Sign Hawaii Banking Arbitration Agreement Myself

Industry sign banking hawaii arbitration agreement myself

here so good afternoon my name is sharma henry with the university of oregon labor education and research center along with jennifer smith and nikki rudiger this afternoon we're going to have a interesting interactive engagement with barbara diamond uh regarding exploring systemic racism and arbitration and and just note uh the american arbitration association reported about 5738 arbitration cases in 2019. 28 of those cases were discharge cases 20 of those cases were contract interpretations 10 percent of those cases were suspension and about seven percent were disciplined and another three percent were worksite work assignment cases uh the american arbitration association has a panel of about 630 682 arbitrators and 39 percent of those are also members of the national academy of arbitrators so this is a very interesting practice for those who participate in their union in the grievance arbitration process and so barbara diamond is a former practicing labor side attorney for 35 years in portland oregon and is now a mediator and arbitrator with diamond adr and so we're pleased to have her this evening this afternoon to kind of walk us through this process that unions are clearly stakeholders in and as a result of collective bargaining and arbitration language we're we'll have an interesting conversation about things that unions can do first of all i want to thank everyone for coming to this uh conversation today uh i have participated in arbitration as a an advocate for many years and i'm starting my practice as a neutral and i'm very excited about that but as a result i have some information to share about what i've gone through to become an arbitrator and i've explored a little bit about implicit bias in arbitration so i'll be focusing on that and we'll also be having some conversations together so um first of all some it looked like the majority of you had actually not participated in a labor arbitration before but i'm sure most of you know that most labor agreements if there is a conflict about whether a collective bargaining agreement has been violated the preferred way to resolve the conflict flicks in uh under union contracts is to proceed to labor arbitration if the parties are unable to resolve um the dispute themselves so we know that there's a lot of grievance arbitration going on unions pay for and support arbitration very significantly and one of the things that's really interesting when we're talking about bias is that arbitration decisions get enormous deference in our system now even if you have a decision in a court normally you have the ability to file an appeal to a higher court and then sometimes even to an even higher court after that whereas in arbitration we know that arbitration awards are generally final and binding um so that's an important factor that makes arbitration because it isn't reviewed by anyone else um it's kind of there there's not the um ability to ask a third party to review whether the decision is right or wrong judicial review when it does occur is very limited we also know though that in order to become an arbitrator a labor arbitrator if there's a significant process that a person has to go through first of all you have to have quite a bit at least 10 years of experience usually more in the subject matter background either as an advocate for labor as or as an advocate for management you have to supply a large number of references and annoy your friends by asking them to give you references and it's a major process you also have to give up all your work as an advocate uh to become listed on any of the big listing services so again uh no uh you can't keep working as a union lawyer or a management lawyer and that's a big a big ask and that's before you even get a single case and we also know significantly that the parties are selected generally from lists by striking by usually the attorneys or the advocates which is going to become a significant uh matter when we talk about bias one of the really significant things about arbitrators uh is which i've learned now in becoming an arbitrator is the difference one of the most significant differences uh in which your your chair in the room is very significant um advocates are very interested in outcomes you know unions want to win the case because they think an injustice has been done arbitrators are although i'm sure just the word justice passes their lips arbitrators are generally more process-oriented because in a win-lose situation uh half the people are going to think the decision wasn't just so what arbitrators tend to focus on the most is the process has everyone gotten a fair hearing has everyone does everyone feel as though the proceeding has been fair and that's a really important uh focus of arbitrators one of the things that arbitrators are required to commit to as an ethical principle is the notion that you're as willing to rule for the union as you are for management or you're as willing to rule for management as you are for labor you have to be impartial so arbitrators also are subject to a code of ethics uh which very much uh emphasizes the notion of integrity and impartiality but the code hasn't been updated to deal with the issue of discrimination to any large extent you can see i took a little excerpt of part of a portion of the code of ethics it doesn't mention non-discrimination on the basis of sex or race and um perhaps you could argue that it's implied i would argue that certainly um but