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N A T I O N A L P U B L I C E M P L O Y E E L A B O R R E L A T I O N S A S S O C I A T I O N

Academy II: The Grievance

Arbitration Process

2011 NPELRA 1012 South Coast Highway, Suite M

Oceanside, CA 92054 Phone 760.433.1686 • Fax 760.433.1687

Email: info@npelra.org

Legislative Office: c/o: Ulman Public Policy and Labor Relations

One Lafayette Centre, South Tower 1120 20th Street

Washington, DC 20036-3437

Portions reprinted with permission

Requests for permission to reproduce all or part of this publication should be addressed to NPELRA

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Table of Contents

Summary of Grievance Arbitration Law ........................................................................................................ 1

Public Policy and Arbitration Awards – The Continuing Saga ................................................................... 2

Some Basic Rules of Contract Construction ................................................................................................. 9

A Typical Agency Grievance Procedure & Discipline Provision ............................................................. 10

I. Grievance Procedure .......................................................................................... 10

II. Disciplinary Appeal Procedure ...................................................................... 12

III. Conduct of Hearing ........................................................................................ 14

IV. Time Limits ...................................................................................................... 14

V. Witnesses ............................................................................................................ 14

The Seven-Part Test for Determining Whether the Employer Had Just and Proper Cause for

Disciplining an Employee ............................................................................................................................... 15

The Questions......................................................................................................... 15

Burden of Proof Checklist .............................................................................................................................. 18

Submission Agreements and Stipulations .................................................................................................... 19

Submission ........................................................................................................................................................ 21

Selection of Arbitrator .................................................................................................................................... 24

Process ..................................................................................................................... 24

Evaluation................................................................................................................ 25

Logistics ................................................................................................................... 26

Initial Case Preparation ................................................................................................................................... 26

Develop the Facts .................................................................................................. 26

Develop the Law .................................................................................................... 27

Develop a theory for Your Case .......................................................................... 27

Develop Theory of Union‟s Case ........................................................................ 27

Final Case Preparation .................................................................................................................................... 28

Witnesses ................................................................................................................. 28

Exhibits .................................................................................................................... 28

Subpoena ................................................................................................................. 28

Prepare Opening Statement .................................................................................. 29

Outline Oral Closing Argument ........................................................................... 29

Final Case Preparation .................................................................................................................................... 29

Order of Testimony ............................................................................................... 29

Describe Arbitration Setting ................................................................................. 29

Arbitration Procedures .......................................................................................... 30

Witness Practice Sessions ...................................................................................... 30

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How Witnesses can Assist with Case Presentation ........................................... 31

Reorganization of Case Presentation .................................................................. 31

Common Case Theories ........................................................................................ 31

Checklist for Testifying as a Witness ............................................................................................................ 32

Questions .......................................................................................................................................................... 35

Questioning of Witnesses ..................................................................................... 35

Framing Questions ................................................................................................. 35

Grievance Arbitration Checklist .................................................................................................................... 36

Pre-Hearing ............................................................................................................. 36

Case Preparation Outline ................................................................................................................................ 41

Evidence in Arbitration................................................................................................................................... 54

Evidentiary Standards in Arbitration ............................................................................................................ 56

Practical Rules for Objecting ......................................................................................................................... 57

The Most Common Objections Used in Arbitration ................................................................................. 59

Objections to Offered Evidence .......................................................................... 59

Objections to the Form of the Question ............................................................ 60

How to Place Exhibits in Evidence .................................................................................. 62

Effective Cross Examination ............................................................................................. 63

Evaluating the Credibility of Witnesses ............................................................................ 63

Leading Questions ............................................................................................................... 64

One Question Too Many.................................................................................................... 65

Prior Inconsistent Action ................................................................................................... 65

Use Logical Relationships ................................................................................................... 65

Impeachment by Omission ................................................................................................ 67

Finding the Pressure Point ................................................................................................. 69

Closing the Trap ................................................................................................................... 72

Opening Statements ............................................................................................................ 74

Direct Examination ............................................................................................................. 75

Leading Questions ............................................................................................................... 75

Narrative Testimony ............................................................................................................ 76

Irritating Habits to Avoid ................................................................................................... 76

Documentary and Other Demonstrative Evidence ........................................................ 77

Best Evidence ....................................................................................................................... 77

Effective Rebuttal ................................................................................................................ 77

Closing Your Case: Oral Argument at the Hearing or Post-Hearing Brief ............................................. 79

The Eight Essential Steps in Grievance Processing ................................................................................... 84

Pre-Arbitration ........................................................................................................ 84

Presentational Skills: A Quick Reference Guide for Advocates...................... 89

Persuading the Arbitrator ............................................................................................................................... 99

Introduction ............................................................................................................ 99

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Practice Tips .......................................................................................................... 106

Challenging Grievance Arbitration Awards Based on Public Policy Grounds .................................... 122

Grievance-Arbitration for the Beginner or Why Did I Take This Job and What Should I Do

Now? ............................................................................................................................................................... 129

Problems Regarding Contract Construction ............................................................................................. 135

Exercise #1: Drafting Response to a Grievance .................................................................................... 1379

Exercise #2: Analyzing Contract Language ............................................................................................ 1383

Exercise #3: Selection of an Arbitrator ................................................................................................... 1384

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Summary of Grievance Arbitration Law

wo types of arbitration resolve public sector employment disputes: Grievance Arbitration and Interest Arbitration. Grievance arbitration concerns disputes regarding the interpretation and enforcement of rights under an existing contract, or under an employer‟s policies or

regulations. Interest arbitration concerns disputes over the terms of a new or re-opened collective bargaining agreement or memorandum of understanding, after the parties have reached an impasse in contract negotiations. This section addresses grievance arbitrations, which are far more common than interest arbitrations. In grievance arbitrations the arbitrator is employed as the final step of the contractual grievance mechanism and derives his or her authority from the contract itself. The arbitrator has no authority to amend the contract or to create rights independent of the contract. In resolving grievances over contract application or interpretation, the arbitrator is limited to deciding what the parties intended in their agreement. If the arbitration agreement grants an arbitrator the right to award any remedy available under state law, the arbitrator may award attorneys‟ fees as a sanction. Arbitrators must disclose to parties any dealings that might create an impression of possible bias, including sporadic but substantial business relationships, even in the absence of actual fraud, corruption or partiality.

Grievances typically concern either issues of contract interpretation or discipline issues. The two topics often overlap. Contract interpretation grievances, which claim the employer violated or misapplied a contract provision, may cover a variety of issues, including seniority, job assignments, transfers, promotion or pay claims. Arbitrators must often decide the parties‟ intent with respect to ambiguous contract language. To determine intent, the arbitrator may consider the language in the agreement, the negotiating history or the parties‟ past practice.

Discipline cases may address the propriety of written reprimands, suspensions, demotions or terminations. To determine whether discipline is warranted, however, an arbitrator may need to interpret related contract provisions such as those describing attendance requirements.

Duty to Arbitrate: Differences between union and management arise frequently regarding whether the collective bargaining agreement‟s arbitration clause covers the topic in dispute. Questions of arbitrability may also arise if a claim is not processed in a timely manner, in accordance with contractual timelines. In many states the arbitrator may make the decision regarding whether or not an issue is arbitrable in a separate hearing. In other states, instead of the arbitrator making this decision, the parties to the agreement have appealed to the courts for a determination of coverage.

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Public Policy and Arbitration Awards –

The Continuing Saga

By Luella E. Nelson Arbitrator-Mediator-Factfinder, Oakland

wo years ago, it appeared that the U.S. Supreme Court had decided definitively when a court could overturn an arbitration award for violating “public policy.” In the Miscoi case, the Court attempted to define the public policy exception to the basic rule that the courts will

defer to arbitration awards.

The appeal courts nevertheless remain in conflict over the source and nature of the public policy exception, at least where the reinstatement of errant employees is concerned, and the high court is being asked again to address the issue. The case is Stead Motorsii, in which the Ninth Circuit Court of Appeals planted itself firmly in opposition to a broad formulation of the public policy deemed sufficient to overturn an arbitrator‟s award ordering an employee‟s reinstatement.

While the employer in Stead Motors is seeking review by the Supreme Court (a petition was filed February 2), it is appropriate to look at the nature and extent of the conflict among the appellate courts and at the likelihood of the high court accepting the case.

From “Steelworkers Trilogy” to Misco

In the 1960 “Steelworkers Trilogyiii,” the Supreme Court articulated the interplay between the courts and arbitration of labor relations disputes. The Trilogy established a judicial policy of refusing to review the merits of arbitral awards and limited judicial review to the rare case in which the arbitrator applies “his own brand of industrial justice” and issues an award which fails to “draw its essence from the collective bargaining agreement.” The theory underlying the deference to arbitration was that the parties bargained for the arbitrator‟s judgment to flesh out the meaning of their contract and thus that the courts had no more role in this process than in dictating the substance of the initial contract.

Subsequent litigation refined this virtually unqualified deference to arbitral decision making. Beginning with W.R. Graceiv in 1983, the Supreme Court recognized a narrow exception to the general rule of deference where the award violates an explicit “public policy.” The employer in Grace had settled a Title VII lawsuit by signing a consent decree modifying the operation of a contractual seniority provision. In reviewing a grievance filed by male employees laid off after their seniority was adversely affected by the consent decree, the arbitrator held that the employer acted at its own risk in breaching the contract and directed the employer to comply with the contractual seniority provision.

