Are you ready to defend your work in arbitration?

Industrial engineers may be involved in different types of litigation. Arbitration of productivity expectations remains the most likely type of litigation that will involve industrial engineers. Arbitration around productivity expectations arises from a discord between the associates, often represented by a union, and management around the accuracy and fairness of the expectations that are in place. This post discusses a situation in which an industrial engineer was involved in the development and implementation of these productivity expectations and how the engineer will certainly be playing a pivotal role in the arbitration.

How did we get there?

Industrial engineers are most often involved in arbitration when their work is put into question by the associates and their union. Usually this occurs when an associate is disciplined for failing to achieve the productivity expectations developed by the IE; the union, on behalf of the disciplined associate, will contest the disciplinary measure through the grievance process outlined in the collective bargaining agreement ("CBA").  When the parties (company and union) fail to resolve the grievance on their own, the grievance may escalate into arbitration where both parties will have to debate in front of an arbitrator the merit of their case. The result of the arbitration will then bring a binding resolution to the issue.

A well designed work measurement program is your best option to avoid arbitration. Arbitrations are very expensive; most unions and companies will work to avoid any arbitrations if they know they have little to no chance of winning.

What is the likelihood you will be involved in an arbitration?

If you are involved in implementing workforce management systems, designing work measurement programs, or building engineered labor standards it is quite likely that you will be involved in at least one arbitration over the course of your career. Even if the quality of your work is excellent, there are always situations through which your work may still be challenged. To this end it is advisable to understand the union-company dynamic present in your environment.

A look at the arbitration process

As previously stated, an arbitration becomes necessary when the parties (union, company) fail to come to an agreement regarding a grievance. Once the parties agree on an arbitrator, the actual process can begin and hearing dates will be scheduled. In our experience, most arbitrators, in the first instances of the process will try one last time to bring the parties together through a mediation process. Again, our experience has shown that the parties rarely agree during the mediation phase which means the arbitration will proceed. The next step in the process is to determine who has the burden of proof. This is what determines who will be first to argue their side of the case.

Each side will present their proof according to the order determined with regards to who has the burden of proof. This is typically the longest part of the process that varies greatly in time depending mainly on the complexity of the case and the number of witnesses. This part looks quite similar to what you would see on shows or movies that depict trials. Witnesses for each side will give their testimony and the opposing side will have the opportunity to cross-examine the witness, which may be followed by recross examination. Once both sides have presented their case through testimony and exhibits (e.g. documents), each side will present their closing arguments.

Than starts the waiting period for the arbitrator to render his/her decision. Depending on the complexity of the case, a decision may take a few days, a few weeks, or even a few months. Once rendered, this decision is final and binding.

Some final thoughts

If you do need to defend your work in arbitration, a few points to consider include:

1. If possible, select an arbitrator that has a technical background (preferably an industrial engineer).
2. Spend the time necessary with your legal counsel to prepare all the witnesses. Cases can be lost quickly when a witness gives a poor testimony.
3. Consider bringing in an expert witness to strengthen your case.
4. Practice your testimony and show confidence.
5. During cross-examination, remember that the only person you are trying to convince is the arbitrator. This is the person you should be looking at.

Good luck!