um really arbitrators are expected the impartiality is the calling card of an arbitrator um and we know that that's a really important factor i wanted to anything in the chat jen right now not yet okay no please feel free and i'm i urge you if you have a question or comment to put it in the chat because we're going to stop periodically so that the chat remarks can be shared because i want this to be collaborative so with the background of who arbitrate who gets to be an arbitrator in the sense of what you have to do to become an arbitrator you can see that right away the fact that you have to give up your work either for labor or management is a situation that is a creates the possibility of bias because who are the people that are better able to support themselves while they go through the laborious process of being chosen from lists it might tend to be that statistically um if we think that women and people of color in general um make less money which you know it's not true of everyone but it may be true statistically that that may very well be a bias factor that we should examine but we also know that when we look at bias um as a as a system of decision making that people may rely on that there are two basic kinds of bias the first kind of bias is explicit bias and that we have no trouble seeing what explicit bias is basically those are the attitudes that we consciously believe in other words and probably uh we would hope that everybody here now in this room in our zoom room uh believe consciously that we that we we don't believe in stereotypes we don't believe in discrimination we believe in treating everyone the same on the other hand we have the concept of implicit bias the idea that bias operates unconsciously and uh and what studies show is that even though we may have explicit egalitarian attitudes sometimes we have implicit bias which impacts the way that we behave and in fact the research tends to show that implicit or unconscious bias is pervasive in in decision making so the question is and some of you may have taken a class on implicit bias we know that there's very significant racial bias against black folks in this country 80 percent on the iit are showing bias against african americans uh we also know that gender bias is very pervasive and if you're interested in learning more about the different tests for implicit bias go out go ahead and google plus harvard project implicit and you'll be able to learn all about what they do but we do know that in our country that in general uh there's pretty significant associations between you know preference for white over black a an unconscious race crime frame that our culture instills in us to associate a particular black men with crimes of associations are playing not in our conscious mind but with what i call the unconscious bias screensaver that goes on in the back of our minds and it and it impacts behavior um so let me talk a little bit about how uh implicit bias uh with implicit racial and gender bias can work together uh in arbitration cases and this would be a question that i would have is um imagine that you've got a case um that and i've had these cases that you have a case of a black grievant who is fired for theft and then denies that they engaged in the theft in that situation there there is a fairly pervasive uh bias unconscious bias that associates uh black people with crime uh with crime and violence so again if unconscious bias is going to tip the scale it's going to be associating this grievance with uh with with crime and therefore be more likely to have someone decide without realizing it with the impact of implicit bias that the person is guilty on the other hand in my second scenario if you have a black female accused of insubordination by a white supervisor and she denies it we have the combination of both um anti-black bias and particular bias intersectional bias against black women uh you know that they're associated with with um with anger or emotion inappropriate emotions so there may be those implicit biased stereotypes may very well be in the back of someone's mind how do you think uh implicit bias or bias could impact uh the decision the decision of an arbitrator in in any individual case what i'm going to do is have you be put in breakout rooms and have you discuss those scenarios you'll be put in a breakout room for about uh 10 minutes after you do that we're going to come back and discuss what you think about those scenarios whether you agree with me or have other ways of thinking about it and those of you who've been in arbitration feel free to share your experiences as well please make sure that you introduce yourself to your people in your breakout groups please share your pronouns mine or she and they and make sure that you give everyone an opportunity to speak if for any reason there's an issue in your breakout room please feel free to come out of the breakout rooms and let one of us or one of the lurk staff know okay okay i'm gonna put you in breakout rooms and we'll have about 10 minutes uh and hopefully you'll have someone who will be able to report back um if asked about what happened in your room here you go okay um let me ask is there do i have any volunteers um anyone uh about how your group whether your group came out with any kind of conclusion or uh razor go ahead and uh under the participant button if you click on that you should have a way to um to share your uh just to raise your hand so can i i'm looking to see if anyone will raise their hand to share out what your group talked about i'm ready