Evidence and Argument

• Evidence – The asserted facts that the arbitrator will consider in

making a decision– Information– What is presented at the hearing– Can be testimony, documents, video, photographs,

etc.• Argument– The analysis of the facts and information from the

point of view of the advocate

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The Hearing – Attendance and Roles• Attendance– Advocates – the case presenter• Generally one per side

– The grievant• Unless it is a group grievance or an allegation of a

general contract violation• Various aides, helpers, onlookers, etc.

• Roles– Union • Represents the grievant

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The Hearing – What Happens

• Statement of the Issue– Have the parties agreed on an issue?• Yes – that is the issue• No – the arbitrator will formulate the issue

– Arbitrators Vary• Important to get a issue stipulation• Don’t worry about it

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Argument

• Opening Statement – At the beginning of the hearing– May be waived

• Closing Argument– Written via brief• Most common

– Oral via closing argument

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Other Issues

• Reopening of Hearing• Admissability vs. weight

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Evidence• The information – that the advocate will use to persuade the

arbitrator– the arbitrator will use to make the decision

• The Record– All evidence (testimony, documents, video, test

results, etc.) that has been admitted by the arbitrator

– Evidence (facts, etc.) is admitted only at the hearing

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Disclosure• Generally, all evidence to be used at an

arbitration hearing should be disclosed to the other side prior to the hearing– Should be developed in the grievance procedure– Time to prepare– “No surprises”

• “New” Evidence– If relevant, reliable, competent, may be admitted if a

good reason for previous nondisclosure– Other party may receive time to prepare

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Admissability of Evidence• Court– Strict rules of evidence– Based on principles of an inexperienced jury

• Don’t want to put in unreliable or irrelevant information that may lead a jury to make an incorrect decision

• Labor Arbitration– Generally not expected to follow strict rules of evidence

• Arbitrators experienced and can judge evidence

– Issues regarding offered (proffered) evidence• Will the arbitrator admit it?• If yes, how much weight will the arbitrator give it ?(How important

will the evidence be to the arbitrator’s decision?)

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Theories of Admissability in Labor Arbitration

• Strict Theory of Admissability in Arbitration• A minority rview

– Evidence must be • Reliable – demonstrates what it purports to demonstrate

– Accurate documents– Sufficiency of Information

• Relevant – related to the issue before the arbitrator• Competent – capable of accomplishing the purpose for

which it is offered (usually raised about a witness)– Does the witness know what he or she is talking about– Establishing a foundation that witness is knowledgeable regarding

the subject about which he/she will testify

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Theories of Admissability in Labor Arbitration (cont.)

• Liberal Theory of Admissability– Let the parties make their case– “Therapeutic” function of arbitration– Arbitrator skilled and experienced and can evaluate evidence– Can consider weight or reliability in opinion– “Would rather have it and not need it than need it and not have it”

• Not always sure of the direction a case will take

• Concerns– how much weight will the arbitrator give it?– Will the other side be required to rebut it?

• Most arbitrators will require a foundation for witness competence before witness can testify

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Objections

• Party must object if party believes offered evidence should not be admitted– State a reason• Unreliable• Irrelevant• Incompetent• “Asked and answered”

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Pre-Hearing Matters

• Each party should know – The witnesses the other party will call– The documents the other party will offer– Rationale• Time prepare • No surprises

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Joint Exhibits

• All documents that the parties agree are relevant and authentic– Need not agree with what is in the document

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Witnesses – Testimony• Expected to initially testify from memory• Order– Direct Examination (by party calling witness)– Cross Examination

• Need not be completely related to direct examination, within limits

– Redirect Examination– Recross Examaination– Ad nauseum

• May show witness documents admitted into evidence

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Issues in Examining Witnesses• Leading Questions – “Yes or No” Answer– Unacceptable for important matters on direct examination– Acceptable on Cross-Examination

• Hearsay – A statement of alleged fact based on what

another person heard and not subject to examination during the hearing

– Is it reliable?• Weight with respect to the rationale for a management decision• Less weight for the actual underlying event asserted

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Issues in Examining Witnesses (cont.)

• Opinion– Must demonstrate that the opinion offered is

based on the knowledge of the witness• A manager

– can give an opinion on the physical condition of the worker – that she smelled of alcohol

– cannot give an opinion technical aspects of impairment or alcohol dissipation

• Union president – Can give an opinion of a the meaning of a contract provision

• Expert Opinion

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Issues in Examining Witnesses (cont.)

• Impeachment– Evidence that a witness should be believed

(reliability)• “credibility”

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Documents • Generally documents - originals or photocopies, -are

presumed to be what they appear to be unless there is reason to believe otherwise

• Party offering the document should usually have the original to address any possible disputes

• Generally considered the “best evidence” of what is in the document, better than testimony about the meaning of document– The recipient, if there was a recipient, only knows that is in the

document– The document is contemporaneous with the event, no “faded

memory” problem• Internal documents

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Documents (cont.)

• Use of a document to refresh a witnesses memory– If document admitted

• Documents to summarize information from other documents or information– Provide to other party prior to hearing with

backup originals– Bring originals to hearing– Preparer may be required to testify

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Other Types of “Documentary”Evidence

• Electronic Media– DVD’s– CD’s– Audiotape

• Photographs• Site Tour

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Other Evidentiary Issues

• Offers of settlement usually inadmissable or disregarded• Parol Evidence (contract interpretation cases)

– Evidence on the intent of the does not outweigh the language of the contract

– May not be admitted by arbitrator

• Evidence related to criminal matters– Evidence not admissable in a court may be admissable in an

arbitration hearing • Courts, City of Evansville, 116 LA 1184

– Collective agreement may limit evidence that may be admitted• Copple, Friedrich Air Conditioning, 94 LA 249 (1990)

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Evidentiary Standards

• Beyond a reasonable doubt (criminal trial standard)

• Clear and convincing evidence – Discharge cases

• Preponderance of the evidence (>50%)– Discharge cases

• Substantial evidence on the record as whole• Substantial evidence• Some evidence