Disputes Generally, an arbitrator may only hear a “grievance” (as defined by the agreement) that is processed to arbitration – arbitration the final step in the grievance procedure – If matter is not a grievance May not be raised through the grievance procedure Is not arbitrable A case is not arbitrable if an arbtrator is not authorized to hear it 1

Arbitrability An argument by one party, usually the employer, that the arbitrator does not have the authority to hear the case Processing a case through the grievance procedure does not mean that the employer acknowledges that it is arbitrable – Arbitrability contention must be raised through the grievance procedure – “Waived” or “Maintained” 2

Two Types of Arbitrability Procedural Arbitrability – Party (union) did not meet the procedural requirements of the procedure Time limits – Waiver by parties? Did not properly specify grievance Substantive Arbitrability – The complaint of the grievant/union does not meet the requirements of a grievance as defined in the collective bargaining agreement Blend of Procedural and Substantive – Example – an amendment of the grievance 3

Resolving Arbitrability Disputes Procedure – Technically by courts – Practically by arbitrator Doubt to be resolved in favor of arbitrability – U.S. Sup. Ct. in Warrior and Gulf – Preference for arbitration and parties process for resolving dispute 4

Arbitrator Resolution of Arbitrability Issue Single Hearing (most common) – Parties agree to submit to arbitrator Arbitrability Merits – Arbitrator will first decide arbitrability Not arbitrable – no decision on merits Arbitrable – decision on merits Bifurcated Hearing – First Hearing on abitrability – If arbitrable, second hearing on merits

6 Arbitrator Selection Systems Ad Hoc – Federal Mediation and Conciliation Service – State Agency (Michigan Employment Relations Commission) – American Arbitration Association (private) Permanent Panel – Rotate – Earliest hearing date Single Umpire

7 Issues Associated with Selection Systems Ad Hoc – Arbitrator clean slate, absence of preconceptions – Not familiar with industry or parties Permanent Panel – Familiar with parties – May have preconceptions of parties Single Umpire – Similar to permanent panel – Certainty

Scope of Arbitrator’s Authority Narrow Limited by – collective agreement arbitrator may not render a decision inconsistent with the collective agreement – “may not add to, subtract from, modify, or otherwise alter” Issue presented Record provided – What evidence to be considered? – Entire agreement or only those provisions cited?