to go dave technology here so i'm alexander not doing it right now go ahead david i was in a group with um barbara and marissa and one of the gentlemen who stuck in is sort of snuck back out again too um barbara was the only member of the group who had actually done the implicit bias of the study that barbara talked about which was kind of interesting uh interesting that for some of us others who haven't done that donna's experiences were kind of interesting maybe she can speak to those uh she's the one to sort of take the imprisonment bias that we we uh did a little bit and i because i hadn't seen donna hammond in a while i we sort of got off to off the topic and that was really my fault to discuss some other things since we haven't seen each other in a while uh but yeah we sort of looked at how implicit bias plays a role particularly with the first example of the black who's accused of theft and i pointed out again part of this goes to my experience in the arbitration process that the sense again sort of on the street although we can argue that as you're innocent until you prove yourself guilty but in reality in the workplace it's the opposite of that you're guilty until you prove yourself innocent so there's a sort of an added burden that a black grievant might face in a case like this uh first of all like he or she is accused highly persistent and then add the fact that they're black and how that might bias um how the process goes as well that's about as far as we got in conversation if i miss anything larissa or donna please jump in i think i covered it because we moved along pretty quickly okay i see you have your hand up so uh we had a good conversation in our breakout group um two out of six of us had participated in arbitration in in the past and one of those shared our experience about presenting two arbitrations with union staff in the last year and one of those um she was a witness in it and that really opened her eyes to the uh how scary it can be to be a witness in an arbitration and we didn't get to talk about that much more unfortunately but it seems like a good place to make connections to tobias and to differential experiences across race and other intersectional lines of um we also one of us mentioned that um they've seen cases in which people were union members were disciplined and didn't want to go to arbitration because they didn't want to be seen as angry in their work life in the future and maybe they weren't afraid of formal formal retaliation but more of that sort of informal treatment from from from management and then we heard that the arbitration panel of the aaa has been called out of not being very diverse and and this body of research on implicit bias really shows why arbitrators need to be more diverse and arbitrators we heard are often from law firms and industries that don't necessarily give you you know confidence in their impartiality and then finally well we had a practicing arbitrator in our group um who gave us a little bit of the history of of how arbitration is has changed from uh union and management representatives sort of as advocates to lawyering up um and having lawyers involved instead and we didn't get to get very far in that conversation either okay um what about i see elliott has a handout um yeah so uh just really quickly uh we also have an arbitrator in our group um and that person mentioned that uh you know they're seeing more and more uh situations where advocates just specifically union advocates are bringing up implicit bias um in cases um and making those sort of arguments um you know and something that we talked about just really quickly is you know that you know the concept of implicit bias you know as specifically amongst white folks has been you know something that um you know people of color have known about and lived with their entire lives right and now as we're getting to this point where we can actually name it and make that advocacy point um you know and at least have some concept um that other folks you know thinks the trainings like this will understand um you know and start to explore the concept of explicit implicit uh implicit bias um that that seems like a helpful step forward okay any any other anybody else want to report out from your groups on the on the it sounds like we were doing a lot of good discussion but maybe not so much discussing the hypotheticals so let me go back a little bit to to those hypotheticals and and give some ideas about them um one notion that um i think is significant is that in these cases that i set out for you you know the first one we have a black a blacker event fired for theft that may uh trigger uh unconscious bias in which blacks are associated with crime and therefore unconsciously prime um a decision maker to think that the person is guilty especially if the evidence is very close um and then the second case i was trying to give a scenario in which the stereotype of angry you know the angry black woman stereotype um uh is is primed it's triggered uh and which could mean that an arbitrator would be more likely to find that a black woman accused of insubordination of you know of being too mouthy if you have it uh is guilty so in other words in the in what o e of the ways that implicit bias works is that we talk about stereotype consistent behavior and stereotype inconsistent behavior and how those two frameworks impact people and in this case we have two examples of what would be stereotype consistent behavior not behavior which we explicitly believe that black people are engaged in more theft