Award-winning labor attorney moves into arbitration work



by Cynthia Price
Legal News

Tom Barnes is starting out on what is basically a new career after 39 years of practicing law.

But although he is legally leaving his law firm, Varnum, he is not physically leaving.

Barnes must discontinue having a relationship with any advocacy firm so that he can become a labor arbitrator, which is his intention.

However, he will be renting space from Varnum and paying for the time of his very knowledgeable assistant Joan Lexson, who has been with him for 20 years — both of which should make the transition easier.

It is clear that, regardless of the degree of difficulty, Barnes would still choose to be a labor arbitrator because he is passionate about it.

He is completely serious about being neutral. Legally separating himself from Varnum is one step toward that, and full disclosure about his previous client relationships is another.

And Barnes has had 39 years of notably successful client relationships. In fact, the Labor and Employment Law Section of the State Bar of Michigan gave Barnes its 2011 Distinguished Service Award in January.

The more-than-2600 members of that section chose Barnes because they feel he “exemplifies outstanding service and professionalism,” has made major contributions to labor and employment law practice, reflects high ethical principles, and has won the respect of those in the labor and employment community.

 “That’s a very great honor. I don’t know whether I deserve it, but I got it and I’m not giving it back,” Barnes jokes.

Barnes is a past chair of the state section as well as  of the Grand Rapids Bar Association Labor and Employment Law Section.

At Varnum, nearly all of Barnes’s work was on behalf of management clients, but he points out that he started out, during after receiving his J.D. from Wayne Law School, as a labor relations consultant to unions.

Specifically, he advised on the organizing efforts of Registered and Licensed Practical Nurses. This took place in the late 1960s to early 1970s when nurses were brought under Federal law allowing them to form labor unions.

Since this was — as is the rule in labor organizing — a facility by facility endeavor, there was a lot to do for the consulting firm which employed Barnes.

He says this early experience  combined with his decades of law practice gives him a balanced perspective, but all in all he feels that it is not an arbitrator’s background that matters, but that he or she is dedicated to being fair. “I think I’ve got a pretty good understanding of how both sides think and how people resolve problems responsibly,” Barnes says.

He is proud of the quote about him that appeared in Chambers U.S.A. which said that he takes “a reasonable and constructive approach to employment law disputes as opposed to a scorched earth policy.” The publication also referred to him as “definitely the guy you’d call for help on a complex problem.”

Barnes says that in the arbitrations he has done over the last 16 years as an arbitrator for the Michigan Employment Relations Commission (MERC), he has a high opinion of the overall level of professionalism exhibited by both sides. “If you do [arbitration] right even the losing side will respect you, if they understand why they lost, why I decided this case this way.” He thinks fairness is something any professional can sense and will respect.

Most of his 50 or so MERC cases have been in police or firefighter contract disputes with municipalities. These fall under Act 312, which calls for arbitration in the case of an impasse, since these public safety employees cannot go out on strike. (See related article below.)

The decisions coming out of arbitration are binding, so in a way Barnes acts in the role of judge. Though that makes for a great distinction between arbitration and mediation, Barnes says he occasionally steps into the mediator role in trying to get a negotiated resolution for cases.

“Near the end of the hearing, I might say, well, what are you going to do about this... maybe you guys need to talk some more.” Sometimes a negotiated settlement may take place on only some of the disputed issues, but Barnes says of his Act 312 cases, perhaps as high as half have been settled before he gets to the point of issuing an opinion.

In some cases he may call in a mediator from the Federal Mediation and Conciliation Service (FMCS). Both Kalamazoo and Grand Rapids have at least one FMCS mediator. Barnes feels that the time to involve a federal mediator is before the parties reach impasse, because the mediator will have more useful information in the case that the problem cannot be resolved without his or her help.

On occasion, Barnes says, the parties stipulate that they do not want any mediation to take place, which he of course respects.

Barnes wrote one of the first innovative alternative dispute resolution procedures for an employer regarding the company’s non-union employees.

A labor arbitrator receives the majority of his or her cases as a result of being included on rosters which agencies submit  to parties for their choice. Barnes is currently on the FMCS and MERC rosters as well as the AAA National Roster of Arbitrators and Mediators and the AAA Labor Panel.

Lynn Morrison is Staff Attorney at the Bureau of Employment Relations, which supports MERC. She says that when a request for arbitration comes in to the commission, the commission gives the parties a list of five arbitrators. Each side is asked to strike two of the arbitrators, and then a MERC staffer informs the one left standing that he or she has been chosen. Morrison says that on occasion the parties ask MERC to choose because they are not familiar.

The arbitrators are not listed geographically, though that may play a part in which the parties choose.

Barnes is familiar with a few others who do labor arbitration in West Michigan, but says that due to various circumstances they do not take a lot of cases. He also believe he is the only attorney-trained arbitrator in the area.

Act 312 sets criteria for the factors arbitrators may weigh in decision-making. These include, on any disputed issue such as hourly wages, benefits or time-off provisions, looking at comparable employees in the same unit of government; what is happening at comparable counties or cities; and at private industry practices; or at the cost of living. There is a final catch-all criterion which expands investigation to any other factor which might bear on the issue, and in this Barnes includes such examples as the governmental unit’s ability to pay,  or the general unemployment rate.
For public employees other than those in the police and fire departments, the law allows for what is called a Fact Finder, a position Barnes also includes in his resume.

Though he explains that the report of a Fact Finder is not binding, in most instances it leverages an agreement.

Regarding disputes between for-profit companies and their employees — often narrower cases concerning, for example, the dismissal of just one individual — Barnes says that arbitration generally costs the parties far less than going to court, and decisions can be reached much more quickly.

He continues, “In Michigan, arbitration has been very successful. It works.”