Pocket Guide to Public Sector Arbitration: California

By Bonnie G. Bogue and Frank Silver
3rd edition, 2004

$12 each

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A clear explanation of every step in the arbitration process — from filing a grievance to judicial review of arbitration awards. Specifically tailored to the public sector, the guide covers the hearing procedure, rules of evidence, closing arguments, and remedies. Covers grievance arbitration, as well as factfinding and interest arbitration. With table of cases, bibliography, and index.

Coauthor Frank Silver has been an arbitrator and mediator since 1987. Prior to that, he was in private practice as a labor lawyer and, for several years, he served as an administrative law judge with the Public Employment Relations Board. He is a member of the National Academy of Arbitrators. Coauthor Bonnie Bogue has been an arbitrator and mediator since 1977, and is a member of the National Academy of Arbitrators. Formerly director of the California Public Employee Relations Program, she contributed to its journal, CPER, from 1970 until 1994. She also is coauthor of several titles in CPER’s Pocket Guide Series.

 

Contents

I. Introduction	1
A. Origins of California Public Sector Arbitration	2
B. Types of Dispute Resolution	4
Grievance arbitration vs. interest arbitation and factfinding	4
Binding vs. advisory arbitration	5
Arbitration vs. mediation	6
II. Grievance Arbitration Procedures	8
A. Types of Grievances	8
B. Steps of the Grievance Procedure	9
C. Processing the Grievance	10
Filing the grievance	10
Time limits	10
Proceeding to arbitration	11
D. Arbitrability: Procedural and Substantive	12
Procedural arbitrability	13
Substantive arbitrability	13
E. Costs of Arbitration	14
F. Selecting an Arbitrator	15
G . Setting the Arbitration Hearing	16
Pre-hearing contact with arbitrator	16
Date and location	17
Cancellations and postponements	17
H. Pre-Hearing Procedures	17
Discovery	17
Subpoenas	18
Pre-hearing briefs	19
Pre-hearing conference	20
I. The Hearing	20
Types of hearings	20
Official record	21
Order of the hearing	21
Statement of the issue	22
Opening statements	23
Burden of proof	23
Quantum of proof	24
Documentary evidence	24
Witnesses	25
Sequestration of witnesses	27
Witness testimony	27
Direct examination	28
Cross-examination	29
J. Rules of Evidence	30
Objections	30
Relevance	31
Hearsay	32
Hearsay exceptions	33
Non-hearsay statements	33
Opinions	34
Privileged communications	35
Offers of settlement	36
Objections to form of question	36
K. Closing Arguments and Briefs	39
L. The Award	40
III. Grievance Arbitration Standards	43
A. Discipline and Discharge	43
Just cause	43
Procedural principles	44
Substantive principles	49
B. Remedies in Discipline Cases	54
C. Contract Interpretation Grievances	56
Clear or ambiguous language	56
Rules of contract interpretation	57
Forfeiture	58
Negotiating history	58
Past practice	59
Settlements and arbitration awards	60
Contract interpretation and external law	61
Management rights	62
D. Remedies in Contract Interpretation Cases	62
IV. PERB and Grievance Arbitration	65
A. Deferral Principles	65
B. Pre-Arbitration Deferral	66
C. Post-Arbitration Deferral	68
V. Courts and Grievance Arbitration	70
A Introduction	70
B. Petitions to Compel Arbitration	71
General standards	71
Grounds for compelling arbitration	72
Waiver of the right to arbitrate	73
C. Petitions to Confirm or Vacate Arbitration Awards	74
General standards	74
Public policy; protection of statutory rights	75
Arbitrator's remedial authority	77
VI. Interest Arbitration and Factfinding	79
A. Introduction	79
B. Factfinding Procedures Administered by PERB	80
Preliminary procedures	80
Hearing procedures	81
Post-hearing procedures	82
Factfinder's report	82
C. Impasse Resolution in Local Government	83
D. Impasse Resolution in Public Transit	84
E. Interest Arbitration	85
Standard interest arbitration	85
Final-offer interest arbitration	86
Med-arb	86
Tripartite arbitration	87
F. Factfinding and Interest Arbitration Criteria	87
Employer's ability to pay	88
External salary and benefit comparisons	89
Recruitment and retention	89
Internal salary comparisons	89
Cost-of-living increases	90
Past practice and negotiating history	90
VII. Table of Cases	92
VIII. Bibliography	100
IX. Appendix	103
California Arbitration Act	103
X. Index	115