WANT TO KNOW SOMETHING ABOUT A POTENTIAL ARBITRATOR—FOR FREE?
Many times a year unions try to find out more about an arbitrator before they pick him/her to serve on a permanent panel or just to do a case. The AFL-CIO lawyers operate an informal system sizing up how acceptable arbitrators are to unions. If you are willing to pay its subscribers’ fee, Cyberfeds.com keep tracks of the number of times an arbitrator finds for management, finds for the union or splits the case. It even tracks information about how often their decisions are appealed to FLRA. But both those sources are far less than perfect, e.g., they do not report on every decision an arbitrator has issued, the quality of the case the union put before him/her, etc. Here is a source you may not know about. The FLRA reports on every decision where an arbitrator was involved in a federal sector case and one or both parties were so dissatisfied that they filed exceptions with FLRA. Here is how to use it.
Click into the hyperlinked page we provided and a few inches down from the top of the page you will see a column on the right side labelled “Authority Search.” Near the top of the “Additional Search Options” there a block entitled, “Case Type,” and at the bottom one entitled “Decision Text.” In the “Case Type” block click “Arbitration Cases,” and then enter the name of the arbitrator in the “Decision Text” block. For example, enter the name of one of our favorite arbitrators, Roger Kaplan, and click “Search.”
If you did that the results should be a list of 38 cases. (Sometimes two arbitrators have the same name or one of the parties had the same name. So, you have to check to make sure that case involves the person you want.) Thirty-eight decisions is a pretty good sample size, especially when you consider these are his controversial decisions, not the ones both parties agreed were fine and needed no exceptions. If you take the time to scroll or even read through those decisions, here is what you can learn about that (or any) arbitrator:
- How often s/he decided for the union or management in these controversial cases? (Personally, we believe that doesn’t say much about the arbitrator unless the numbers are way out of whack.)
- Did s/he deal with any issues similar to the one you are going to give him, e.g., discipline cases, appraisal cases, leave cases, etc.? If so, read through those to see if he has any personal opinions about the issue, how he analyzes the issue, what kind of evidence he considers important, etc.
- How strong was s/he on remedies? It is one thing to sustain the union’s grievance, but it is just as important that the arbitrator impose a substantial remedy. Back pay is the most important remedy question in any significant arbitration case.
- Did s/he get overturned often by FLRA? That is not good under any circumstance we can think of. It means we have to hold and pay for a second hearing and/or decision, the final solution will be delayed even longer, etc.
- Which parties used an arbitrator on a regular basis? If the FLRA has a lot of cases on a particular arbitrator with the same union, it gives you someone to call at that union to get more information about the arbitrator. For example, it looks like NTEU uses Kaplan a lot.