Thursday, November 19, 2009

Caveat Lectores on Labor Arbitration

In my practice, I have found that for a variety of reasons there is frequently a difference of opinion about the issues and important facts to be taken to a labor arbitration. The grievant has his agenda and theory of the case which is frequently completely unworkable. The union may see something else as important, and I will sometimes see still another issue or issues that may be relevant. As the attorney, my job is to assist the union in representing the interest of the individual and the entire union. The union has not only a duty (DFR) to the grievant, but also has to consider the impact any award will have on the membership.

Most labor attorneys will bring years of labor experience to the process and feel quite strongly about their ability to address the issues and perform their professional duties; therefore, they do not hesitate to advise their union clients on how to best approach an arbitration. That is their greatest source of relevancy and value to the client. However; no attorney has a crystal ball and does not know everything.

It is my sincere belief that it takes more skill and active restraint to act professionally and appropriately than to appear confrontational just to please the crowd. Too many attorneys act this way. These tactics are what eventually escalate to become “stupid lawyer tricks.” This is usually costly to the grievant/client in many direct and indirect ways. The purpose of the proceeding is to win the grievance not provide a theatrical venue for the attorneys to see who can make the most objections.

Most labor arbitrators have many years experience as either advocates or arbitrators or both. They are not a jury made up of regular people. They are not impressed with legal theatrics from either side. They do not appreciate seeing a lawyer mistreat a witness, a lawyer trying to protect his witness by objecting just to break up the flow of the questions or a witness obviously trying to mislead the arbitrator by providing evasive answers. They know bullshit when they see and hear it, and they punish those who have not figured it out.

And Oh yes, have a nice day?


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