or more insubordination than white people but the subconscious stereotype associating this character these characteristics or behaviors with people of a particular race so that's a particular concern that it is possible that decision makers of all kinds could in a very close case in weighing evidence be influenced by implicit stereotypes okay um i did check the chat i wanted to talk a little bit about decisions that have been some studies um that have been made of judges because arbitrators are kind of like judges kind of like rented rented judges uh you know you pick them from a list um and they're paid to resolve your dispute but there's been not as much research of arbitrators as there have been of judges and one of my favorite studies was by a guy named justin levinson who's a professor at the university of hawaii and if you want any of these studies by the way i've got them on pdfs and just email me and i will uh i can send them to you what justin levenson wanted to research was whether in fact what i don't like this term i'm using any quotes model minorities were subject to discrimination you know even though they're supposedly minorities who have achieved parity in the world which is asians and jews and in this study what he did was he gave the same set of facts to judges actual judges but changed the identities of the players so in other words uh where cohen may have been the plaintiff and smith the defendant uh smith then gets changed in other words this is a the name is associated it's supposed to be associated with jewish folks and then smith non-jewish folks and on the same frame chin associated with you know chinese name uh changing the identities keeping the facts the same but just changing the names and what they found was that um there was significant implicit bias there were more uh the white uh the the white uh folks did better off uh in all of these uh cases other than if the arbitrator was asian or jewish in which case there was no implicit bias so the question really becomes you know does this research on judges apply to arbitrators we know that in terms of racial bias in the judicial system that it is uh significant here in oregon uh we there was a recent study a few years ago uh that of the multnomah county uh the outcomes in multnomah county circuit court here in portland where there was very clear evidence of disproportionate outcomes based on race and uh particularly black and brown folks doing when compared with their white comparators very clear evidence of race discrimination and when the court uh had to deal with that they went through a very intensive educational process of these judges uh and implicit bias and i was part of that but it it it really was you know a kind of thing where uh judges in uh criminal cases have to act very quickly and uh which gives time for bias to enter into an equation we also know that uh here in oregon their belief in implicit bias in the in the civil system as well as i'm sorry in the criminal system is not limited to judges but also extends to juries and i put the uh if you want to screen capture it i put the um i put the site in here where you can actually watch there's been a new video that has been produced by the oregon judicial system it's a new video that talks about implicit bias implicit racial bias which is now going to be shown to jurors before they engage in criminal decisions to remind them uh to be accounted to to uh to make their decisions more slowly to be able to articulate a basis for their decision and other mechanisms to keep implicit bias in check so we know that here in oregon we the the consent there's a pretty strong consensus that in these decision-making processes for judges and juries that implicit bias needs to be counter but what about an arbitration i'm very interested i wanted to have people talk about whether you have experienced race or gender discrimination in arbitration so i'm going to send you back into your breakout groups this time i would very much appreciate it uh so that we can have the discussion it would be actually stay on topic uh have you ever experienced race or gender discrimination in arbitration it's already been brought out that there are certain people who don't want to engage in the arbitration process due to concerns of how this how this may make them appear to be how might that concern be stronger for people of color uh please share your experiences if you feel comfortable otherwise listen and we'll come back in about 10 minutes i'm i'm going to be looking in the chat raise your hand um who who would like anyone like to share go again i'm doing that right or not are you sharing david you're on do you like yeah i'm uh learning the technology i see my little ham pop up there so in our group again we uh we we stayed on task barbara you'll be glad to know we stayed on task this time and uh talk about that and again for the we have four people in our group and the two of us with any experience in the process talked about um have we witnessed uh these sort of bias issues and arbitration and either donna who represents public sector folks and has been in cases both as sort of a advocate and also a witness and myself in in both real and imagine arbitration um hadn't seen examples of that at least in all the years i probably saw one example as an arbitrator who was showing what i would consider biased against a female agreement in the case um that's a story for another time um but outside of that that's probably the one instance i saw and donna said in her experiences she had really experienced