The labor arbitration process is structured to provide parties with an orderly, equitable and accessible means of resolving conflicts within the labor-management relationship. Its intent is to facilitate efficient and unbiased resolution of disputes to the end that parties might be able to proceed with the conduct of business in a productive manner. Time, as well as cost and the preservation of the labor-management relationship, are of the essence. One way in which arbitration facilitates these goals is through relaxation of the rules and processes that would otherwise be required in formal litigation. 

This relaxation of the rules is particularly conspicuous with regard to introduction of evidence. While evidentiary rules are not absolute even in a more formal judicial setting, labor arbitrators have wide latitude to decide on evidentiary matters such as admissibility and when to apply certain evidentiary presumptions. 

The intent of this reduced stringency is not to signal that the arbitration proceeding, or the evidence provided therefor, is inconsequential. Rather, it is a recognition that the ability of arbitration meet its most critical goals — expediency, efficiency and economy among them — is unnecessarily hampered by overly strict rules. Flexibility in this area is considered safe since arbitrators are selected for their familiarity with the collective bargaining environment and therefore more than sufficiently qualified to exercise reasonable judgment with regard to the evidence presented.

How Evidence is Used in Labor Arbitration
In labor arbitration, as in other judicial proceedings, the evidence presented is used to ascertain the dispositive facts of a case, to identify and enforce applicable rules, and to determine appropriate remedial action. An arbitrator, whether holding closely or loosely to the rules of evidence, is looking to the parties to elucidate the dispositive facts upon which the case should turn. This is especially important where the facts are in dispute, as they often are. Advocates must convince the arbitrator, through the presentation of evidence, of the propriety of and justification for their positions. It is nearly impossible to accomplish this with information that is unreliable or inaccurate. 

During an arbitration hearing, advocates are free to present all evidence they believe to be relevant to their case. While certain evidence may be categorically excluded in a court of law, such evidence may appropriately be accepted by an arbitrator. The opposing party may object to any evidence provided. Objections will be carefully considered and noted, and the objecting party may also test the evidence through cross examination and/or rebuttal. The arbitrator may or may not uphold such objections, but need not do so within the strictures of judicial rules of evidence. He also may make his decision extempore, at a later time during the course of the hearing, or upon rendering the award, but he is not obligated to do so prior to admitting the evidence on the record. 

Advocates are often dismayed to hear that evidence will be accepted over their objections and “taken for what it’s worth”, with no explanation as to what that might actually mean for their case. The offering party is no more the wiser, but hopes to have slipped one under the fence, so to speak, that might work in their favor. Advocates on both sides of this issue should be aware that when competent arbitrators accept hearsay or potentially irrelevant evidence their intent is to facilitate, not to frustrate, parties’ ability to make a full and fair presentation of their case. This is a fundamental obligation of a labor arbitrator.

Advocates must also keep in view — as does the arbitrator — that, while the rules of evidence are relaxed at arbitration, the standards are not. The quality of the evidence provided does matter to the arbitrator and does affect the outcome of the case. For this reason, parties should make every effort to present their best evidence. 

What is Best Evidence?
Strictly speaking, the term ‘best evidence’ refers to documentary evidence, which includes written or recorded material, photographs and even videos. The rule holds that any such evidence presented should be the original article, rather than a copy. This helps to eliminate hurdles to authentication and reliability. The underlying assumption is that the original document is the true and accurate record of the information being offered, while a copy or later version may have been altered or otherwise become unreliable through processing of some sort.

An Expanded View of Best Evidence
Reliable and accurate evidence is critical to every labor arbitration case. Arbitrators expect that parties will provide the best documentary evidence possible in support of their case, and this is equally true of testimonial evidence. Arbitrators expect advocates to present witness who have first-hand knowledge of relevant facts rather than those who bear limited or potentially inaccurate information garnered from another source.

Second-hand testimony attains only to the level of a copy of an original document, and is assumed to be similarly susceptible to alteration, inaccuracy and unreliability. Just as the cure for less-than-best documentary evidence is to present the original article, so too the cure for less-than-best testimonial evidence is to present the witness, speaker, actor or other individual who possesses first-hand knowledge of the facts to be established. Putting Sally on the stand to testify to what she did is best evidence; putting co-worker Bill on the stand testify to what someone told him Sally did lacks authenticity and cannot be thoroughly tested at hearing. 

Even best evidence must be selective. To build an effective and convincing case, advocates should evaluate the relevance and materiality of the evidence to be presented. Evidence comprised of original documents and first-hand witnesses is of little use if the information they convey have no dispositive value. It is easy to become distracted by tangential factors that may be of significance to one or both parties but which are not substantive. These are often factors external or unrelated to the contract language, policies or work rules at issue. 

Attempts to bolster a weak case by presenting the arbitrator with “evidence” which — if relied on in deciding the case — would necessarily require him to apply inappropriate or unlawful standards are generally not successful. Examples include conclusions regarding budgetary decisions unrelated to the issues to be decided, information regarding the ethnic or other protected characteristics of any individual(s) when no questions of discrimination or adverse impact have been raised, and undue reliance on public or other opinions. Such strategies are more likely to muddle a case than strengthen it. It is far better to focus on amplifying the best evidence that is available than risk obscuring it with irrelevant and fustian flotsam. 

The Quality of the Evidence Affects the Outcome of the Case
While arbitrators draw on the relaxed rules of evidence to give both parties the greatest possible opportunity to make their cases by admitting into the record evidence that otherwise might not be accepted, advocates should not assume that admittance equals acceptance. 

When an arbitrator comes to the point of deciding a case, he will first assess and evaluate all of the information presented by both parties. Generally speaking, direct and corroborated evidence, i.e. best evidence,  is given great weight. Hearsay information may be disregarded altogether or, particularly where it is critical to the outcome, given significantly less weight than would have been granted had it come through a primary or more reliable source. This means that hearsay evidence ultimately may work against the party who sought its admission on the record.

Parties to labor arbitration have contracted for an arbitrator’s unbiased, fact-based analysis of the evidence and enforcement of the terms to which the parties have previously agreed. He is best equipped to meet those obligations when presented with a focused, factually sound and reliable set of evidences. Advocates have a single opportunity, during the hearing, to convince the arbitrator of the legitimacy of their respective positions. They should not assume that the relaxed evidentiary rules at arbitration equates to a diminishing of the acceptable standards of evidence. Arbitrators still expect that advocates will make every effort to present their best evidence, whether by documentary or testimonial means, and will, in the alternative, be prepared to demonstrate the validity and reliability of the evidence they are presenting. As a result, parties must carefully consider the totality of the evidence they will present and ensure all critical facts are conveyed in a manner that is accurate, complete and may be subjected to testing at hearing. Anything less will necessarily undermine the effectiveness of the case. 

 

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