The Supreme Court held that “a court may not enforce a collective-bargaining agreement that is contrary to public policy” and that the courts, rather than arbitrators, should resolve issues of public policyv. It set forth three principal criteria for determining whether a “public policy” exists, explaining that such a policy must be (1) explicit, (2) „well defined and dominant” and (3) demonstrable “by reference to the laws and legal precedents” rather than the product of the parties‟ or courts‟ “general considerations of supposed public interests.vi” The court concluded that the arbitrator‟s award did

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not contravene public policy, noting that the employer was not required to violate the consent decree, but merely to remedy its breach of the contract.

As might be expected, the lower courts found it difficult to draw the line between arbitral awards which violated public policy and those with which the reviewing courts merely disagreed.

Some courts, particularly the District of Columbia Circuit, took the narrow view of the public policy exception.vii Others were more willing to find public policy reasons for overturning awards. The conflict led to the Supreme Court in 1987, hearing the Misco case in an effort to clarify the public policy exception.

In Misco, the Court reviewed the Fifth Circuit decision to deny enforcement of an arbitrator‟s reinstatement order. The employee in question operated a hazardous machine; marijuana was found in his car on the company parking lot and at his home. The Court rejected the Fifth Circuit‟s suggestion that a public policy existed “against the operation of dangerous machinery by persons under the influence of drugs or alcohol.”viii The Court declined to decide whether an explicit statute, regulation, or other positive law was required as an expression of public policy, but noted that the lower court had erred in failing to review existing laws and legal precedents for an explicit, well defined, and dominant public policy in place of the general public policy on which the lower court had relied. Furthermore, the Court noted that the lower court had improperly engaged in fact finding in making a connection between the discovery of marijuana and the prospect that the employee might operate machinery while under its influence.

Appellate Court Applications of Misco

The diversity of opinion among the circuit courts has persisted despite Misco. As the clearest example, the District of Columbia and 11th Circuits reached opposite conclusions in remarkably similar cases involving intoxicated airline pilots.

In the earlier of the two cases, Northwest Airlines,ix a pilot was discharged for copiloting a passenger aircraft just prior to a test which measured his blood alcohol at .13. A board of adjustment found that alcoholism was a disease and hence was not just cause for discharge, then ordered his reinstatement without back pay, conditioned on proof of his recovery from alcoholism and recertification by the Federal Aviation Administration (FAA). The pilot had already sought treatment for his alcoholism and the FAA had found him eligible for special issuance of a first-class airman medical certificate permitting him to pilot aircraft; nevertheless, the board required him to meet the more stringent FM standard of recertification.

The D.C. circuit‟s opinion was written by Judge Harry Edwards, a respected arbitrator and labor law professor prior to his elevation to the bench. The court noted that both the airline and the FAA allowed recovered alcoholics to fly, and suggested that it would be “judicial chutzpah” to second-guess the FAA as to a pilot‟s fitness to fly. Thus, since the reinstatement remedy was conditioned on FAA action, the court found that no public policy concern was raised by the board‟s award.

The Deltax case involved a pilot who was discharged after he piloted a passenger aircraft while under the influence of alcohol with the same blood alcohol content (.13) as in Northwest. Like the pilot in Northwest, the Delta pilot had enrolled in an alcoholism treatment program at his own cost. The board found that Delta should have offered the pilot the option of entering Delta‟s alcohol

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rehabilitation program in lieu of discharge, and ordered Delta to pay for the pilot‟s rehabilitation program and cooperate with the pilot and the FAA in securing special issuance of a first-class airman medical certificate (the same certificate which had already been issued to the pilot in Northwest by the time that case went to arbitration). The board also ordered reinstatement conditioned on completing the rehabilitation program and securing FAA certification.

The 11th Circuit vacated the reinstatement portion of the remedy, finding a public policy concern in the virtually universal federal and state laws making it illegal to operate an aircraft while intoxicated. Although the court observed that the disfavored conduct must be “integral to the performance of employment dutiesxi,” its opinion made no mention of the significance, if any, of the FAA‟s issuance of a first-class airman‟s medical certificate in determining how “integral” the conduct was.

While perhaps not offering so stark a contract, other circuit courts also exhibit a lack of agreement on the meaning and limits of Misco‟s public policy exception. Thus, in Iowa Electricxii the Eighth Circuit found a “well defined and dominant national policy requiring strict adherence to nuclear safety rules”xiii and therefore, vacated an arbitrator‟s ward reinstating a nuclear power plant employee who defeated a safety interlock system at a nuclear reactor in order to leave for lunch early.

An employee who engaged in another form of prohibited conduct fared better before the 10th Circuit in Southeastern Electricxiv, where the court found that the “paramount importance” of preventing “assault and sexual oppression of women” did not bar reinstatement of a 19-year employee who sexually assaulted a female customer in her home. The arbitrator had concluded that “a one-time offence, albeit it was a sexual offense of a serious nature in a sensitive industry, should not lead to discharge.” The arbitrator further noted the employee‟s penitent attitude and that the employer had warned another employee that a second sexual offense on the job would result in termination. The court declined to substitute its judgment and found the conduct so integral to the employee‟s employment duties as to require his discharge under the 11th Circuit‟s public policy standard in Delta.

Similarly, the Third Circuit in another case declined to find a public policy barring reinstatement of a postal employee who fired gunshots into his postmaster‟s empty car.xv

The Stead Motors Case

The first post-Misco case in the Ninth Circuit Stead Motors, involved an automobile mechanic and union steward. A year before his discharge, the grievant received a written warning for failing to properly tighten lug bolts after installing a tire. A month before his discharge, he was ordered to follow his foreman‟s instructions after an argument over the proper procedure for tightening lug bolts.

The grievant was discharged after a customer found the lug bolts loose on his Mercedes Benz. At the hearing, the employer alleged that the discharge decision was based on three factors: (1) the earlier warning letter for the same problem, (2) the grievant‟s “attitude” and continual problems working with supervision, and (3) his “recklessness”xvi and the resulting risk of liability exposure.

The grievant testified that he had properly tightened the lug bolts and road-tested the car, and the union presented evidence that serious damage would have occurred had the car in fact been driven

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with loose lug bolts. The union then argued among other things, that the grievant was “setup” by someone who loosened the bolts after he finished working on the car.

The arbitrator discredited the union‟s theory of a “set up,” and found the grievant responsible for the loose lug bolts. However, he went on to conclude that the employer had not established two of the three grounds relied on for the discharge, noting as to the first that the contract no longer permitted the employer to rely on the earlier warning letter. As to the second he found that the “attitude” problem included a concern over the grievant‟s zealousness as a union steward.xvii However, he noted that the warning letter had put the grievant on notice of the importance of properly tightening lug bolts. In view of that letter and his recent dispute with his foreman over the lug bolt procedure, the arbitrator found the grievant “particularly careless and irresponsible” and, therefore, reckless in not properly tightening the lug bolts. Having determined that the employer had established only one of the three factors on which it relied, he concluded that discharge was too severe a disciplinary action and reduced it to a 120-day suspension to “serve as an object lesson and impress upon Grievant that he is required to follow instructions and perform his job duties fully and carefully.”xviii

In its motion to vacate the award, the employer for the first time argued that the grievant‟s reinstatement would violate public policy, an argument that was successful at the district court level and again before a three judge panel of the Ninth Circuit. The sources of the “public policy” were (1) the fact that the State of California licenses automobile repair shops, and (2) the existence of a Vehicle Code prohibition on operating vehicles in an unsafe condition. Although the record was silent concerning the licensing standards for automobile repair shops, the original Ninth Circuit panel found, among other things, that the employer “could not have kept [the grievant] and stayed in business.”xix

Granting a rehearing “en banc” (before a panel of 11 judges), the Ninth Circuit criticized both the arbitrator and the district court for the quality of their respective written work and discussed at length the arbitration process, the arbitrator‟s function and the deference due an award. Reversing the original panel the full court echoed the D.C. Circuit‟s view that the “public policy” exception was intended to be a very narrow one. The court noted that because the parties agreed to let the arbitrator fill in the gaps of their contract reviewing as award “is more akin to the review of a contract than of the decision of an inferior tribunal; the award, just as a contract is the expression of the parties‟ will and must be enforced as expressed unless illegal or otherwise void.”xx

The public policy exception, said the court, applies only where (1) a court discerns an overriding public policy rooted in something more than “general considerations of supposed public interest,” and (2) the policy is one that specifically militates against the relief ordered by the arbitrator.xxi The court followed Misco‟s lead in sidestepping the question of whether the policy must be expressed by a “statute, regulation or other manifestation of positive law.”

The court noted that it would be rare to find a public policy barring reinstatement if the arbitrator expressly or impliedly found that the employee was subject to rehabilitation and therefore not likely to commit an act which violates public policy in the future. The court left such findings within the province of the arbitrator.

Criticizing the circuit court decisions in Delta and Iowa Electric, the court suggested that they could be explained as “hard” cases involving highly regulated industries and a potential risk to the lives of

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many people. Alternatively, the court suggested that the Iowa Electric case could have been grounded on a finding that the unique safety concerns embodied in the regulations and statutes governing the nuclear power industry established a public policy barring reinstatement of employees who commit safety violations.

The court suggest that where agencies involved in administering public policy (such as the FAA) have acted,xxii that may be enough of an “explicit, well defined and dominant” expression of a public policy to permit the courts to intervene. But it noted that no such agency action had occurred in the case at hand. The court was unable to find a public policy prohibiting reinstatement of a mechanic who commits a reckless act in the course of his employment and noted that the Vehicle Code provisions represented only a broad public interest and did not address the issue of employee reinstatement.