those issues of sort of bias there too interesting anyone else from any of the other groups can somebody report back not at this time not seeing any hands am i missing anyone well yeah and sure sure and in a case that i represented years ago when i was the union president we've we experienced the case where i felt the arbitrator was biased it was a racial and gender bias because he did not believe the witness and he allowed opposing counsel to treat witnesses as hostile witnesses and it was a case that in spite of it being final and binding because we felt we had enough evidence that we didn't get a fair rule in the district courts of appeal originally uh set aside that arbitrator's ruling um because of what we felt was the bias and the treatment of our members who he felt were not credible and it was eight million dollar uh case and so he believed management did not mean to give folks an additional eight million dollar uh wage settlement and that the folks who participate in the process will not necessarily been truthful and so uh that was one in which uh we we felt the opportunity was definitely biased for a couple of reasons and our lawyer later shared with us that oftentimes arbitrator special in the public sector sometimes act as custodians of the public's uh bank account all right thanks sherman let me share um let me move on a little bit our own experience the um there's not been a lot of research about implicit bias in arbitration i really could only find two sets of studies both of which focused on gender um and there was a remarkably little gender bias found in these arbitration studies one was the 2006 set of studies of academy arbitrators and the other one was a 2015 study of arbitrators so although there was an implicit bias found against unmarried mothers uh and there were some other uh correlations that were found actually the evidence would tend to support the idea that arbitrators are far less biased than either judges or juries and i think i have some reason why why i say that one of which is that arbitrators are selected by the parties um so if an arbitrator were commonly uh issuing biased decisions we we assume that the uh process might uh might have an effect on that arbitrators being chosen so i think that one of the things that's really uh and that we we can't say that necessarily about our judges or our juries we don't really select them so one of the really positive uh elements that and unions do a lot of sharing and i'm sure management also with each other one of the things that i noticed toward the end of my practice was that i actually had um that when i was striking arbitrators from a list that i almost always got my first or second choice and that was because i realized that both management and labor we agreed on who the fairest uh who was the fairest of them all from any particular list but um arbitrators uh there are vulnerable decision points that implicit bias theory points out certainly credibility determination since uh uh obviously we know that white men are assumed to be more competent in implicit bias manner and subconsciously have an assumption of credibility and of confidence that women people of color have to earn um so i mean these are potential uh you know in other words and also when our arbitrators are striking out in new areas where they may not be handling a situation that they've done before so they have no guidance from any from anything these would be the types of vulnerable situations where implicit bias can put the thumb on the scale for anyone including arbitrators because uh we are human um so in what communities do about you know bias in the arbitration process i think is to be very aware of the notion of stereotype consistent behavior and stereotype inconsistent behavior so for example when i was litigating a case as an advocate for a union where i had a um i had a person of color accused of theft who was a cafeteria worker he was accused of stealing food and he had also done jail time for uh he had a criminal record and what i did was i when i was litigating it is i took the issue right on when i was when i was cross-examining the decider the decision maker for management i said uh are you aware of the fact that someone so has a criminal record yes i am um did you take that factor into account in any manner in your decision and what happened was that it got neutralized because the person said oh no you know and then i also countered the i actually used uh in my mind i automatically used the concept of stereotypes this person happened to be asian an incredibly hard worker um and i had him go through he had memorized his routine of how he cleaned that cafeteria and he was able to recite a list so i actually used the stereotype of asians being hard workers i mean i didn't do this consciously i just realized looking back i counter the stereotype that this person might be a dishonest criminal with the notion uh that he was conforming to a heart a hard work ethic that is often attributed to asians um and uh thinking about it now i'm not so sure uh how i feel about it but i know that i was aware of the stereotype and aware that i had to do something to counter the the depiction so that uh so that that would work um want to talk a little bit about implicit bias and in the arbitration selection process some of you may know the story of jay-z when he was sued uh over a copyright issue uh he had to go to mandatory arbitration but when they got a list of arbitrators of the 12 arbitrators he got none of them were black men and it turned out that out of the