Robert W. Chester: Dispute Resolution Service

08/13/2021

The NLRB has a new General Counsel. On 8/12/21 NLRB General Counsel Jennifer Abruzzo issued a memorandum to Regional Offices regarding mandatory submission to the Division of Advice. This is something that most, if not all, new General Counsels do. Although the new memo covers a myriad of areas and issues, I note below two areas that are of note in arbitration. In the memo she states that the noted areas are issues she wants to reexamine to determine whether change is warranted. As an arbitrator I will keep watch for any changes in these areas.

• Cases involving the applicability of California Commerce Club, 369 NLRB No. 106 (2020) (overruling Professional Janitorial Services of Houston, 363 NLRB No. 35 (2015) and finding confidentiality provision of arbitration agreement that prohibits “disclosure of evidence or award/decision beyond the arbitration proceeding” lawful under the Act).
• Cases involving the applicability of United Parcel, 369 NLRB No. 1 (2019) (overruling Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014), which required the party urging deferral to demonstrate that (1) the arbitrator was explicitly authorized to decide the ULP issue, (2) the arbitrator was presented with and considered the statutory issue or was prevented from doing so by the party opposing deferral, and (3) Board law reasonably permits the arbitral award, and, instead, returning to the standards of Spielberg Mfg,112 NLRB 1080 (1955) and Olin Corp., 268 NLRB 573 (1984)).

05/07/2021

What is mediation and how does it differ from arbitration? Mediation is a process where the parties involved want to reach a solution that both or all parties agree to. For mediation to be successful it required conciliation and a desire to reach a settlement. The essence of mediation and conciliation is compromise. A mediator does not make a decision, the final decision on a settlement is up to the parties. A mediator’s aim is to guide the parties to come to a voluntary resolution. A mediator will make suggestions and proposals, but the decision on whether to follow those recommendations is left up to the individual parties. Mediation works when the parties want a negotiated settlement.

In arbitrations, the parties are compelled by their own agreement to accept the decision of an arbitrator as final and binding. The objective of arbitration is adjudication, not compromise. Arbitration works when mediation has failed to produce a resolution.

There is a hybrid model involving a cross between mediation and arbitration. It is generally referred to as “medi-arb”. It is a process where a neutral is brought in to engage in mediation and if mediation fails to reach an agreement, the mediator issues a recommendation/advisory opinion. This recommendation/opinion is not final or binding. It is a recommend action. The parties agree prior to the “medi-arb” that the recommendation/opinion shall not be presented to the arbitrator should the case subsequently be arbitrated. Of course the mediator can not testify at any subsequent arbitration and offers of compromise made during mediation are not to be presented in arbitration.

02/13/2021

Bob Chester works as an Arbitrator, Mediator and/or Fact-finder and will develop a dispute resolution process that best meets the needs of the parties to the dispute. He conducts traditional arbitration, mediation or fact-finding or any hybrid combination that best meets the particular needs of the situation. I am a US Army Veteran and my practice is a Veteran Owned Business.

I am a member of the FMCS Roster of Arbitrators and the Pennsylvania Bureau of Mediation, Department of Labor and Industry Roster of Arbitrators. I am a member of the Western Pennsylvania Chapter of The Labor and Employment Research Association (LERA) and the Three Rivers Area Labor Management Committee (TRALMC).

I have an MBA Degree from the Foster College of Business at Bradley University and earned a Bachelor of Science in Business Administration from Towson University with a concentration in Personnel and Labor Relations. I am certified as an Alternate Dispute Resolution Mediator and as an Arbitrator from the Federal Mediation and Conciliation Service. I completed the Harvard Law School Program on Negotiation and have completed many continuing education courses through Harvard's On Line courses in Leadership and Management as well as post graduate courses in negotiations and dispute resolutuion. I taught dispute resolution courses at NLRB national training conferences. I have experience in many different private and public sector cases.

06/30/2020

I am often asked how my arbitration practice works. I am a sole practitioner and my practice is a veteran owned business. I write comprehensive decisions in a timely manner following a hearing on the facts. As arbitrator, I preside over the hearing. My decisions usually issue within 10 days of receipt of briefs, if post hearing briefs are filed. When briefs are not filed the decision is normally issued within 7 - 14 days after the close of the hearing. Arbitration is a procedure voluntarily entered into by parties to a dispute who desire that the dispute be decided by an impartial person, whose decision is based on the merits. Normally the is a collective bargaining agreement that sets forth the arbitration process. But arbitration can be used to settle any dispute. It is not mediation and it is not a trial. It is a way to resolve disputes in a timely manner.