The court rejected the notion that, “simply because an employee has committed some act which violates a law or a public policy in the course of his employment his reinstatement would also necessarily violate that public policy.” Such an argument, the court suggested, presumes that the employee will engage in the same conduct again regardless of effective discipline and rehabilitation. The court left such judgments to the arbitrator.

The 11 Ninth circuit judges were not unanimous in their opinions. Three judges concurred in the portion of the majority opinion finding that the employer had not demonstrated the existence of a public policy interest that met the Misco Standards. The concurrence suggested that this conclusion should have ended the case. It rejected the idea that an arbitrator‟s factual findings regarding amenability to discipline are immune from judicial review, noting the possibility of overturning an award where a party could demonstrate the existing of a public policy meeting the Misco standard, yet the arbitrator found the worker amenable to discipline. The concurrence agreed that the Iowa Electric and Delta decisions “erroneously focus on whether public policy conflicts with the discharged worker‟s past conduct instead of with the arbitral award” and suggested that both cases met Misco‟s first threshold requirement of a properly framed public policy.

Two dissenting judges adopted the rationale of the original three judge panel and the Eighth and 11th circuits. After suggesting that the narrow scope of review adopted by the majority “choked” the public policy exception “into oblivion,” the dissenters reviewed two arbitration awards – one involving medication and treatment errors by a nurse, and the other drug use by a power company employee – and suggested other hypothetical cases where the majority‟s rule would sanction reinstatement of an employee guilty of serious misconduct “if a non-lawyer arbitrator, beholden to no one other than the parties to the contract in question decided to cut the baby in half and put the offender back to work.”xxiii

Commentary

To summarize, the cases illustrate that the courts have limited their role in public policy cases to extraordinary situations. In order to apply the exception and overturn a reinstatement award, a court must do more than conclude that discharge was warranted. It must find that public policy would be violated if the individual were reemployed in that industry, that is, that the employee must never again be allowed in that occupation.

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Furthermore, the public policy exception is a one-way street and provided no grounds for an unsuccessful grievant to overturn an award. For example, no re-certified airline pilot could argue successfully that an arbitrator breached public policy in upholding his discharge for intoxication. Rather, the public policy argument arising only where an arbitrator has concluded that no just cause for discharge existed.

Thus, to apply the exception, a reviewing court must be willing to do what it would not otherwise to absent evidence of arbitral misconduct conclude that the arbitrator misjudged the employee‟s acceptability in the employer‟s workforce.

While predictions are always risky, the Supreme Court is not likely to grant review in Stead Motors, in the writer‟s opinion. The indication is that the court will permit the circuits to continue toying with the scope of the exception, at least in cases applying a narrow exception. So far, review has not been sought in any of the cases which applied the exception broadly. But the Court declined two invitations to review the D.C. Circuit‟s narrow application of the public policy exception,xxiv and Stead Motors applies a similar narrow interpretation.

Nor does Stead Motors present factors that might lead to clarification of the limits of the reinstatement aspect of the public policy exception. The arbitrator‟s rationale for reducing the discharge to a suspension – failure to establish two out of the three bases for discharge – is a conventional one. The remaining basis asserted for discharge, recklessness, is an offense often found amendable to corrective discipline. A loose automobile wheel arouses gut-level fears about safety on the highways, but arbitrators regularly review discipline for sloppy work with similar safety implications in a variety of industries,xxv many of which evidence a greater public concern by specifically regulating employment.xxvi

Finally, since the public policy issues was not presented to the arbitrator, Stead Motors does not offer an opportunity for the court to address an open and significant question – the extent of an arbitrator‟s responsibility to take “public policy” concepts into consideration when framing a remedy. In short, the case does not seem to present issues that the Court would be inclined to address.

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ii Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173 886 F.2d 1200 (9th Cir. En banc, 10-6-89); reversing 843

F.2d 358 (9th Cir. 1988); see CPER No. 83, pp. 43-44.

iii Steelworkers of America v. American Manufacturing Co. 363 U.S. 574 (1960); United Steelworkers of America v. Warrior & Gulf

Navigation Co., 636 U.S. 574 (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

iv WR Grace & Co. v. Local Union 759, 461 U.S. 757 (1983).

v Id. at 766

vi Id.

vii See e.g., U.S. Postal Service v. Letter Carriers, 810 F.2d 1239 (D.C. Cir. 1987); cert. Granted 108 S.Ct. 500 (1987); cert.

Dismissed, 108 SCt. 1589 (1988)(award not contrary to public policy where it reinstated a postal carrier who was terminated

after more than 3,500 undelivered pieces of mail were found in his car, he was convicted of a federal crime and was

sentenced to 18 months probation and ordered to get treatment for a gambling addiction; court found no “legal

prescriptions against reinstatement” of persons such as the grievant).

viii Misco, Inc., v. United Paperworkers Intl. Union 768 F.2d 739, 743 (5th Cir. 1985)

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ix Northwest Airlines v. Air Line Pilots Assn. Intl., 808 F.2d 76 (D.C. Cir. 1987), cert. Denied, 108 S.Ct. 1751 (1988).

x Delta Air Lines v. Air Line Pilots Assn. Intl., 861 F.2d 665 (11th Cir. 1988)

xi Id. At 671

xii Iowa Elec. Light & Power v. Local Union 204, of Intl. Bro. of Elec. Workers 834 F.2d 1424 (8th Cir. 1987)

xiii The Eighth Circuit had earlier dissented a public policy of denying unstable employees access to sensitive areas of nuclear

plants in Daniel Construction Co. v. Local 257, IBEW, 856 F.2d 1174 (8th Cir. 1988); cert. Denied, 109 S.Ct. 1140 (1989). In

that case, an arbitrator found that a psychological screening test was not valid and therefore ordered reinstatement of

employees who had failed the test. The district court held that, since the arbitrator found the test invalid, no public policy

was involved. The circuit court acknowledged the existence of a public policy, but found that public policy was not breached

by the award.

xiv Communications Workers of America v. Southeastern Electric Cooperative of Durant, Oklahoma, 882 F.2d 467 (10th Cir. 1989)

xv U.S. Postal Service v. National Assn. of Letter Carriers, 839 F.2d 146 (3d Cir. 1988)

xvi The contract required a written warning prior to discharge except for certain enumerated conduct, including recklessness.

Written warnings were in effect for only 30 days.

xvii While he found that the union had made a prima facie case that the grievant‟s union activities were a motivating factor in

the discharge, he noted that there had been no recent instances of union activity on his part and concluded that, “but for”

the lug bolt incident, he would not have been discharged.

xviii Unpublished award dated November 3, 1986, sl. Op. at 14.

xix 843 F.2d at 359

xx 886 F.2d at 1205-6. The court also noted that the public policy exception “is actually nothing more than a specific application

of the general rule that a court cannot enforce any contract that contravenes public policy” Id at 1209, n. 9.

xxi Id. at 1212-1213

xxii E.g., in Iowa Electric, the nuclear Regulatory Commission reprimanded the employer for the breach of reactor safety and

approved the discharge; similarly, in Delta, the FAA suspended the pilot‟s license and medical certification, indicating he was

neither “fit” nor “qualified” to fly. In Northwest, however, the FAA recertified the pilot after completion of an alcohol

rehabilitation program.

xxiii Id. at 1224

xxiv Following Misco, the Court dismissed a writ of certiorari in the D.C. Circuit‟s Letter Carriers case, supra, n. 7. It has since

denied a petition for a writ of certiorari in the same circuit‟s Northwest Airlines case, supra, n. 9. As noted above, both cases

took a “narrow” view of the public policy exception in reinstatement cases.

The Court has also denied a petition for a writ of certiorari in a “narrow” case arising in the Second Circuit. In Maggio v. Local

1199, 702 F.Supp. 989 (E.DN.Y.), aff‟d without op‟n, 880 F.2d 1319 (2d Cir. 1989), cert. Denied, 110 S.Ct. 329 (1989) a

district court confirmed an arbitration award ordering the reinstatement of a nurse‟s aide who had been discharged for

patient abuse. The district court interpreted Misco as calling for a two-part test permitting vacation of an arbitration award

only where “(1) the policy relied upon is „well-defined‟ and „dominant‟ and (2) a clear link exists between enforcement of the

award and violation of the policy.” Id. at 994.

xxv The most sensitive industry for public policy issues may be the health care industry. Union attorneys joke that the most

difficult case to win in arbitration is one involving a nurse who has made a life-threatening medication error on an elderly

patient, as the older male arbitrators who make up the bulk of the profession find it all too easy to identify with the patient.

xxvi The California business and Professions Code regulates the automobile repair industry and provides a separate

administrative agency to administer the applicable code sections; this is also true of a variety of industries. Like advertisers

and dry cleaners, and unlike engineers, nurses, and real estate brokers, the code does not license or otherwise determine the

qualifications of employees in the automobile industry (except for individuals performing specific functions such as smog

inspections). See Sec. 9880

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Some Basic Rules of Contract Construction

Clear, specific and unambiguous language should prevail over: a) The parties‟ past practices; and b) Testimony as to the parties‟ intent (negotiations history).

Language that is patently ambiguous will generally be given meaning by reference to: a) The history of negotiations as expressed to each other b) The parties‟ consistent past practices; c) Industry practices; and d) May be construed against the drafter of the provisions.

Language that is latently ambiguous will generally be given meaning by reference to: a) The parties‟ consistent past practices; and b) Rule of reason

When a conflict exists regarding two or more provisions of the contract: a) The specific provision will control over generalized statements; b) The conflicts will be resolved on the basis that the contract is to be interpreted

as an integrated, logical and consistent document; and c) With every provision of an agreement having meaning, and having some value

to at least one party.