list that that they were doing arbitration from only two of the 200 arbitrators you do the math were black men and so jay-z went to court to get an injunction to try to get out of mandatory arbitration saying that um he could get a fair hearing because of unconscious bias and i don't actually know how that case worked out but i do know that it's a very uh famous case and then it's a very interesting case because it raises the question about representation and arbitration we know that the arbitral pool is um skewed toward white men and as a matter of fact this is a quote from a letter from the president of the national academy of arbitrators which is a very select group of our most prestigious arbitrators in uh in the country who basically say that the vast majority of our membership is male and white so 90 of academy members the most prestigious members of the academy are white and the majority white men and that even though they've tried mentorship programs and other membership standards these initiatives have essentially uh admittedly not succeeded so what about the idea of uh racial uh representation uh of uh of grievance in the arbitration system does a grievant get a shot at getting an arbitrator that looks like them i i just went this is by the way unscientific uh review but i i had a little bit of time and i went through the first 25 names you'll notice these are alphabetical from the herb list from people that i knew i felt that i could make a pretty good guess about their race and gender but obviously i didn't ask them so this may not be completely accurate but i did i do know that richard humphries is the only black person on the entire herb list so that would certainly tell me that if i were an african-american grievant that i would have virtually no hope of getting somebody that looked like me as my arbitrator and i would view this as a situation of what we might call structural racism it isn't that is not to say that the individuals on this list are racists per se i actually have used many of these arbitrators they're they're terrific arbitrators and i have felt that they were very fair in their decisions so but i do think that when you look at this list you might think hey uh as most affirmative as most people who look at affirmative action know or at the diversity efforts know that the biggest uh beneficiaries of affirmative action or diversity efforts tend to be white women and that would be uh that the data here would certainly show that to be true so i happened to i wanted to bring forward to you to consider uh this uh this ray corollary initiative that's being started by homer leroux uh who is a professor at howard a la university law school the the notion being uh that um advocates tend to choose people that they know um and people like themselves um and when people conduct the striking process you know you get a list of arbitrators and you strike them there's no accountability for who is for when you strike somebody from the list that's a process that's more or less a black box and we know that appointing uh agencies in general i think there may be some difference with triple a but i know that they don't generally maintain demographic statistics so because we're using uh you know we're using a situation where this the membership of the arbitral profession is so dominated by white men and usually older white men um that it that people three bands cannot expect to uh to have an arbitrator that looks like them and um one of the things that's particularly pernicious is we have this concept called the status quo effect which is that people tend to not want to take chances in arbitration and certainly i didn't as an arbitrator i tended generally to pick people i knew that process of wanting to pick people you know maintains the status quo it makes it less likely that someone will eventually um that someone will take a chance on an arbitrator that doesn't look like them so again what the studies do show though is that the more people we have from a diverse group in a pool of selection the more likely it is that a person from a diverse background will be selected so if you have two black candidates and one black and one white candidate on a list you really increase the the uh the probability that a black candidate will be selected whereas if you only have one on your list it's much less likely that people will select that person so again having more diverse people in the pool is likely to result in having more diverse folks selected so um what um what professor larue suggests and i believe alan simmonette who's his co-conspirator in this process um and it's those wonderful work that they're doing uh the idea is to uh expand the mansfield rule which is from um big law a concept of hiring lawyers in big law to he selection of adr neutrals to help overcome implicit biases against diverse neutrals so with the idea being that if you have at least two diverse neutrals on your list it's much more likely that you will be selecting that person if there's only one diverse candidate on the list it's very unlikely that they will be selected so um in any event this is an idea that uh this uh expansion of the of the mansfield rule to this rey corollary is an initiative that calls for collaboration with lawyers uh so that when lawyers select arbitrators and that's primarily who does it now is that we will have more uh more of a field so that we uh so that we will have more diversity uh to try to overcome the problem of lack of diversity and systemic racism in the arbitration process um anyway that is um