Newsletter Masthead                             email:

*   *   *  Labor Trends and Issues  *   *   * 

graphic line

Pacific Beach Case Documents

Five (5) of the most recent legal documents, including NLRB decisions, Court Orders and Adminustrative Law Judge Decisins and Orders in the case charging HTH Corporation, d/b/a PACIFIC BEACH HOTEL, with violations of the National Labor Relations Act for impeding the rights of employees of the Pacific Beach Hotel to select and be represented by the International Longshore and Warehouse Union, Local 142

Hawai‘i's Economy, State Budget and the Great
Recession: Past, Present, and the Future

A January, 2011 analysis of the Great Recession and its impact on the state budget by Economist Lawrence W. Boyd, Ph. D.
University of Hawai‘i - West O‘ahu
Center for Labor Education & Research

Is Hawai‘i'sTax System Stable?
Making Things Worse

A September 2009 Analysis by
Economist Lawrence W. Boyd, Ph.D.
University of Hawai‘i - West O‘ahu
Center for Labor Education & Research

Hawai‘i's Furloughs, Layoffs, Shortfalls:
Making Things Worse

A June 25, 2009 PowerPoint Presentation by
Economist Lawrence W. Boyd, Ph.D.
University of Hawai‘i - West O‘ahu
Center for Labor Education & Research

graphic line

Hawai‘i Union Density, 2001-2012
          Union Members     Represented by Unions    
Year total K   percent   total K   percent     US ranking  
2012     116 21.6% 124 23.2% 3rd of 50  
2011     113 21.5% 118 22.5% 3rd of 50  
2010     111 21.8% 120 23.5% 3rd of 50  
2009     123 23.5% 128 24.3% 2nd of 50  
2008     136 24.3% 143 25.5% 2nd of 50  
2007     130 23.4% 135 24.2% 3rd of 50  
2006 139 24.7% 146 25.9% 1st of 50  
2005 141 25.8% 145 26.7% 2nd of 50  
2004 126 23.7% 132 24.8% 2nd of 50  
2003 122 23.8% 127 24.8% 2nd of 50  
2002 120 24.4% 125 25.4% 2nd of 50  
2001 123 23.9% 133 25.9% 2nd of 50  

Union Density Statistics: State by State Comparisons

graphic line

Due Process an Essential Element of Arbitration, Speaker Says

Although parties to a collective bargaining agreement with arbitration provisions typically are eager to avoid the expense and delay that is characteristic of the public court system, they still have an expectation that arbitration procedures will provide many of the due-process protections of the formal court system, a speaker recently said at a conference sponsored by the Labor and Employment Relations Association.

Ronald Hoh, an arbitrator and member of the National Academy of Arbitrators, said that participants in arbitration expect procedures to conform to a variety of standards drawn from the public judicial system, including fundamental due process, notice, equitable administration, consistency of judgment, concern for precedent, and equitable determinations.

"Compliance with these expectations of the parties has become an essential element of just cause and of arbitration, and it is generally accepted that the arbitrator must review the equity of the administration of a grievance procedure as well as propriety of the disciplinary decision," Hoh said.

The meaning of the term "due process" is different in the public sector workplace than in the private sector, Hoh said. In the public sector, the actions of an employer are "state actions" with implications for employees' constitutionally protected property and liberty rights. Such rights may not be taken away by the state without "due process of law," a guarantee that remains in arbitration.

In the private sector, there is no state action involved, Hoh said, but even so, arbitrators use constitutional concepts of due process in analyzing the rights of employees and the responsibilities of employers.

Elements of Due Process
The first element of due process appropriate to the arbitration context is notice of prohibited conduct, Hoh said. Even before collective bargaining, employers found it useful to post notices in the workplace of expected conduct, and the concept of notice remains an "essential element of due process." The requirement may be met by actual notice-through posting notices or by giving employees information about prohibited conduct at the time of hiring-or through "constructive notice"-such as by issuing a rules handbook, which creates an implied obligation on employees to read the handbook.

Arbitrators also may find that they have to evaluate the reasonableness of any such rules, by examining such issues as the relationship of the rules to the workplace, their acceptance by the parties, and the history and fairness of their administration, he said.

A second element of due process is notice of the charges against an employee, Hoh said. Notice is essential to an employee who may wish to file a grievance, and arbitrators usually consider it improper for employers to impose discipline without giving the reasons for the action and giving the employee the information necessary to decide whether to file a grievance. As a result, arbitrators in general do not permit employers at a hearing to present evidence not previously made available to the employee.

A third element of due process is the right of the worker to confront his or her accuser, Hoh said. Arbitrators in general will not allow an employer to introduce a written account of the worker's conduct if the author of the account is not present for crossexamination. Similarly, arbitrators tend to uphold some aspects of the rule against hearsay testimony that is usual in the public court system.

A fourth element of due process in arbitration cases revolves around the question of the burden or proof, Hoh said. The party taking action that challenges the status quo usually has the burden of proving its challenge: the union for the most part in contract interpretation cases, and the employer in discipline cases. The burden can shift during a disciplinary case if the employer offers incriminating testimony about the worker's conduct, which the union then must rebut through cross-examination and testimony. If the union fails to rebut the incriminating evidence, the employer will have satisfied its burden with respect to that testimony.

A related issue is the amount of evidence needed to prove the case, Hoh said. In criminal cases in the public judicial system, the state has the burden of proving its charges beyond a reasonable doubt. But in the criminal system, a defendant can be punished with a prison sentence or even loss of life, he noted. In the employment context, the worst punishment that can be meted out is loss of employment. As a result, most arbitrators use the standard of a "preponderance of the evidence," or of "clear and convincing evidence" where the conduct also may be criminal.

Arbitrators are "frequently troubled" when determining the appropriate burden and in determining whether the burden has been met, he said. "Probably the most crucial aspect of providing due process under the just-cause standard is deciding whether the employer has established sufficient proof for the arbitrator to endorse its action. In razor's edge cases, the burden of proof resolves the case."

Equitable Administration
In addition to these due process concerns, arbitrators are concerned with whether there has been administrative due process in handling the matter, he said. Among elements of administrative due process that arbitrators look for are consistency with prior treatment of like offenses; promptness in the administration of discipline, allowing the worker an opportunity to amend conduct or file a grievance; willingness to allow the union to respond to the charge; and the existence of a nexus between the employee's conduct and his or her job function and performance.

The conference, "Arbitration: The Good, the Bad, & The Ugly," was held May 7 at Southern Illinois University in Edwardsville, Ill. A speaker at another session discussed the growing complexity and costliness of arbitration (13 COBB 66, 5/22/08). [CLEAR source: BNA’s Collective Bargainng Bulletin, (6-5-08) p.72]



Back to link button Home Page