Contract provisions must be applied equitably, consistently and in a non-discriminatory fashion

Questions of grievability and arbitrability will be resolved frequently in favor of a ruling on merits of the grievance.

When listing examples or other enumerated items, the listing of one item will be read to exclude those not listed.

Words will be given their ordinary meaning. However, synonymous words sometimes will be read as having separate meanings.

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A Typical Agency

Grievance Procedure & Discipline Provision

I. Grievance Procedure

1. Purpose

The purpose of this Grievance Procedure is to promote communication and improve employer-employee relations by establishing a process to encourage settlement of such disputes. The parties recognize that it is in their mutual interest to resolve problems expeditiously at the lowest possible administrative level. Any resolution or dispute at this level must be consistent with the terms of the Agreement.

2. Definition

A grievance shall be defined as a dispute arising from the application or interpretation of a specific Article or Articles of this Agreement or specific section(s) of the City Personnel Rules and Regulations that is brought in writing by the grieving party to the attention of the other party. It is expressly understood that no disciplinary action imposed by the City shall be considered cause for a grievance unless it is specifically alleged that such action represents an incorrect application or violation of this Agreement. In no event shall this Agreement alter or interfere with the disciplinary procedure heretofore followed by the City, or provided for by the City Personnel Rules and Regulations, ordinance or law, including the procedure for appeals thereof as provided in Section 9.00.

3. Procedure

1. Step 1

The affected employee and/or his/her Union Representative shall submit a written grievance to his/her Police Captain within ten (10) working days of the date the grieving party could reasonably have become aware of the alleged violation. The written grievance shall contain the following information:

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a. A statement of the grievance and the facts upon which it is based.

b. The specific Article or Articles of this Agreement or the City Personnel Rules and Regulations alleged to have been violated.

c. The remedy requested.

d. The signature of the aggrieved employee.

The Police Captain shall respond in writing within ten (1) working days of receipt of the written grievance. The written response at this step (and all Management responses at all steps hereafter) shall contain the following information:

a. An affirmation or denial of the facts upon which the grievance is based.

b. An analysis of the alleged violation of the agreement.

c. A response to the remedy requested.

d. The signature of the Police Captain.

2. Step 2

If the grievance is not resolved at Step 1, the grievant or his/her Representative shall submit the written grievance to the Police Chief within ten (10) working days of receipt of the Police Captain‟s written response. The Police Chief shall respond in writing to this grievance within ten (10) working days of his/her receipt of the written grievance.

3. Step 3

Should the grievance remain unresolved at Step 2, the written grievance shall be submitted within then (10 working days of receipt of the Step 2 response, to the Personnel and Employee Relations Director or the City Manager (at the grievant‟s selection) who shall meet with the Union Representative within thirty (30) working days of his/her receipt of the written grievance. The Personnel and Employee Relations Director or City Manager shall provide a written response within ten (10) working days of the date of discussion with the Union Representative.

4. Step 4

If the grievance is not resolved at Step 3, the Union Representative shall, within ten (10) working days of receipt of the Step 3 response, notify the Personnel and Employee Relations Director in writing of the request to submit the grievance to arbitration.

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4. Arbitration

The names of five (5) arbitrators shall be obtained from the California State Mediation and Conciliation Service. By coin toss, the winning party shall strike one (1) name from the panel list. The other party shall strike one (1) name alternately until only one (1) name remains, who shall serve as the arbitrator. Notwithstanding the foregoing, nothing shall prevent the parties from mutually agreeing to request the services of a given arbitrator to hear the dispute. The City and the Union agree to divide equally the cost of the arbitrator and the court reporter; each party bears their own legal representation costs. The arbitrator‟s decision shall be final and binding; however, the arbitrator shall have no power to render a decision that will add to, subtract from or alter, change or modify the terms of this Agreement, and his/her power shall be limited to the interpretation or application of this Agreement. The arbitrator shall issue a written decision within thirty (30) calendar days of the close of the hearing, or issue a bench decision if mutually agreed to and requested by both parties to this Agreement.

5. Time Limits

Any or all time limits specific in this grievance procedure may be extended by mutual agreement; requests for an agreement to extend any deadline shall be confirmed in writing. Failure by the employee or the Union to follow the established time limits unless extended by mutual agreement shall cause the grievance to be considered withdrawn. Failure by the City to follow the established time limits shall cause the grievance to be settled in favor of the employee.

6. Witness

Persons who have direct knowledge of circumstances relating to the grievance may be released from their duties to provide testimony as any stage of the proceedings. At the request of either party, witnesses who have not yet testified may be sequestered from the hearing. The grievant or his/her Union Representative shall provide reasonable advance notification to the City of any requests to release employees from their regular duties to attend any such proceedings. In the case of employees, they shall be compensated at their regular rate of pay for actual time spent in such meetings.

II. Disciplinary Appeal Procedure

7. Election of Procedures

At the time of filing a written appeal involving a disciplinary matter as defined below, the appellant must elect to utilize either the following procedure, or the procedure outlined in the City Personnel Rules and Regulations, Section 12.00. Election of either procedure shall preclude utilization of the other. An appeal from disciplinary action filed under this Section shall be subject to the following procedure:

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8. Definition

For the purpose of this provision, disciplinary action shall mean Written Reprimand, Reduction in Salary, Suspension, Demotion, Disciplinary Transfer, or Discharge imposed by the City.

9. Exclusions / Limitations

This procedure shall not be applicable under the following circumstances, nor shall it be applicable to any City actions(s) as to which an administrative appeal already exists elsewhere in the M.O.U. or in law.

1. Probationary employees who are rejected during probation shall have not right of appeal, except to be afforded an opportunity to meet with the Police Chief.

2. Any temporary or provisional employee.

10. Procedure

Appeals from a discipline imposed by a Police Captain must be initiated at Step 1. Appeals from a discipline imposed by the Police Chief may be initiated at Step 2. Appeals from a discipline imposed by the City Manager may be initiated at Step 3.

1. Step 1

The affected bargaining unit employee may appeal the imposed discipline to the Police Chief or his/her designee within ten (10) working days of receipt of notification of imposed disciplinary action; such appeal shall be filed in writing, with the Police Chief of his/her designee. The Police Chief or his/her designee shall provide a written response to the employee within ten (10) working days of grievance submittal to the Police Chief or his/her designee.

2. Step 2

If the affected employee is dissatisfied with the response at Step 1, he/she may file a written appeal with either the Personnel and Employee Relations Director or City Manager (employee‟s selection), who shall meet with the Union Representative within thirty (30) working days of receipt of the appeal from Step 1. The Personnel and Employee Relations Director or City manager shall provide a written response to the affected employee within ten (10) working days of the date of discussion with the Union Representatives.

3. Step 3

If the affected employee is dissatisfied with the response at Step 2, he/she, or the Union Representative may request involvement of a

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Factfinder within thirty (30) days of the meeting held at Step 2, by filing a Written Notice with the Personnel & Employee Relations Director. The names of five (5) Factfinders shall be obtained from the California State Mediation Service. Beginning with a coin toss, the City and the Union shall alternately strike names from the list until one remains. The City and Union agree to divide equally the cost of the Factfinder and the court reporter. Each party bears their own legal representation costs. The Factfinder designated to hear the appeal shall submit findings of fact and conclusions to the parties. Said recommendations must be accepted by both the Union and the City Council in order to be effective. In the event the recommending findings of fact and conclusions are rejected by either party, the determination at the previous level shall stand. The Factfinder shall have no authority to add to, subtract from, alter, damage, or modify the terms of this Agreement, and his/her power shall be limited to addressing the facts and merits of the disciplinary action being appealed.

III. Conduct of Hearing

The hearing shall be conducted according to the Code of Civil Procedure, Section 1282, et seq.

IV. Time Limits

Any or all time limits specified in the appeal procedure may be extended by mutual agreement; requests for an agreement to extend any deadline shall be confirmed in writing. Failure by the employee or the Union to follow the established time limits unless extended by mutual agreement, shall cause the appeal to be considered withdrawn. Failure by the City to follow the established time limits, unless extended by mutual agreement, shall cause the appeal to be deemed settled in favor of the employee.

V. Witnesses

Persons who have direct knowledge of circumstances relating to the appeal may be released from their duties to provide testimony. At the request of either party, witnesses who have not yet testified may be sequestered from the hearing. The appellant or his/her Union Representative shall provide reasonable advance notification to the city of any requests to release employees from their regular duties to attend any such proceedings.

In the case of employees, they shall be compensated at their regular rate of pay for actual time spent attending such meetings.

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The Seven-Part Test for Determining

Whether the Employer Had Just and Proper

Cause for Disciplining an Employee

irtually all collective bargaining agreements provide that employees can only be disciplined for “just cause,” yet very few actually define that term. Unlike civil law, arbitrators are not bound to apply the legal theories developed in preceding arbitration decision. This is very

different from civil courts, which apply a concept called stare decisis, a doctrine that states that courts should generally follow the legal precedent set in prior court decisions. Nevertheless, over the years arbitrators have established a sort of common-law definition of just cause based on the work of a very influential arbitrator named Carroll Daugherty. This definition uses seven criteria set forth below in the form of questions. This famous test for just cause, often called the “Enterprise Wire test” or just the “seven-part test for just cause,” was developed in Arbitrator Daugherty‟s decisions Grief Brothers Cooperage Corp., 42 L.A. 555, 557-69 (Daugherty, 1964) and Enterprise Wire Co., 46 L.A. 359 (Daugherty, 1966).