that's something for unions to think about because unions uh do negotiate collective bargaining agreements and typically part of what's specified in a collective bargaining agreement is how an arbitrator is selected sometimes arbitrators are selected from panels in which case the union has the opportunity to look at your panel you know be mindful of whether there is diversity on your panel if you have a panel of all white people um frankly with you know if you're selecting them from a lot of the lists that wouldn't be unusual statistically but perhaps consider whether or not your panel reflects the diversity of the membership and the second thing might be to consider when you're working with an agency if it's possible to select a list and i know aaa can do this i don't know about the others but you know do something where you're mindful about these choices so that we can give um folks of color more of an entree and give our members give members um a higher chance of of going to arbitration and not being as afraid that they might not be believed or valued um in in the way that their peers are so um now i'm gonna sit now is the time for our for our uh discussion uh we have wonderful arbitrators in our group they may wish to share or others or people uh what do you think of this idea of a of getting at least two diverse arbitrators on the list what do folks think about that and please raise your hand in the chat and uh we can call on you because we have about another another couple of minutes so i'd be very interested in your thoughts yvonne i see your hand ivan thank you yes i'm here i'm here and uh you mentioned in the introductory part uh that in order to be an arbitrator you must leave your career you know in your you know basically close all of your your commercial you know or work relationships to be able to act as an arbiter or arbitrator and so i think that perhaps you know for people uh attorneys you know uh it may be difficult to navigate you know if you don't have already a capital to be able to navigate you know the probably the year two three that it may take you to become an arbitrator so so how could you you know and i see this in a lot of work you know like there's a lot of that is achieved through volunteering but not everybody has the the capacity for really you know leaving behind you know um earning your living to be able to do the work that needs to be done and so how would you know if that is an economic perspective how could that work you know how could it how could it be that in oregon there's only one african-american or or clearly stated african-american arabic arbitrator and apparently there's no there's no women no african-american women who are arbitrators in 2021. yeah it's true on there there are none on the herb list that i know of um of course you know i haven't asked every arbitrator how they identify racially but that is my understanding we have very few arbitrators of color um on our panels and and i think one of the things that um that advocates can do is to try to make an effort you know to to get beyond the status quo effect and to choose art of color if you have the opportunity uh to to give those uh to give those folks work um you don't have to when you to be an arbitrator you just have to give up what you're doing as a labor person or as a management person you can continue to work if you're for example an attorney could continue to do slip and fall cases or other types of litigation and i think it's a reason one of the things that was said to me in becoming an arbitrator was it's going to take you five years to be able to survive on your income as an arbitrator so i waited until i was old enough that i had retirement savings and i also do um i also do other things you know i'm a professional diversity trainer and i do that quite a bit so i have some other income but i also realized i might be eating a lot of ramen so this is a structural problem that arbitrators who are very thoughtful people in general in my experience i've thought about quite a bit you know one of the things one of the questions that arbitrators have asked themselves in the profession and i'm happy for other for the arbitrators here to share that information is you know should they remove the requirement that uh arbitrators give up their practices as advocates and you know that's something that would be very difficult for me as someone uh someone being a labor advocate in the past i really wouldn't want to pick an arbitrator who was working as a management lawyer i wouldn't you know in other words and i imagine many management lawyers would not want to pick someone who's working as a union lawyer so you know that that that's a it's a real quandary i think one of the the um the various groups have mentoring processes and i know that there are you know many uh arbitrators i know have been very helpful to me personally very supportive there was a lot of mentorship going on but again these individual efforts can't overcome these systemic barriers uh that are so problematic but i but i think that zoom gives us a really amazing opportunity so long as we have we're forced to do arbitrations over zoom there are more diverse arbitrators um in other parts of the country um and we do have some diverse arbitrators on the list so um you know we do have some capacity to reach out i think if people knew that they would be selected um and um again this idea of being able to get more people on the list so that more uh advocates can be selected i think it would be creative it's pretty hard i mean if you're sitting