Evidence and Argument

1
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

2
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

3
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
• Dont worry about it

4
Argument

• Opening Statement
• At the beginning of the hearing
• May be waived
• Closing Argument
• Written via brief
• Most common
• Oral via closing argument

5
Other Issues

• Reopening of Hearing
• Admissability vs. weight

6
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

7
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

8
Admissability of Evidence

• Court
• Strict rules of evidence
• Based on principles of an inexperienced jury
• Dont 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
  arbitrators decision?)

9
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

10
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

11
Objections

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

12
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

13
Joint Exhibits

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

14
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

15
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

16
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

17
Issues in Examining Witnesses (cont.)

• Impeachment
• Evidence that a witness should be believed
  (reliability)
• credibility

18
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

19
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

20
Other Types of DocumentaryEvidence

• Electronic Media
• DVDs
• CDs
• Audiotape
• Photographs
• Site Tour

21
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)

22
Evidentiary Standards

• Beyond a reasonable doubt (criminal trial
  standard)
• Clear and convincing evidence
• Discharge cases
• Preponderance of the evidence (gt50)
• Discharge cases
• Substantial evidence on the record as whole
• Substantial evidence
• Some evidence