A “no” answer to one or more of these questions means that an arbitrator will likely find that the employer has not proven just cause for discipline – and remember that this burden always lies on the employer in disciplinary cases (as opposed to contract interpretation cases, where the union bears the burden of proof). In other words, a “no” answer means that the employer‟s disciplinary decision will likely be overturned as an abuse of managerial discretion warranting the arbitrator to substitute his or her judgment for that of the employer.

How the questions are answered depends on the evidence presented to the arbitrator at the hearing. These questions are not an exact and predictable test, but taken as a whole, they make up a fairly common-sense test of whether discipline will fly. Use these questions to train your managers – because you know the arbitrator will likely ask these questions later!

The Questions

Did the agency give the employee forewarning or foreknowledge of the probable disciplinary

consequences of the employee’s conduct?

Section

4

V

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Management most often gives forewarning or foreknowledge either orally (by telling the employee what will happen if the conduct continues) or in writing in the form of written directives, procedures, rules or agency policy manuals.

Ideally, you will have actual oral or written communication of the rules and penalties to the employee. Don‟t fall into the trap, however, of believing that you need a written rule for everything, or for the union‟s argument that in the absence of such a written rule, you cannot discipline. There is still a role for common sense – even in the public sector! And certain offenses, such as insubordination, coming to work intoxicated or drinking intoxicating beverages on the job, theft of the property of the agency or of fellow employees, verbal abuse of customers, or physical altercations on the job are so serious that any employee may properly be expected to know already that such conduct is offensive and punishable. And this is not an exclusive list.

Absent any contractual prohibition or restriction, the agency has the right unilaterally to promulgate reasonable rules and issue reasonable orders, generally without negotiating with the union, unless they modify wages, hours, or terms or conditions of employment.

Was the agency’s rule or managerial order reasonably related to the orderly, efficient, and safe

operation of the agency or department?

If an employee believes that the rule or order is unreasonable, the employee must nevertheless obey it. There is an accepted maxim of the workplace which is to “work now, grieve later.” An exception to that rule is that if obeying the rule or order would seriously and immediately jeopardize the employee‟s personal safety, or integrity, the employee can refuse the order. The employee may be subject to discipline for insubordination if the refusal to follow the rules or order was unreasonable.

Still, the employer must show that the rule or order bears a reasonable relation to the employer‟s operational needs. An employer policy that employees can only park blue cars in the city garage on Thursdays might be clearly promulgated and publicized, and the penalties may be equally clear, but no arbitrator is likely to find that the rule serves any legitimate agency purpose.

Did the agency, before administering discipline to an employee, make an effort to discover

whether the employee did in fact violate or disobey a rule or order of management?

The agency‟s investigation should be made before any disciplinary decision. The agency may not be excused from this investigation on the grounds that the employee will get his or her “day in court” through the grievance procedure after the imposition of discipline. In any event, public employers must as a constitutional matter offer a predisciplinary hearing and opportunity to respond under the US Supreme Court decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).

There may, of course, be circumstances under which management must react immediately to an employee‟s behavior. In such cases the normally proper action is to suspend the employee with pay pending the investigation, with the understanding that the final disciplinary decision will be made after the investigation.

Fundamentally, this test simply required that the employer made a genuine and open-minded effort to find out the truth. If the report of misconduct was anonymous, did the employer verify the accusation through more reliable sources? If the employee offers exculpatory information or witnesses, did the employer run down that information or just ignore it?

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Was the agency’s investigation conducted fairly and objectively?

Be careful not to assign the investigation to someone who can be accused of personal bias, and that the investigation looks complete and fair to an outsider. And make sure the investigator is someone who will make a good witness in later proceedings.

Was substantial evidence or proof found to support the discipline?

It is not required that the evidence be conclusive or “beyond a reasonable doubt,” which is the standard under criminal law in the United States. But the evidence must be substantial and not flimsy or slight. Generally, arbitrators apply the civil law burden of proof known as “preponderance of the evidence,” or more likely than not. Beware of arbitrators who insist on a higher burden of proof.

Has the employer applied its rules, orders, and penalties evenhandedly and without

discrimination to all employees?

If the rules have not been applied equitably, or if the same penalties were not meted out for the same offense, then the union will be able to show disparate discipline. When discrimination is shown, proving guilt is not enough – the discipline can still be overturned or modified. Make sure you find out how other, similar cases have been handled in the past! Even if the employee in question is “guilty,” if a supervisor‟s favorite committed the same acts with impunity, then your case is dead in the water.

If the agency has been lax in enforcing a rule and order and then decided to enforce it more strictly in the future, the agency may avoid a finding of discrimination by informing the employees in advance of its intent to enforce the rules as written.

Was the degree of discipline administered by the agency in a particular case reasonably

related to (a) the seriousness of the employee’s offense and (b) the employee’s record of

service with the agency?

The first branch of this test asks the simple question: Does the punishment fit the crime? It is the test of proportionality.

But not all employees are similarly situated. Just cause recognizes that an employee with a long disciplinary record is not in the same position as a veteran employee with no prior disciplinary action. Accordingly, the arbitrator will look not only at the seriousness of the offense standing on its own, but the employee‟s overall record and longevity. Even tardiness can result in a discharge if the employee has a long and progressive history of discipline for that kind of offense.

An employee‟s record of previous offenses generally may not be used to prove guilt of the immediate offense before the arbitrator. The proper use of prior offenses is to defend the severity of discipline once the employee has been proved guilty of the immediate offense.

Given the same offense for two or more employees, their respective employment records provide a proper basis for different administration of discipline. Thus, if employee A‟s record is significantly better than those of employees B, C, and D, the agency may impose a lighter punishment than exacted on the others. And an employee with only seven months of service may be more readily terminated than a 22-year veteran.

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Burden of Proof Checklist

□ Are the facts true?

Witness, information, documents

□ Does the work rule, or allegation, bear on the employment relationship?

This is the “nexus” argument, and assumes the facts are true.

□ Did you enforce the rule for all? Is the rule reasonable?

This is the “avoidance defense,”: employee not notified or lax enforcement

□ Is the penalty appropriate?

“The mitigation defense.” Assumes facts are true but raises employee‟s record.

□ Has there been harmful procedural errors?

Taints all evidence. This can be an “absolute defense” that negates the discipline.

In summary, remember these 5 concepts when you prepare your case:

Disputed Facts

Nexus

Avoidance Defense

Mitigation Defense

Procedural

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Submission Agreements and Stipulations

dispute may be submitted to arbitration under the dispute resolution provisions of the contract of labor agreement or under a separate submission agreement. The purpose of a submissions agreement is to define the scope of the matter before the Arbitrator and the

extent of the Arbitrator‟s authority. This can include such matters as evidentiary standards, rules of procedures, and the application of external law. Often, a contract or labor agreement covers these subjects, making a separate submission agreement unnecessary.

The parties should stipulate to the issue(s) to be decided and the relief sought. Absent such a stipulation, the parties may be able to state their separate views of the issues(s) to be decided, and stipulate that the Arbitrator will formulate the issue(s). However, some Arbitrators will not conduct a hearing under those circumstances, particularly where it is clear that the parties are deeply at odds regarding what the issue(s) should be.

It is far better to have an issue statement that you are a little unhappy with, but that succeeds in presenting the issue(s), rather than have each side propose separate issue statements and leave the Arbitrator to formulate the issue(s). The lack of a stipulated issue makes it difficult to rule on relevant objections and often leads to a longer and less focused hearing.

In formulating an issue to be submitted, it is often useful to use language drawn from the contract of labor agreement and the grievance. A simple way of doing this is, “Did the Employer violate Article __ of the Agreement (when it…); and if so, what is the remedy?” It is unwise to propose “loaded” issue statements that pre-judge the case. The Arbitrator is unlikely to frame it that way.

Often, evidence need not come in as testimony. It is more efficient to work out a stipulation of uncontested facts before the hearing. The purpose of stipulations is to avoid spending time on matters that are not in dispute. Make sure any stipulations are clear and unambiguous. Some arbitrators are more diligent than others at exploring ambiguities in stipulations.

Where the parties stipulate to the admissibility of a document, they should be careful to note whether it is to be admitted only for a limited purpose.

Practice Tip: Attempting to work out a stipulation of admissibility in advance saves you from learning at the hearing that you cannot authenticate an exhibit you thought would not be disputed.

Practice Tip: There is rarely any advantage to be gained from refusing to stipulate to a known fact or the admission of an exhibit that you know can be authenticated. Such a refusal may prompt your opponent to make a tighter case than would have occurred with a stipulation.

Section

5

A

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SAMPLE

In the Matter of the Arbitration

Between

Brown County

And

The Brown County Employee Association

Involving the ______________ of

___________________________________

Before Arbitrator

________________________________________

Submission Agreement

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Submission

Brown County, a County, (hereinafter called the “County”). And The Brown County Employee Association (hereinafter called the “Association”) in accordance with Article 7 of the Collective Bargaining Agreement between the parties effective August 6, 2006 (hereinafter called the “Agreement”), hereby agree that the sole issue to be arbitrated and the procedure to be followed in such arbitration are as follows:

I.

The provisions of Article 7 of the Agreement are incorporated herein and made a part hereof.

II.

The Issue

Did the County have just cause to __________________________________________________? If not, what shall the remedy be?

III.

Time and Place of Hearing

There will be a hearing on the issue before Arbitrator ______________________________ of ____________________ commencing at _____________A.M. on ___________________ until adjourned by the Arbitrator.

IV.

