Arbitration altushost

Arbitration 101: Why most teachers, police officers and others don’t stay fired

There’s generally an order of things when it comes to workers being removed from their jobs. A person commits a fireable offense. That person gets fired. That person remains fired. It’s really quite simple.   But it doesn’t work that way for everyone. The last part — person remains fired — often doesn’t happen with union employees working for Philadelphia, from firefighters to police officers to teachers. Their ability to regain jobs after being fired exists because of one word you’ve probably heard dozens of times but might not completely understand: arbitration. Last week, two fired schools principals embroiled in a district-wide cheating scandal were reinstated through arbitration. Both of them will also receive back pay. The district had fired them in 2014, along with another principal who lost her arbitration case and will remain fired. So what gives?

First things first, what’s arbitration?

It’s a process involving two opposing sides and a person who resolves their dispute known as an arbitrator. Each side is represented by a lawyer who argues the case for each side. The arbitrator listens to their testimony. There is no judge, jury or courtroom. These hearings take place at a building designated for arbitration disputes. A stenographer usually takes notes. The hearing might take place for only a day, the arbitrator might spend several days or weeks reviewing and making a decision. And the process before the hearing can last for a year. Whatever the arbitrator says goes, with the possible exception of appeals.

Why do employees go through arbitration?  

Contracts between employers and employees or employers and unions. The Philadelphia Federation of Teachers and the School Reform Commission, for instance, have a deal allowing for dismissed teachers to either appeal their dismissal directly to the SRC or to seek arbitration. Similar such deals exist between unions and employers throughout Philadelphia and the rest of the country.

Who usually wins?

Regular, non-union employees in arbitration cases are more likely to lose to their employer in arbitration than win, according to studies. Individual employees are likely going through arbitration the first time when they do it, and employers are experienced. They have an advantage. Some studies also suggest a bias from the arbitrator, who is possibly dependent on getting picked to arbitrate a case again. The individual employee is not likely not going to be picking an arbitrator again.  When it comes to unions, the balance seems to shift. Marina Angel, a professor of law at Temple Law School, used to represent unions in arbitration cases against New York City and a hospital corporation in New York City. And Angel did quite well. “I never lost in arbitration,” she said. In 2010, the Fraternal Order of Police told the Inquirer that about two-thirds of fired police officers in the last five years were reinstated to the force after arbitration hearings.   Angel suggested the preparedness of the opposition’s lawyers as reason for unions’ success in arbitration cases. She said the hospital corporation her client went against had a staff of two lawyers for the corporation’s entire workload and that when it came to arbitration they’d often be dealing with multiple contracts with multiple unions and not know enough about the case.

Is that the same with arbitration cases regarding teachers?

Lately it has seemed that way. As noted above, two out of three principals embroiled in a major cheating scandal will be able to return to the district after arbitration. Over in New Jersey this month, a teacher an arbitrator ruled him reinstated despite being late for work 111 times in two years (he said he was late because he was eating breakfast). Linda Harris, the Philadelphia Federation of Teachers’ grievance chair and assistant to the president, said she couldn’t estimate how many cases the PFT had won in recent years and opined that the arbitrator’s decision is often surprising: “There are times when I think that we have a very strong case but the arbitrator disagrees and rules against us. There are times when just the opposite happens. But you never know what an arbitrator is going to say.”   She said she does consider the arbitration process fair. “The arbitrator is an independent arbitrator paid by both management and the union,” Harris said. “We split the cost. And I don’t know that there is a process that’s any fairer than that.” The school district could not be reached for comment.

Is there a particular strategy lawyers take when their defending fired employees?

Angel said lawyers will mostly look at whether the people who fired an employee took the proper procedures during the firing process and adequately documented the grounds for dismissal. Employers don’t always do that. It’s exactly what happened in New Jersey. The arbitrator ruled the district didn’t give due process to the teacher who was late 111 times.

So no matter what, a fired teacher has a chance for arbitration?

Yes but only a chance. A fired teacher must go to the PFT, said Harris, and then the PFT decides which firings it will challenge by going to arbitration.

How many fired teachers get arbitration hearings per year?

Somewhere between six and 12, Harris said. She said about the same amount apply for a hearing each year and the PFT chooses not to take their case.

How is an arbitrator chosen?

It depends on the contract between the two parties seeking arbitration. But most of the time it involves the parties agreeing on an arbitrator. Most are lawyers or former judges who specialize in these types of cases.

How much does an arbitrator cost?

The cost for paying the arbitrator is split between the two parties, and it’s usually quite expensive. A one-day arbitration hearing will generally cost at least $1,000, plus each side has to pay its own lawyers.

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