How to Win a Labor Arbitration

Arbitrations under a collective bargaining agreement might not garner the glitz of a jury trial, but they can be as — or more — important, and they happen much more often. They can involve tens of millions of dollars, key aspects of operations, union/management relations, and whether a dangerous employee remains employed. For attorneys and advocates, they are more like the ancient practice of law: no discovery, limited use of evidentiary rules, cross-examination on the fly, the need for immediate decision-making, and an actual decision rather than a compromise.

While uncertainty is built into this wild west system, there are definite ways to maximize the chances of winning. If you are an executive or in-house counsel making decisions about arbitrations, a Human Resources manager managing the collective bargaining agreement (CBA) and union relations, or an attorney or advocate handling the arbitration, you need to know how to win. While a thorough explanation would take an entire semester, here are some key tips:

1. Pick your cases to arbitrate: Not every grievance needs to be arbitrated. Consider your chances of prevailing, the existence of a National Labor Relations Board (NLRB) charge on the same issue, the impact that a positive and negative result will have on the plant, how it will affect bargaining and union relations, and the availability of witnesses and evidence.
2. Comply with the CBA: The collective bargaining agreement provides a process that the parties have agreed to, including deadlines. Ensure you comply with the process. Consistent and well-reasoned grievance responses, and pre-arbitration documentation, can advance the ball. 
3. Choose your arbitrator carefully: The parties typically choose the arbitrator from a list provided by a service like the Federal Mediation and Conciliation Service (FMCS) or American Arbitration Association (AAA), often by a method of alternative striking or ranking the arbitrators. The identity of the arbitrator is often the most important variable in determining the outcome. Arbitrators have a background, track record and a reputation, and it is well worthwhile the time to research all of this including how they may have ruled on similar issues.
4. Anticipate and prepare extensively: While there is no discovery, there is a grievance trail and other history. Make sure you explore and gather all possible sources of information (e.g. bargaining history, past practice, witness statements, etc.). Identify your best witnesses and prepare them, including through mock cross-examination. Anticipate the union witness testimony and prepare key cross-examination questions in advance.
5. Be organized: Arbitrations move fast, and the flow can be derailed through lack of organization. Make it easy on the arbitrator and everyone else by organizing and marking exhibits and having witnesses ready to go at the allotted time.
6. Give a good opening statement: Like in many situations, the first impression can carry the day. The arbitrator may know nearly nothing about the case before the arbitration, so it is important both to articulate a theme and set forth a roadmap for where you are going.
7. Be careful whom you call as a witness: Anyone who can talk can hurt you. While it is always a judgment call, pick your witnesses carefully, and if you are winning, consider cutting the number of witnesses.
8. Submit a great brief: While it depends on the contract and the practice of the parties, you often can submit a post-hearing brief. Support your themes and the evidence with arbitration authority (most arbitrators believe Elkouri, and Elkouri is the arbitration bible) and cases. Pro tip: submit the post-hearing brief in both .pdf and Word format to assist the arbitrator.
9. Use good decisions to resolve other issues: Scoring a victory on a certain issue can be used to convince the union to resolve or drop another arbitration and can influence an arbitrator in subsequent matters.