Representation

Each party shall be represented at the hearing by not more than two persons, who shall present the case of that party and who shall conduct all questioning and make all arguments for that party, and who shall have authority to enter into stipulations governing procedure, law and facts. Such representatives may be changed with the consent of the Arbitrator.

V.

Procedure

A. A written stipulation of all facts not in dispute may be submitted to the Arbitrator prior to the hearing.

B. The hearing will be informal without rules of evidence and without a transcript. However, the Arbitrator will satisfy him or herself that the evidence submitted is of a type on which he or she can rely, that the hearing is fair in all respects, and that all facts necessary to a fair settlement and reasonable obtainable are brought before the Arbitrator.

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C. The hearing shall be open to witnesses and to representatives of the County and Association.

D. All witnesses who testify at the hearing shall be sworn in.

E. The order of presentation at the hearing shall be, unless otherwise directed by the Arbitrator, as follows:

After preliminary matters, the County may make an opening statement and thereafter the Union may make an opening statement. The County shall then present its evidence, after which the Union shall present its evidence. At the close of the Association‟s evidence, the County may present rebuttal evidence, following which the Union may present rebuttal evidence. Each part may make a closing statement.

F. Each party may submit a brief written summary of the issues raised at the hearing and agreements supporting its position within five (5) working days after the hearing.

G. The Arbitrator will render his decision within five (5) working days after receiving the briefs. The Arbitrator will provide the parties a written statement of the reasons supporting the decision.

H. All witnesses may be cross-examined and may be re-examined by both parties.

I. Each exhibit introduced by a party shall be filed with the Arbitrator and copy shall be provided to the other party.

VI.

Notices

For the purposes of the proceedings, the persons to whom all papers and notices shall be sent are:

The Arbitrator: _____________________________________________

The County: _______________________________________________Attention of Director of Labor Relations Room 2N050 2600 Presidents Avenue Brownville, IA 52432

The Union: _______________________________________________ Brown County Employee Association 411 Airport Boulevard Brownville, IA 52432

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VII.

Decision of the Arbitrator

The decision of the Arbitrator will be final and binding on all parties, will not constitute a precedent for other case or grievances, and may not be cited or used as a precedent in other arbitration matters between the parties.

IN WITNESS WHEREOF, the parties to this arbitration proceeding have caused this Submission Agreement to be executed on this _______ day of ________________.

Brown County

By _________________________________

Brown County Employee Association

By _________________________________

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Selection of Arbitrator

Process

Procedures:

Memorandum of Agreement

Example Labor Contract Language

The arbitrator shall be selected by mutual agreement between the Labor Relations Office and the Association. If the parties are unable to agree on the selection of an arbitrator, they shall jointly request the State Mediation and Conciliation Service to submit a list of seven qualified arbitrators. The parties shall then alternatively strike names from the list until only one name remains, and that person shall serve as arbitrator.

American Arbitration Association (AAA) AAA list of proposed arbitrators Parties cross off unacceptable names and prioritize remaining names Or may alternate in striking names from list Lists and/or priority is returned to AAA If parties are unable to agree, AAA will appoint AAA facilitates and administers Code of Professional Responsibility for Arbitrators of Labor-management Disputes

State Arbitration Act for your state.

The United States Arbitration Act.

List of Proposed Arbitrators:

Resources:

State Mediation Conciliation Service Federal Mediation and Conciliation Service

Section

6

25

AAA Striking Order of Arbitrators Can determine who strikes first by rotation, flipping a coin, draw straws, etc. Alternate in striking names from list until one remains.

Use of the Arbitration Panel

Agency panel

Parties can jointly develop an arbitration panel to include mutual and independent selections. Selections can thereafter be by rotation down a list.

Panel can be trained and oriented to agency‟s policies, procedures and MOAs prior to hearing cases. May be scheduled to hear cases on a regular basis.

Court Reporter or Tape Recording

Evaluation

Considerations:

Background – education & work experience

Arbitration experience – types of cases, industries, decisions

Technical or specific experience required for issue

Fees and expenses including travel

Resources:

NPELRA‟s Arbitrator Biographies/Decision

Arbitrator‟s Qualification Report (AQR) by R.C. Simpson

American Arbitration Association (AAA)

State mediation and Conciliation Service

Federal mediation Conciliation Service (FMCS)

Labor Arbitration Reports (BNA) ­ Arbitration decisions ­ Table of cases ­ Directory of arbitrators

Summary of Labor Arbitration Awards (AAA)

CPER Arbitration Reports

Cross-checking with other agencies.

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Logistics

Scheduling Hearing

Single vs. multiple days

Coordination of calendars for advocates and witnesses

Rooms

Hearing room large enough to accommodate advocates and witnesses and is away from noise and other distractions.

Caucus rooms for each party that are private and with a large table for spreading out documents and exhibits.

Availability of FAX.

Appropriate audio-visual equipment; e.g., VCR, television, easel boards, etc.

Location

On-site agency or union or other neutral location. Consider cost issues, convenience, and food availability, for example.

Initial Case Preparation

Develop the Facts

Review the original statement of the appeal and any modifications.

Review the proposed and final order of discipline and note any changes.

Review all Skelly, or pre-disciplinary conference documentation and correspondence.

Review all relevant documents that are available. These may include personnel documentation, investigative reports, agency and/or department policies and procedures, etc.

Interview all witnesses on your side.

Consider whether you want to try to interview appellant witnesses. If you do, must be done carefully with assurances against reprisal.

Agency policies or Civil Service Rules may require, as part of the pre-removal safeguards, that the appellant have an opportunity to examine any materials upon which disciplinary action is based. Appellants or their representatives shall also have the right to inspect any documents in possession or under control of the appointing authority which are relevant to their appeal.

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Develop the Law

Research case decisions to see how other hearing officers have decided similar cases and what facts were important to them. Also, review decisions from the hearing officer that has been assigned to the hearing to better understand how he/she decides cases and what rationale was used.

Review similar cases which have been decided by arbitrators. Some resources to consider are:

How Arbitration Works, Elkouri & Elkouri

Bureau of National Affairs (BNA) Practice and Procedure in Labor Arbitration Evidence in Arbitration Just Cause: The Seven Tests Grievance Guide Employee Discipline: Policies and Procedures

Develop a theory for Your Case

Your theory is essentially the reasons why the arbitrator should provide you a favorable decision on the facts. It is developed from facts and is the rationale for actions taken. It is also a first step in framing arguments. Your arguments represent a fusing of the facts and theory to support a conclusion. Once completed, it will provide direction for the case development and a framework for the opening statement.

Line up arguments that support your case.

Determine what facts are needed to support each argument.

Decide documents, if any, that would help summarize your position.

Determine what witnesses you need to present evidence.

Develop Theory of Union’s Case

Line up arguments in appellant‟s favor and decide how you would support those arguments with facts if you were in appellant‟s position.

Once you have determined what the appellant‟s theory is likely to be, decide what evidence and witnesses you need to refute that theory.

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Final Case Preparation

Witnesses

Decide what witnesses you need to present the case. Usually, the fewer witnesses you call, the better.

Prepare your witnesses:

­ Should never put on a witness you haven‟t prepared. ­ Should never ask your witness any questions to which you don‟t know the answers.

Exhibits

Assemble all documents and papers you will need for exhibits at the hearing.

Consider organizing your exhibits into three categories:

­ Exhibits you intend to use ­ Exhibits you may use as back-up if the need arises ­ Joint exhibits that have been discussed and agreed upon with the appellant and/or their

representative

Usually 4-5 copies of each are necessary so that all parties have a copy including the hearing officer, the appellant, your witness and yourself.

Use the attached “exhibit list” form.

Subpoena

The arbitrator has the power to issue subpoenas and subpoena duces tecum (a summons to produce some document or piece of evidence), and to compensate persons subpoenaed.

­ Non-County employees receive $12 per day and $0.20 per mile one way. ­ Such fees are paid by the party requesting the subpoena.

Any witness whose testimony you need and whose cooperation may be in question, should be subpoenaed. Third party witnesses or an agency calling a bargaining unit employee to testify, typically are under the jurisdiction of a subpoena.

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Prepare Opening Statement

Consider setting up a file at the beginning of your case preparation for your opening statement. This file can be used throughout your preparations for notes of your key points that you would like to include.

­ Prepare final draft of your opening statement at the end of your case preparation when you are most familiar with the case facts.

Outline Oral Closing Argument

If you anticipate doing an oral closing argument, it is helpful to draft an outline prior to the hearing. The outline should be triple spaced to allow for any changes or revisions that are necessary after the hearing.

Initial Case Preparation

It is critical that you interview and prepare all prospective witnesses as soon as possible as you will prove your case with your witnesses. During your preparations, you need to evaluate each witness‟s testimony for final selection and sequencing.

Order of Testimony

When determining the order of testimony, try to begin and end your case on a strong point. Consider:

­ Chronological order ­ Overview of case ­ Strongest factual points ­ Dramatic or emotional testimony ­ Most unimpeachable testimony ­ Most substantive legal aspects of the case

Describe Arbitration Setting

Room arrangement

Seating for arbitrator, advocates, witness and audience

Caucus rooms

Informal

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Arbitration Procedures

Preliminary Issues:

­ Submission agreement and framing of issues ­ Joint stipulations/exhibits

Hearing:

Opening statement made by both parties. It is important to listen closely to the union‟s opening statement so that you know what their position is on the various issues involved in the arbitration.

