Alaska Employment Law

Many collective bargaining agreements contain grievance procedures specifying that when a grievance proceeds to arbitration, the arbitrator will be selected from a panel obtained from either the American Arbitration Association or the Federal Mediation and Conciliation Service.  Because there are significant differences in the services provided by these two organizations, a descriptive comparison may be useful to labor arbitration practitioners.

As a preliminary matter, it should be noted that not all collective bargaining agreements provide for arbitrator selection through the AAA or FMCS.  The contracting parties are free to designate whatever arbitrator selection method they desire.  Some parties choose an arbitrator from a panel maintained by a state labor relations agency.  These panels typically contain mostly local arbitrators and are provided free of charge.  The Alaska Labor Relations Agency currently does not maintain a roster of arbitrators.  Other parties, particularly those with a high volume of arbitrations, may decide to establish a “permanent panel” of arbitrators for the duration of the labor agreement.  Permanent panels are usually created by the parties during the contract bargaining process, and arbitrators may be selected for individual cases on a rotating basis, by alternately striking names, or by mutual agreement.  Another method of arbitrator selection, known as a “direct appointment,” is for the parties to mutually agree on an arbitrator for a particular case, bypassing the panels available from the AAA, FMCS, or a state labor relations agency.  This method is most often used by experienced parties who are already familiar with the arbitrator community and are able to agree on the use of a particular arbitrator.

The American Arbitration Association (www.adr.org) provides panels of arbitrators for many types of disputes, including labor-management, employment (i.e., a dispute between an employer and a non-union employee), commercial, construction, consumer and insurance cases.  According to the latest AAA statistics, it handled 12,138 labor-management cases nationwide in 2006, which includes all labor matters ranging from a simple request for an arbitration panel to the full-service administration of a case.  Of this total number of cases, only 613 were administered by the AAA’s Western Case Management Center in Fresno, California, which handles all cases for the western United States, including Alaska.  The vast majority of AAA labor cases are filed with its northeast and midwest offices.  In 2006, the AAA issued 3,031 labor-management awards, of which only 120 were administered by the Western Case Management Center.

The AAA currently has approximately 950 arbitrators on its labor panels nationwide, including 29 in the Seattle region which covers the Pacific Northwest including Alaska.  No figures are available on the breakdown of attorney versus non-attorney arbitrators on the AAA labor panel, but I would estimate that approximately two-thirds are attorneys.  For labor cases originating in Alaska, the AAA typically will provide arbitrators from its Seattle region panel, usually (but not always) including Alaskan arbitrators.  If parties to an Alaska case desire Alaska arbitrators, it is helpful to specifically request this.  Parties may also request specialized panels of arbitrators with expertise in a particular industry or subject matter. 

Labor-management cases are administered under the AAA’s Labor Arbitration Rules, a copy of which may be obtained from its website.  There are three levels of service that parties may request from the AAA in labor cases.  For “list only” service, parties may request a list of up to 15 arbitrators from the labor panel.  Within 48 hours of the request, the AAA will provide the list of arbitrators and their biographical information.  The parties then make their own arrangements to select and contact the chosen arbitrator, and the AAA closes its file.  The AAA fee for list only service is $75 per party.  For “list with appointment” service, which costs $100 per party, the AAA provides a list of arbitrators and their biographical information and, when the parties have selected their arbitrator, the AAA contacts the arbitrator, verifies that he or she is willing to take the case, and then formally appoints the arbitrator to the case.  For “full service” cases, the AAA provides the arbitrator list and biographical information, makes the formal appointment of the arbitrator, schedules the date and location of the arbitration hearing, and monitors the case through the issuance of the award.  The AAA fee for full service cases is $200 per party.  If a party requests a postponement and rescheduling of a hearing in a full service case, the AAA charges $150 to the party responsible for the postponement.

The Federal Mediation and Conciliation Service (www.fmcs.gov) maintains a roster of arbitrators for labor-management arbitrations under collective bargaining agreements.  Unlike the AAA, the FMCS focuses primarily on labor-management relations and does not administer other kinds of arbitrations.  FMCS arbitrator selection procedures are governed by federal regulations, but the FMCS does not have a detailed set of procedural rules for the arbitrations themselves (like AAA’s Labor Arbitration Rules).  Although the FMCS has regional offices around the country, it administers labor cases from its headquarters in Washington, DC.  In FY 2006 the FMCS handled 16,854 labor arbitration panel requests nationwide, including 32 from Alaska.  The FMCS panel requests were somewhat more geographically balanced than those made to the AAA, with the highest numbers coming from Ohio, Illinois, Colorado, Arizona, Michigan and Florida.  During FY 2006, arbitrators on the FMCS roster issued 2,473 awards, including 69% in private sector cases, 19% in the federal sector and 12% in the (non-federal) public sector.  These numbers, which have been relatively consistent over the past few years, dispel the notion that FMCS panels are requested primarily in public or federal sector cases.

In FY 2006 the FMCS arbitration roster contained a total of 1,281 arbitrators nationwide, with 1 in Alaska (recently increased to 2), 35 in Washington and 22 in Oregon.  While precise information is not available, it is reasonable to assume that many if not most of the arbitrators on the AAA labor panels are also on the FMCS roster, although the FMCS roster has a total of about 330 more arbitrators. 

Unlike the AAA, the FMCS does not offer full-service administration of labor cases but primarily provides panels of arbitrators for individual cases.  A panel may be requested online for a total cost of $30, or by fax or mail, in which case the total cost is $50.  Three geographical preferences may be requested:  Metropolitan, which includes only arbitrators whose address is within 125 miles of the site of the dispute; Sub-Regional, which may include a portion of a state, an entire state or several adjacent states; and Regional, which is a larger grouping of adjacent states.  The FMCS uses an elaborate system of geographical coding to create its arbitration panels.  For Alaska cases, a Sub-Regional panel would be drawn from arbitrators in Alaska, Washington and Oregon, while a Regional panel would be drawn from arbitrators in Alaska, Washington, Oregon, Idaho, Montana, Wyoming, Utah and Colorado.  If a panel request does not indicate a geographical preference, the default selection will be a Regional panel.  The FMCS accepts requests for arbitrators with specific issue and industry experience or professional affiliations, provided both parties agree to the request or there is language in the collective bargaining agreement allowing such a request.

In choosing between the AAA and the FMCS for an Alaska case, the bottom line is this:  if you are relatively unfamiliar with labor arbitration and want full-service case administration from start to finish, albeit at a higher cost, the AAA is the only choice.  If you are already familiar with labor arbitration and the arbitrators who handle Alaska cases, and simply want a panel list for a particular case, either the AAA or the FMCS can provide this service, although the FMCS will be less expensive.  For Alaska cases, regardless whether the AAA or FMCS is used, the arbitration panel is likely to be drawn from many of the same arbitrators in Alaska, Washington and Oregon, unless a party requests or receives an FMCS Regional panel which could include arbitrators from an eight-state area and might not include any Alaska arbitrators.  To ensure that Alaska arbitrators are included on a panel, it is important that a party specifically ask for this in their panel request.

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Robert W. Landau has been a full-time labor and employment arbitrator and mediator since 1991.  His practice is based in Anchorage and he handles cases throughout Alaska and the western United States.  He is a member of the AAA and FMCS arbitration panels.  He may be contacted at rlandau@gci.net