12/24/2019

In a decision released in United Parcel Service, Inc., 369 NLRB 1 (2019), the National Labor Relations Board returned to its previous standard for post-arbitral deferral. The post-arbitral deferral standard is used by the Board to decide whether to defer to an arbitrator’s prior resolution of a grievance concerning an employee’s discipline or discharge that has been alleged to violate the National Labor Relations Act. Under the restored standard, the Board will defer to the arbitrator’s decision where (1) the arbitral proceedings appear to have been fair and regular, (2) all parties have agreed to be bound, (3) the arbitrator considered the unfair labor practice issue, and (4) the arbitrator’s decision is not clearly repugnant to the Act.

This decision overrules Babcock & Wilcox Construction Co., Inc., 361 NLRB (2014), and returns to the previous post-arbitral deferral standards set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984). The UPS decision restores policies for pre-arbitral deferral established in United Technologies Corp., 268 NLRB 557 (1984), and for deferral to pre-arbitral settlement agreements set forth in Alpha Beta Co., 273 NLRB 1546 (1985).

If the parties submit a grievance to arbitration and also files an Unfair Labor Practice charge with the NLRB it is important that the arbitrator be made aware of the pending ULP charge. Thus, the arbitrator can address the standards in the decision and help to make sure the standards are met.

04/20/2019

I've recently been asked to explain what it is that I do when I conduct an arbitration. First and foremost, I must be fair and permit both parties to be heard. Labor and employment disputes are a natural characteristic of our employment system. Disputes occur in the workplace. Arbitration is a procedure that is voluntarily chosen by the parties who want a dispute determined by an impartial tribunal of their own mutual selection. It isn't a new procedure, having been in use for many centuries. Arbitration is quicker, cheaper and much less complex than more formal litigation. Arbitration has the advantage of the subject matter expertise of the Arbitrator and the saving of time, expense and trouble. The U.S. Supreme Court has acknowledge that arbitration, rather than court litigation is the superior method of resolving employment issues.

02/07/2019

I'm often asked what services I provide. How can dispute resolution resolve workplace issues? Although employment and labor arbitration is the primary service of the practice, I also do fact finding and mediation. Many people wonder how these services differ. In fact-finding I investigate and assemble the facts surrounding a dispute and then issue a report. This can be something that only one party to a dispute requests in preparation for litigation or simply to prepare for further discussions on the issue. It can also be something that both parties to a dispute request in an attempt to get "all of the facts on the table". If the parties so desire, they can agree that the fact finding report can be binding of the parties. But it doesn't have to be. It can just be designed to find out all of the relevant facts. Mediation is different. It is non-binding and it is designed to find compromise and common ground. I will not arbitrate a dispute where I have served as a mediator. Mediation works where both parties want a resolution, want to avoid litigation and need a neutral to help them find common ground. Arbitration is a more formal process, albeit much less formal and much less expensive than litigation. Arbitration is a process that is well recognized to be much quicker and a superior method of dispute resolution to litigation. It is final and binding. There are various types of Alternate Dispute Resolution where different techniques are merged together to find a process that will result in a solution.

10/24/2018

http://www.scotusblog.com/2018/10/argument-preview-how-should-courts-decide-if-parties-to-an-arbitration-contract-may-aggregate-their-claims/

An interesting article on whether courts should decide whether individual arbitration claims are to be aggregated together in arbitration. This matter is in the 9th Circuit.

The law of individual arbitration clauses has been a recent hot topic both in the courts and among the public. That is in part because of one of last term’s blockbuster cases, Epic Systems Corp. v. Lewis, in which the Supreme Court held that individual arbitration clauses in employment contracts w...

05/22/2018

The Supreme Court’s decision yesterday resolves the circuit courts split on whether class or collective action waivers contained in employment arbitration agreements violates the National Labor Relations Act (NLRA). They do not, the Court ruled in a 5-4 decision. The Supreme Court consolidated three cases from the Fifth, Seventh, and Ninth Circuits and heard the issue last October. SCOTUS decided that arbitration agreements that non-union Employers have that require employees to pursue work-related claims in arbitration, rather than in court, do not violate the NLRA.

05/22/2018

SCOTUS Decision