Sequence for each witness:

1. Direct examination by the initiating party 2. Cross-examination by the responding party, if necessary. 3. Re-direct examination and re-cross examination, if necessary 4. Direct examination by the responding party 5. Cross-examination by the initiating party, if necessary 6. Re-direct examination and re-cross examination, if necessary 7. Rebuttal witnesses, direct and cross-examination, if necessary

Summation and oral closing arguments are made by the parties or they may choose to brief their arguments. If briefs will be written, the parties will agree to a briefing schedule that includes appropriate time for receiving the hearing transcripts or audio tapes. Generally, briefs are due 30 days after the receipt of the transcript or audio tapes and, if reply briefs are used, they are due 15 days after receipt of the direct briefs.

Describe the intended order of testimony and possible union witnesses.

Explain to each witness what you intend to prove with their testimony and how their segment fits in with your entire case.

Witness Practice Sessions

Conduct practice sessions with each witness using direct examination questions. Develop the facts in chronological order.

Conduct practice sessions with each witness using probable cross examination questions. Do this aggressively and vigorously like an opposing advocate.

Instruct each witness on the use of objections.

Evaluate the practice testimony of each witness so you know how they will testify.

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Hold additional practice sessions with weaker witnesses to bolster their confidence and reliability.

Review all relevant documents and exhibits.

Inform each witness of the date, time and place of hearing as soon as possible.

How Witnesses can Assist with Case Presentation

When your testimony is complete, step off of the stand and return to the seating area behind your advocate. Continue to listen to the remainder of the testimony from our witnesses and those testifying for the union. If you feel we have missed something, identified inconsistencies or wish to make a comment, please write a note and pass it to the advocate‟s assistant or the advocate.

Reorganization of Case Presentation

Periodically during the proceeding we will take breaks and may meet in caucus room. During these discussions, the tentative schedule of witnesses may be changed. It is not uncommon to reorganize after hearing the union‟s opening statement or cross-examination of our witnesses. You may be asked to provide additional testimony or less testimony than previously anticipated.

Rebuttal witnesses may be reserved for certain testimony depending on the testimony of union witnesses. In some cases, these witnesses may be off-site and not at the hearing location until called.

Common Case Theories

Agency Theories:

We had a long standing rule which the union does not contest as reasonable.

The rule serves an important purpose and we will describe what the purpose of the rule is.

The employee was repeatedly counseled, warned, suspended, and received other information so that he understood what was expected of him and in what way he failed to comply with the rules.

Discussion of the specific case facts and what we anticipate the grievant will state as extenuating circumstances excusing his conduct.

Union Theories:

Lack of progressive discipline.

Failure to warn or otherwise place on notice.

Inconsistent treatment.

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Failure to properly investigate.

Ulterior motives: personal vendetta, avoidance of benefits, discrimination, motivation was punitive rather than corrective, inconsistent application of a rule, substance abuse, medical condition excusing conduct.

Checklist for Testifying as a Witness

Tell the Truth

As a witness, it is your absolute duty to tell the truth to the best of your ability. Do that and you will be confident and be more comfortable with your testimony. It will also be extremely difficult, if not impossible, for the opposing advocate to cross-examine you effectively.

Be Serious at All Times

Avoid laughing and talking about the case in the hearing room, halls, restrooms or any public place.

Avoid Conversations with Opposing Witnesses, Opposing Advocates or the Hearing

Officer

As a witness, you have one purpose and that is to testify, under oath, in the witness chair, in reply to questions put to you from the advocates. While you should be polite and return greetings and salutations, you should do your talking from the witness chair.

Talk to the Hearing Officer

While it is important to direct your attention to the person asking the question, look at the hearing officer as much as possible when responding to questions. Speak clearly and loudly enough so that everyone can hear you more easily including the microphone if the testimony is being recorded.

Listen Carefully to Each Question

Be sure you understand a question before you attempt to answer it. If you do not completely understand the question asked, you should so state and ask that it be repeated or rephrased.

Pause Briefly Before Answering Each Question

Gather your thoughts carefully before answering and do not permit yourself to be hurried. Do not offer a snap answer without thinking. However, the response should not be unnecessarily delayed.

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Give Terse Replies

Never volunteer information. If a question can be answered comprehensively by yes or no, that is the best answer. Do not attempt to explain your answer. If the advocates or the hearing officer want an explanation, you may be sure that they will ask.

You Need Not Answer Yes or No Unless the Hearing Officer Rules That You Must

If you cannot agree to 100% of the phrasing of a question, attempt to take the substance of the question and respond in your own words. Where an advocate demands that a question be answered yes or no, and you feel that is impossible or misleading o give such an answer, you should so state. Your advocate will ask the hearing officer to rule on whether a yes or no answer must be given. If the hearing officer rules that a yes or no answer must be given, your advocate can later give you an opportunity to explain your answer.

General Questions

Many questions will be plausible on their face.

Example 1: Isn’t it a common practice to ignore a few tardies?

Answer: Not necessarily or depends on the circumstances.

Example 2: Isn’t it true that in every case a person is suspended for one day?

Answer: Not necessarily, it depends on the specific facts and circumstances.

Paraphrasing Questions

Be particularly careful of questions which paraphrase your testimony. Listen to the words used and ask yourself the following questions: Is that exactly what I said? If not, say it in your own words again. Do not permit the opposing advocate to put words in your mouth.

Anything Else Questions

In responding to “anything else” questions, when you have exhausted your recollection, rather than saying there is nothing else, it is appropriate to say “not that I can recall at this time.” This response gives you an opportunity to reflect after you have left the stand and if you omitted something from your description of the events, you can be returned to the stand to add any additional factors you may have overlooked.

Tough Questions

Do not avoid answering tough or difficult questions. Evasions may lead a hearing officer to question the credibility of your testimony or he/she might assume that you have something to hide. Your response should state the facts succinctly.

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Do Not Be Afraid to Say You Do Not Remember

The only truthful answer you can give when asked for information you do not remember is to so state. Everyone at times forgets something and witnesses are no exception. You may not like to admit that you don‟t remember since you may be afraid you‟ll appear foolish, but you will appear much more foolish if you attempt to testify to facts you do not really recall and are later tripped up.

Do Not Be Afraid to Say You Do Not Know

Advocates seek an infinite amount of knowledge from witnesses and most witnesses‟ knowledge is finite. Again, the only truthful answer to a question requiring information you do not have is that you do not know.

Do Not Argue with an Advocate or Be Flippant

When you are being examined as a witness, you are playing the advocate‟s game in his/her backyard. Any attempt to argue with the advocate or give flippant answers will only destroy your value as a witness.

Never Lose Your Temper

This may be difficult to do at times as you may be badgered. However, this is a technique of cross-examination and it is usually the intent of the advocate who badgers you that you lose your temper. If you are angry, you might say much more than if you are calm. When you lose your temper, you have given in to the advocate who is examining you.

Objections

If one of the advocates makes an objection to a question or your answer, stop and wait for the hearing officer to make a ruling.

Do Not Memorize Your Testimony

Most recitations are obviously just that. Tell the facts as you know them and in a manner intelligible to those who have no knowledge whatsoever of the case.

You Have Talked with Your Advocate

There is no secret about the fact that you have talked with your advocate prior to the hearing. It is fine to say that you have discussed the case and that you were asked what the facts were.

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Questions

Questioning of Witnesses

Establish the witness‟s:

­ Identity and, if necessary, his/her special competence. ­ Employment position with the agency or union ­ Relationship to the case. ­ Length of employment, if relevant.

Bring the witness to the facts as quickly as possible.

Ask the witness what happened, where it happened, when it happened

Anticipate by your direct questions some doubts that may be raised in cross-examination.

Consider re-examining the witness after cross-examination to clarify or answer questions.

Ask the witness only about what is needed.

Ask the witness about only those matters that the witness has seen, heard or knows.

Do not testify for the witness.

Do not ask all of your questions as if they were private exchanges between you and the witness. Vary your line of inquiry. Occasionally, preface your questions in order to draw attention.

Emphasize those features of your case that you feel are important.

Framing Questions

Ask only one question at a time. Compound questions are difficult to understand and answer. The answers to compound questions are likely to be incomplete, ambiguous and misleading.

Make the question brief. Both the witness and the arbitrator must remember all of the questions in order

State the question using simple words. The witness and the arbitrator should be able to understand both the question and the answer.

Make the question clear. Remember the arbitrator is less familiar with the facts and circumstances of the grievance than either you or the witness.

Occasionally repeat key phrases.

Avoid the use of negatives in questions. Suppose you ask, “You do not know whether Smith was there?” The witness answers, “Yes.” Did the witness mean, “Yes, I know,” or did he/she mean, “Yes, Smith was there?”

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Grievance Arbitration Checklist

Pre-Hearing Yes No

Pre-Arbitration

Agreement to arbitrate:

Written copy of grievance

Definition of grievance. Is it arbitrable?

Timeliness

Proper parties

Exhaustion of contractual preconditions

Agreement to arbitrate

Preparation

Read the contract in its entirety

Identify all relevant provisions of the MOA & determine burden of proof

Obtain all written background data:

The grievance

All written communications concerning grievances

All written statements

Physical evidence

Documentary evidence

Personnel files

Prior arbitration awards

Prior grievances

Charges or complaints filed in other proceedings

Prior collective bargaining agreements

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Negotiation notes and minutes

Interview witnesses

Obtain written statements concerning grievance

Obtain information concerning other party‟s position and

admissions during each grievance procedure step.

