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fl9’4r ‘10 PR! PARE ANI) PRESENT A LADOR ARDITRATION CASE to Prepare and Present Labor Arbitration Case
Strategy and Tactics for Advocates
aries S. Loughran
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The Bureau of National Affairs, Inc., Washington, D.C. 18 How to Prepare and Present a Labor Arbitration Case employer violated the labor contract by assigning certain work to a job classification that is not the normal job classification that performs such work and the evidence presented by both sides is evenly balanced to prove and disprove, respectively, that contention, the arbitrator should rule for the employer. In this situation the union had the burden of persuasion and failed to meet or carry its burden. Fortunately, the rule on burden of persuasion in labor arbitration cases is generally the same as the rule for the burden of production. In contract interpretation cases the union has the burden of proving that a contract violation occurred. In discipline and discharge cases the em- ployer hasthe burden ofproving to thearbitratorthatthe action taken was proper (or, in the terminology of most labor agreements, there was “just cause” for the disciplinary action or discharge).2
Quantum of Proof
Aside from the obligation of presenting one side’s evidence first (the burden ofgoing forward) and aside from proving one party’s side of the case (the burden of persuasion), there is a third aspect of burden of proof usually referred to as ‘~quantum of proof,” which is simply the weightofthe evidence. This concept addresses thequestion ofhow much evidence has to be shown to cause the arbitrator to rule for one side or the other. For example, is there enough evidence to prove that the contract was violated or that the grievant was discharged forjust cause? There are different standards ofproof for different kinds of cases, although differ- ences in standards are generally significant only with respect to discharge cases. The most common standards of quantum of proof applied in labor arbitration are as follows. Preponderance ofthe Evidence. Which side has presented themost evidence to support its position? C/earand Convincing. Has the side with the burden ofproof shown by rather clear and persuasive evidence that its position should be upheld?
2Willamette Indus., 85-2 ARB ¶ 8396 (Fox, 1985); Southern Ohio Coal Co., 83 LA 523 (Feldman, 1984); Iowa-Illinois Gas & Elec., 86 LA 273 (Berger, 1986). An exception in contract interpretation cases is made by some arbitrators in a particular type of contract interpretation caseby requiring the employer to assume the burden of proof in selecting a junior employee rather than a senior employee for promotion. Union Carbide Corp., 97 LA 771, 773 (Helburn, 1991). Overview of the Labor Arbitration Process 19
P roofbeyond a Reasonable Doubt. Is the evidence so strong that it cannot be reasonably concluded beyond a moral certainty that the evidence supports the position taken by the side that carries the burden of proof. There is no clear consensus among arbitrators about which standard of proof relating to the weight of evidence applies in which types of cases. As a very broad generalization, preponderance of the evidence is usually applied in contract interpretation cases, whereas the clear and convincing standard is applied in discharge and disciplinary cases in which moral turpitude is not involved (e.g., absenteesim, negligence, and insubordination). Some, but not all, arbitrators apply the proof beyond a reasonable doubt standard in discharge cases involving moral turpitude (e.g., theft and sexual harassment).
RULES OF EVIDENCE
One of the aspects of labor arbitration that is least well defined and most inconsistently applied is application of the rules of evidence. Because many labor arbitrators are not lawyers and because many arbitrators who are lawyers eschew technical procedures, the rules of evidence are often ignored or minimally applied. Other arbitrators, particularly lawyers with a litigation background, apply the rules of evidence so religiously that one might conclude the case is being heard in a court of law. This inconsistency causes a great deal of confusion and is especially troublesome to the lay advocate. It is the author’s firmly held opinion that a competent arbitration advocate should have a firm grasp of the basic rules of evidence, including such matters as the concept of relevant evidence, the “best evidence rule,” establishing authenticity of documents, essential con- cepts of the “hearsay rule” and its major exceptions, admissibility of offers of compromise, and other such rules that are likely to arise in any arbitration hearing. If an arbitrator in a case is a layperson and does not apply the rules of evidence, the advocate need not use his or her knowledge and skills with evidentiary rules. If, however, the arbitrator is a stickler for applying the rules of evidence, an advocate unschooled in such rules is at a serious disadvantage. Not only is his or her case presentation disadvantaged, but the advocate is likely to be embarrassed and downgraded in the eyes of his or her client.