73%.  If we follow the same logic as the wage increases for the early 2000s, the actual wage increases since 2009 compared to the CPI are only about one-half of one percent behind the CPI benchmark.  Therefore, it does not appear that significant wage increases are likely in order to “catch-up” for previous freezes.

Further compounding the issue is the significant increase in healthcare premiums.  According to the 2013 SERB Report on the Cost of Health Insurance, healthcare premiums have increased by 115% since 2000.  As a result, employers have been attempting to shift more of the burden of healthcare to employees.  In 2013, nearly 90% of employees contributed toward the cost of healthcare premiums with a statewide average contribution rate of 12%.  The evidence suggests that neutrals have been buying into the employer demands.

Obviously, every jurisdiction has its own particular facts and circumstances.  However, as the local advocate, the bargaining committee needs to be aware of the practical difficulties in obtaining wage and benefit packages similar to those prior to 2009.  In addition to local factors and financial considerations, generally speaking, the trend continues that neutrals (fact-finders and conciliators) are more conservative than in the past.

So reality is not matching the members’ expectation and trying to educate employees is a difficult task, particularly where conciliation is an all-or-nothing outcome.  Conciliation entails a decision between two specific and often widely diverse proposals and neutrals select the most financially reasonable position.  Although the members expect and deserve 3-4% wage increases and that their cost of healthcare will remain consistent, that is not the present reality regardless of a jurisdiction’s financial ability.  When engaged in fact-finding or conciliation, the bargaining committee must fashion a final position that is reasonable and often far less than the members’ expectations.  As a consequence, members may be frustrated and perhaps angry when the outcome of negotiations do not meet these expectations.

The key for a local advocate is to first understand these constraints and second to educate members related to bargaining in the present reality.  While comparables between the local jurisdiction and surrounding employees performing similar work are vital in the dispute settlement process, they can also be useful in managing the membership’s expectations prior to the bargaining process.  Information is essential in keeping the members’ expectations well grounded and consistent with reality.



Last Updated (Saturday, 07 June 2014 13:42)

 

The Grievance and Arbitration Process - Part II

In Part I, I discussed the historical background of Collective Bargaining Agreements (CBA) and the evaluation of grievances.  The single most important question is “What does the CBA say about the subject?”  Part II will discuss the development of the arbitration process.  Through time the arbitration process and arbitrators have developed generally accepted standards and factors in deciding cases.  However, those topics will be discussed in future Articles.

A grievance, at its basic legal core, is a breach of contract.  Just as private parties who contract for goods or services can file a civil lawsuit for a party’s alleged failure to uphold the contractual bargain (a breach), the Union “litigates” the alleged breach of the CBA by the Employer to a neutral arbitrator.  Although, in theory, an Employer could also file a grievance under the CBA, typically Employers maintain the power to take corrective action and force the Union to seek arbitration.  CBA based claims provide remedies that include, among others, asking the employer to stop a certain practice, requesting a few hundred Dollars for a missed overtime or seeking the reinstatement of a wrongfully terminated employee.  Most CBA-based claims have potential remedies far less than the cost of retaining an attorney and initiating civil litigation.  The two forums in which litigation occurs are vastly different though.

Civil lawsuits by nature are complicated, lengthy and governed by procedural and evidentiary rules.  Even in the relatively simplest of cases, parties in a civil case often spend months or years arguing about a procedural technicality or what one party is required to disclose to the other party.  Depending on the complexity of the case, discovery deadlines may be set years out from the date the case is filed.  Parties file procedural motions and wait for the court to rule on motions, sometimes taking months or years also.  Parties are sometimes permitted to file an appeal of a procedural ruling, further delaying the process.  This is all before even setting the case for trial to address the “merits” of the claim and final judgment.  Civil litigation also favors wealthier clients who can afford the time and expense of the process particularly for claims that can range from hundreds of thousands to multi-millions of Dollars.

Parties to a contractual arbitration provision waive their right to a civil trial and to appeal the decision of the arbitrator on substantive grounds (on the merits).  “Arbitration is widely recognized as a more informal and less highly structured forum for dispute resolution than civil litigation.*** Arbitration is subject to the discretion of the arbitrator with respect to how the process is controlled and the liberties to be accorded advocates and witnesses.”  Wolf, Steven, The Arbitration Process and Arbitrability, 1-5 Labor And Employment Arbitration §5.01, (2013).  While the parties can agree to procedural rules within the CBA, most disputes are governed by the Code of Professional Responsibility for Arbitrators and Procedural Rules of the Federal Mediation and Conciliation Service (FMCS) or the American Arbitration Association (AAA).   Per Rule 27 of The AAA Labor Arbitration Rules, “The parties may offer such evidence as is relevant and material to the dispute, and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute.***  The arbitrator shall determine the admissibility, the relevance, and materiality of the evidence offered and may exclude evidence deemed by the arbitrator to be cumulative or irrelevant and conformity to legal rules of evidence shall not be necessary.

Arbitration has existed since the Greek and Roman empires. See Elkouri and Elkouri, How Arbitration Works, 5th Ed. 1997, p. 2.  “The modern development of international arbitration can be traced to the Jay Treaty (1794) between Great Britain and the United States, which established three arbitral commissions to settle questions and claims arising out of the American Revolution.  In the 19th century, many agreements were concluded by which ad hoc arbitration tribunals were established to deal with specific cases or to handle a great number of claims.  Most significant was the Alabama Claims arbitration under the Treaty of Washington (1871), by which the United States and Great Britain agreed to settle claims arising from the failure of Great Britain to maintain its neutrality during the American Civil War.” Domke, Martin, Encyclopaedia Brittanica, (2013).  Arbitration was further expanded by The Federal Arbitration Act of 1925 which enforced contractually based arbitration provisions and required the parties, under certain circumstances, to submit to arbitration rather than civil litigation.  Modern Labor/Management arbitration has generally expanded with the expansion of collective bargaining and is currently used by all the major professional athletic groups.

Employees and management may be distrustful or skeptical about the usefulness of arbitration.  Employees who are subject to a grievance and arbitration provision often ask why their claims must go to arbitration and not to civil court or falsely believe that even if they lose at arbitration, they can submit the matter to a Court.  The simple answer is that parties have agreed to arbitration in the CBA and are contractually bound by the process.  However, both parties must understand the more complex development of arbitration.  Arbitration is a method of peacefully and economically settling labor disputes without resort to strikes, lockouts or costly civil litigation.  The parties obtain a final award often within months of the dispute which can reduce strife within the workforce.  The process provides employees who seek non-economic or very low value claims an opportunity to argue their case without the expense of civil litigation and the necessity to jump through complex procedural hoops.  Finally, the process itself serves to educate the employer about problems within the organization and provides labor a forum to address their concerns.


[1] Future articles will discuss the interpretation of CBA language.


Last Updated (Saturday, 14 December 2013 16:54)

 
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