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It is with a heavy heart that we share news of the passing of our most recent Regional Chair, Fred Dichter. We will miss his gentle humor and his dedication to the field of labor arbitration. The Southeast Region has made a donation in his memory to the NAA Research and Education Fund, and we encourage like-minded individuals to do the same: https://naarb.org/make-a-donation/.

Below, we post a notice from his family (leaving out the specifics of the services and the like, out of respect for the family):

In Loving Memory
Fredric Ross Dichter
1946 – 2023

It is with a heavy heart that we announce the death of Fredric Ross Dichter. Fred was born on April 2, 1946 and was the cherished husband of Barbara Dichter and beloved father of Erica Vogel of Sussex, WI along with her husband Chuck Vogel and daughter Jennifer Beiro; and Ron Dichter of Vero Beach, FL along with his wife Diana Dichter and two children Stiles Dichter and Emmy Dichter. Fred died peacefully at home on January 31, 2023, at the age of 76 with his wife Barbara by his side.

Fred had been diagnosed with Glioblastoma (Brain Cancer) on November 4, 2022. The doctors gave Fred less than 30 days to live, but in typical “Fred” fashion he showed them and lived 3 times longer than the doctors said he would.

In lieu of flowers, please send donations to:
Congregation Emanu-El
2020 West Brown Deer Road
Milwaukee, WI 53217

May Fred’s memory be for a blessing.

In an opinion last summer, Southwest Airlines Co. v. Saxon (Case No. 21–309, June 2022), the United States Supreme Court ruled that an employee in a Fair Labor Standards Act case against the employee’s airline employer may not be compelled to arbitrate such claims. The Federal Arbitration Act (“FAA”) will generally require parties to arbitrate their disputes when they have signed an otherwise enforceable agreement to arbitrate, but FAA excludes contracts to arbitrate involving employees who are engaged in interstate commerce. The Court held here that, even though the ramp agent herself did not cross state lines in the performance of her duties (she performed all her duties on the ground), she was nonetheless engaged in interstate commerce, and thus not subject to FAA arbitration: “…airline employees who physically load and unload cargo on and off planes traveling in interstate commerce are, as a practical matter, part of the interstate transportation of goods.”

While this case has broader implications outside the labor milieu, which has other labor laws regarding arbitration of grievances (e.g., the Railway Labor Act, the Labor Management Relations Act, to name two), it still may figure into some labor actions and is, in any event, of some interest to the arbitration community. For a great discussion of the decision, see https://law.missouri.edu/arbitrationinfo/2023/01/03/2022-in-review-thoughts-on-southwest-v-saxon-142-s-ct-1783/.

Most people know that arbitration is similar to, but not the same as, civil litigation. One way in which arbitration differs from litigation is the ability of parties to obtain documents and testimony from nonparties by subpoena.

As of Fall 2019 (yes, I know that’s not new but, judging by some recent conversations with counsel, arbitration advocates, and even some arbitrators, it may be news to them), the United States Court of Appeals for the Eleventh Circuit (the appellate court whose geography encompasses Florida, Georgia, and Alabama) has held, in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019) (“Managed Care“), that arbitrators do not have the ability under the Federal Arbitration Act, 9 U.S.C. §§ 1 – 16 (“FAA”) to issue certain types of subpoenae.

First off, the Managed Care court stated that FAA does not authorize arbitrators to issue third-party subpoenae for discovery purposes. While this is frequently not as much of an issue in labor arbitration, where prehearing discovery from nonparties is historically rare, it can be disadvantageous to parties where records from nonparties can be important (as in, for example, when cell phone or medical records are relevant).

Second, of special significance to all kinds of arbitration in this post-COVID, Zoom hearings era, Managed Care held that arbitrators may not issue enforceable subpoenae requiring nonparty attendance at hearing by ZOOM or other electronic means. While arbitrators may still issue enforceable subpoenae requiring the attendance at hearing, the court stated that arbitrators may only summon persons to appear physically, i.e., in person, before them. (Admittedly, this decision came out before the COVID pandemic, but a recent Westlaw review found the case is still good law.)

Of course, Managed Care only applies to arbitrations subject to FAA.

So, if a state arbitration law applies (by way of nonexclusive example, most arbitrations between state or local government employers and unions representing their employees), Managed Care‘s restrictions will not limit arbitral subpoenae. Likewise, Managed Care is only binding precedent within the Eleventh Circuit, so other jurisdictions within the NAA Southeast Region that are outside the Eleventh Circuit’s geographical boundaries, i.e., Tennessee (Sixth Circuit), the Carolinas (Fourth Circuit), and Puerto Rico (First Circuit), are not subject thereto.

Moreover, the Sixth Circuit has expressly held labor arbitrators (i.e., arbitrations convened under the Labor Management Relations Act (LMRA) may issue prehearing discovery subpoenae to nonparties: “[U]nder § 301, a labor arbitrator is authorized to issue a subpoena duces tecum to compel a third party to produce records he [or she] deems material to the case either before or at an arbitration hearing.” American Federation of Television & Radio Artists (AFTRA) v. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir. 1999). However, the Eleventh Circuit did not have a labor arbitration before it in Managed Care, and the court expressly distinguished the AFTRA case, so we do not know whether prehearing discovery subpoenae are enforceable in the Eleventh Circuit in labor arbitrations subject to LMRA.

For more discussion of Managed Care, and what to do if you’re in a state that falls within the Eleventh Circuit, see a relatively recent article in the Florida Bar’s Labor and Employment Section publication, The Checkoff.

Welcome to our new NAA-SE Region Blog.

Here, we will post about topics of interest to the labor & employment arbitration community. Today, we’re excited to let you know we’ve begun a list of the NAA SE Region member arbitrators who have committed to give of their time and expertise in training new labor arbitrators. The list, which is expanding, may be found here.