By Attorney Jackie Schmidt
If you are a union member and your grievance has been advanced to arbitration. What should you expect next?
At this point, your employer has denied your grievance and any contract violations alleged within. Your union decided to advance your grievance to arbitration. The first thing the attorneys and representatives involved will do is select an arbitrator and then schedule a hearing date. Do not be alarmed if your scheduled arbitration date is many months away; this is very typical, as there are several schedules that need to be accommodated when scheduling the hearing.
Once the hearing is scheduled, typically the union attorney, which could be an in-house attorney (the union's general counsel) or outside counsel (for example, an attorney from CTM Legal Group), will reach out to you and your union representative to get a better understanding of the incident that led to the grievance being filed. At this stage, it is helpful to provide the assigned attorney with any relevant documentation and witness contact information. Once the attorney has a solid understanding of the case, the attorney will send a request for information to the employer. Typical requests include things like your personnel file, timesheets, seniority lists, surveillance videos, comparable disciplines, etc.
In the weeks leading up to the hearing, the attorney will prepare you for direct examination. During this preparation, the attorney will run through all the questions they plan to ask you at the hearing. the attorney will also prepare you for any questions the employer's attorney may ask you at hearing during cross-examination
If a settlement is not reached prior to the scheduled hearing date, the parties will meet (either in person at an agreed upon location or virtually) for the arbitration hearing. The order in which each side presents their case depends on the underlying issue. If it is a contract interpretation case (issues involving overtime, shift-bids, benefit time, seniority, etc.), the union has the burden to prove the employer violated the terms of the contract and will present their case first. If it is a discipline case (issues involving reprimands, suspensions, terminations, etc.), the employer has the burden to prove it had just cause to impose the discipline and will present their case first.
To establish just cause, the employer must demonstrate two things: (1) the employee committed the act or omission alleged against them, and (2) the discipline imposed “fits the crime.” To prove the employee committed the act or omission, the employer must present evidence that supports their adverse employment action by the “preponderance of the evidence.” This means that the employer has established that is more likely than not that the employee engaged in the misconduct alleged against them. However, higher standards of proof can be required in cases where the employer accuses the employee of an action involving moral turpitude. For the discipline to “fit the crime,” most arbitrators consider whether the contract requires progressive discipline, whether the discipline is for punishment rather than correction, whether the Employer followed the procedural requirements when imposing the discipline, the employee's past record, the employee's length of service with the employer, whether the employee had notice of the rules, and whether the Employer regularly enforces this rule.
There are three potential outcomes: (1) sustaining the grievance, (2) partially sustaining the grievance, and (3) denying the grievance. Sustaining the grievance means the arbitrator sides with the union's argument and will order the Employer to make the employee whole. A ‘make whole' remedy means the employer must restore the employee to the position they would have been in absent the contract violation. This includes things like back pay, restoration of seniority status, etc. There are no additional damages awarded (like punitive damages) in arbitration proceedings. Please note that in cases where back pay is awarded, the amount of back pay will be reduced by any wages the employee earned during the same period as the employer's violation – these wages are ‘mitigating wages.' Partially sustaining the grievance means the arbitrator is split between the parties. In discipline cases, partially sustained grievances typically occur when the arbitrator finds that the employer has proved the employee committed the misconduct alleged against them but finds that the discipline imposed is improper. In those cases, the arbitrator will typically impose a lower discipline (i.e., reducing a termination to a suspension or reducing the length of a suspension). Denying the grievance means the arbitrator sides with the employer and whatever disciplinary action or contract interpretation taken by the employer stands. In rare termination cases, an arbitrator can award lost wages but sustains the termination and the employee does not return to work.
CTM Legal Group represents unions throughout Illinois with labor grievance arbitration in both the private and public sectors. Contact CTM Legal Group today for more information or assistance with your arbitration.