in a chair as a person of color and you don't see any arbitrators who are people of color it's a kind of an environmental uh message to you that it's not your role um which is a very unconscious psychological message so we i don't i don't know i think that perhaps uh it's something that the arbitration profession will continue to work on but i think that it's a matter of also of demand i think and i think the union movement is very much in charge of the demand you know you negotiate what goes into the contracts in terms of how you select arbitrators so i think that because um you know that this idea of the ray corollary is coming out from professor leroux who's a member of the national academy of arbitrators and alan simmonette these are very well respected black arbitrators um in other parts of the country and it could be that people you know do some research and you know when you create a panel you know maybe there's a way to think about including more diverse people on panels it tends to be lower paying work than other work but it's a really good place to think about you know giving folks a try and and i think that there's just i know that for myself i had a pretty significant lack of awareness of this you know as a white person you know walking through the world i wasn't as noticing it as much but i really feel as though for clients for as as the union movement includes a larger and larger percentage of people of color we need to be thinking not necessarily of this generation of arbitrators but the next generation and the next generation because we have a ton of really qualified and awesome uh advocates you know of color uh in the union movement nationally and i think it's a question of getting people to be willing to to serve as arbitrators and figuring out how can we do it should there be grants available should there be other mechanisms available these are all things that we need to think about what's most important to me is that we understand that you know it to the extent that this is a market-driven system uh unions are very involved in that market and need to think about what they are going to do as the people who use arbitration services and by the way i do want to say that i think that arbitrators have less bias in their decisions than judges because they have more time to reflect they are directly accountable in that they may not be selected if they show a great deal of bias and there's a culture of even-handedness um and of self-reflection that is really remarkable in the trade so i am here to say that i i actually think that the reason why there have been very few studies on arbitrators and the uh uh and the uh i would like to see a study of of race uh race discrimination and race i'd like to see that not just gender but i i will guess that it will not that there will be less bias in decisions from arbitrators due to their accountability due to the fact that they have so much not so much time to consider the decision they have to write the decision down and explain their reasons and that kind of accountability and transparency me it makes them makes implicit bias um uh less less prevalent in the decision-making process would be my hypothesis but we do need to think about the systemic race and in the racism in the pool um and i think it's something that you know i hope that you go look up uh the rey corollary and look up what these uh esteemed black arbitrators are doing nationally see what you can do to support that those processes because you know labor the labor movement is very attuned to issues of racism at this time so i would encourage you to do that and use your market power to make change so that we support arbitrators of color um and other arbitrators from diverse backgrounds um as much as we do our wonderful cadre of arbitrators that we that we have on our oregon list one final question i know we're wrapping up and this is it but how would someone find a bilingual arbitrator is that something that they would advertise about themselves um on a list well it's interesting i i think that there are a lot of arbitrators in spanish that do have a working knowledge of spanish um because so many of the cases involve spanish-speaking workers i've noticed that from the cases i've looked at i think that it would be great if there were you know one of the things that we could think about advocating for that you could think about is you know asking the listing organizations if they would include on the bios like for example recently we know that bios have been uh altered to include the factor of whether an arbitrator is willing to do a zoom arbitration you know you could say i you know would be really if it would be helpful to your union we would like an arbitrator who is bilingual i'm assuming spanish but it could be sign language it could be you know as the fourth biggest language spoken you know it would would be great if we had that opportunity to um really let people feel heard in their own language uh if that would be or at least uh you know you still have some other process but it would be uh information that seems uh that it could be fair to share well thank you so much questions please give me uh uh give me a reaction in your little square i'm gonna give you one thank you for listening and for participating i hope you had a chance to think and learn about a new topic um and i love lurk and i appreciate everybody for coming today i'm going to hang out a little bit afterwards and i'm willing to say hi to anybody that wants to hang out and say hi but otherwise thank you for coming