Obtain information concerning past practices

Visit the worksite

Contact adversary regarding submission, joint exhibits, stipulations

Prepare subpoenas

Arrange for transcript

Select the Arbitrator and Determine Date and Place of Hearing

Voluntary agreement

Permanent panel by contract

Use of external agencies

Hearing

Present submission agreement

Present joint exhibits

Stipulations of fact make motions for dismissal due to lack of

procedural/substantive arbitrability

Make opening statement

Present witnesses

Make closing statement

Agree on post hearing briefs schedule

Order transcript or copy of audio tapes

Post-Hearing

Move to confirm, modify or vacate award

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Complaint

Order to show cause

Final order

Follow-up on payment of arbitrator, reporter and room charges

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Case Preparation Outline

Forms Overview:

Cover sheet

Case theory

Specification of arguments

­ Agency‟s arguments & Union‟s response

­ Union‟s arguments & Agency‟s response

Evidence needed

­ Witnesses

­ Documents

­ Other evidence

Sequential order of evidence

Assuring availability of witnesses, exhibits and proofs for hearing.

Stipulations

­ Joint Exhibits

­ Undisputed facts

­ Case properly before arbitrator

Motions

­ Sequestering of witnesses

­ Production of witnesses or documents

Opening statements

Agency witness

­ Intend to prove

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­ Facts to be established

­ Cross-exam

­ Re-direct

Union witness

­ Intend to prove

­ Facts to be established

­ Questions and responses

­ Cross-exam

­ Re-direct

Closing argument

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Case

Preparation Outline

Case Number

Grievant

Issue

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Notes Case Theory or Rationale

(Drawn From Facts)

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Notes Specification of Arguments

(Fusing the facts and theory to support the conclusion)

Agency’s Argument Union’s Response

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Notes Sequential Order of

Presenting Evidence

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Notes Assuring Availability of

Witnesses, Exhibits and

Proofs for Hearing

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Notes Stipulations

Joint Exhibits:

Undisputed Facts:

Case Property Before The Arbitrators:

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Notes Motions

Sequestering of Witnesses:

Production of Witnesses or Documents:

Other:

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Opening Statements – Preparation Notes

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Agency Witnesses

Name:

Intend to Prove:

Facts to be Established Questions Answers/Notations for Follow-up

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Agency Witnesses

Name:

Planned or Probable Questions Answers/Notations for Follow-up Areas of Cross Examination

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Union Witnesses

Name:

Intend to Prove:

Facts to be Established Questions Answers/Notations for Follow-up

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Union Witnesses

Name:

Planned or Probable Questions Answers/Notations for Follow-up Areas of Cross Examination

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Closing Statements – Preparation Notes

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Evidence in Arbitration

Placing Exhibits into Evidence

Exhibits are provided to the opposing party, and then to the Arbitrator(s)

­ Copies should also be provided for the court stenographer

Questioning Your Witness

Ask questions to demonstrate the credibility and knowledge of your witnesses.

­ Avoid opinions, hearsay and speculation.

­ Ask question in a proper form.

­ The question is compound.

­ The question calls for speculation.

­ The question is unintelligible or ambiguous.

­ The witness‟s answer is not responsive to the question.

­ The question misquotes the witness.

­ A sufficient foundation has not been laid showing that the witness has personal knowledge about these facts.

During the other party‟s cross examination of your witness, assist your witness by objecting.

­ Signal your witness (Question asked and answered / unintelligible.)

­ Disrupt the flow of the other party‟s case. (Lack of Foundation.)

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­ Protect your witness (Badgering the witness /misquotes the witness / ambiguous question.)

During the other party‟s cross examination of your witness, learn where the questions are heading by objecting.

­ Question seeks irrelevant information.

Handling Opposition Witnesses

Cross-Examination: Ask questions demonstrating the lack of credibility and knowledge of opposition witnesses.

­ Use headlines.

­ Use a story line.

­ Frame the story.

­ Use logical relationships.

­ Ask a series and laundry list questions.

­ Focus on prior inconsistent actions and statements (include impeachment by omission).

­ Validate first and confront second.

­ Ask leading questions.

­ Avoid asking one question too many.

­ Never ask “why.”

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Evidentiary Standards in Arbitration

What is the Evidentiary Standard in Arbitration?

Strict compliance with formal rules of evidence is not mandatory in arbitration. “It is widely agreed that unless expressly required by the parties in submitting their case to an arbitrator, strict observance of legal rules of evidence is not necessary. As stated by one federal court:

“In an arbitration the parties have submitted the matter to persons whose judgments they trust, and it is for the arbitrator to determine the weight and credibility of evidence presented to them without restrictions as to the rules of admissibility which would apply in court.”

(Elkouri & Elkouri, How Arbitration Works (4th Ed. 1985), p. 296)

What Type of Evidence is Allowed in Arbitration?

Arbitrators are usually very liberal in that they will accept evidence if a party believes the evidence will strengthen and clarify their case. In discharge or discipline cases, parties usually offer evidence through witness testimony. Witnesses testify to the facts that led to the disciplinary actions. On the other hand, in contract interpretation cases, witnesses testify to the pre-contract negotiations history and the parties‟ past practice in applying the disputed provision.

Arbitrators allow the parties to introduce both direct and circumstantial evidence. Direct evidence directly proves a fact. For example, a document is direct evidence. Similarly, a witness‟s testimony that “I did...” OR “I saw…” is direct evidence. In contract, circumstantial evidence raises an inference that a fact occurred. Circumstantial evidence is admissible if it tends to prove or disprove the matter in issue. The arbitrator has discretion about the weight give to circumstantial evidence.

Do Exclusionary Rules Apply in Arbitration?

Exclusionary rules (e.g. hearsay) generally do not preclude a party from introducing evidence in an arbitration hearing. However, exclusionary rules may preclude an arbitrator from giving much weight to evidence going to the key issue. For example, hearsay is generally allowed in arbitration to corroborate other evidence. However, hearsay is not allowed to prove an essential element in the case. If, for example, in a dismissal hearing, hearsay evidence is the only proof a party offers that the employee received notice of his poor performance, the arbitrator will give little weight to the evidence.

Do Privileges Apply in Arbitration?

Privileges apply in arbitration and operate to exclude evidence even if the evidence has probative value. While privileges may vary from state to state, most follow federal law at noted:

Lawyer-client privilege

Physician-patient privilege

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Psychotherapist-patient privilege

Confidential martial communications

Communications to clergy

Political vote

Trade secret

Secrets of state and other official information

Identity of the informer

State statues vary and may include one or more of the following:

Choice of defendant in criminal case not to testify

Privilege against self-incrimination

Domestic violence victim-counselor privilege

Note: For arbitration purposes, there are really only three privileges you need to know: lawyer-client privilege (and related concept of attorney-work product), the physician-patient and psychotherapist-patient privileges.

What is Not Privileged?

Union and employer communications or intra-union conversations or intra-employer conversations

Evidence concerning grievance discussions, other than offers of settlement or compromise, is not privileged unless the parties have expressly agreed upon otherwise

Practical Rules for Objecting

How Important are Objections in Arbitration?

In a court trial, rules of evidence are strictly followed, and timely and appropriate objections are essential to preclude the jury from hearing inadmissible evidence. On the other hand, in arbitration, the arbitrator will most likely hear the evidence, if only to rule it inadmissible. The importance of objecting in arbitration is to establish an accurate factual record.

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Why Should I Object?

Rules of evidence are relaxed in an arbitration proceeding, so why is it necessary to make evidentiary objections? Raising objections during an arbitration hearing serves several purposes:

Objections are used to establish an accurate factual record. Objections, if correctly used, can exclude information, prevent prejudice and redirect the form or manner of the questioning.

Objections are also used for strategic purposes. Objections may be used to assist your witness. You can signal your witness with well-placed objections. For example, the objection that a question has already been asked and answered can alert your witness to be careful and remember what he/she said the first time. Do not overuse these objections. Arbitrators know why you object and may not look favorably on constant witness prompts. In addition, you must prepare your witness about your signals before the hearing.

Objections may also be used to disrupt the flow of the other party‟s case. You may confuse your opponent by asking him to lay a foundation for evidence. However, numerous objections can disrupt the hearing flow and anger the arbitrator.

Objections may be used to find out where the other party is going with a line of questioning. For example, if the other party asks your witness a question you believe is irrelevant, and you object to the question, your opponent may explain why he is asking the question. This is especially effective during cross-examination.

How do I Respond to Objections?

Objections often relate to the form of a question, e.g., the question is ambiguous, compound, leading, calls for speculation, or misquotes the witness. In response to these questions, the best approach is usually to reformulate your question.

In addition, objections may point to a lack of proper foundation evidence, e.g., a witness is not qualified or the question assumes facts not in evidence. To respond to these objections, lay a proper foundation or make an offer of proof.

How do I Make an Offer of Proof?

Sometimes the relevance of a piece of evidence is not readily apparent, e.g., because it relates to other evidence you need to produce later through a different witness. If so, you can make an “offer of proof.” To make an offer of proof, tell the arbitrator what the evidence shows, how it relates to the later evidence, and offer to tie the evidence together later, In effect, you are asking the arbitrator to admit it into evidence conditionally until later when you can establish its admissibility. If you do this, make certain to tie together the evidence before the arbitration concludes.

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CAVEATS:

Do not abuse objections. You may upset the arbitrator.

Do not substitute objections for thorough witness preparation.

The Most Common Objections Used in Arbitration

Objections to Offered Evidence

1. IRRELEVANT OR IMMATERIAL: “Relevant evidence” means evidence having a tendency to prove or disprove any disputed fact that is, or consequence to the case‟s determination. Because rules of admissibility are relaxed in arbitration, this objection is not very useful. However, you may use this objection to point out to the arbitrator that he or she should give the evidence little weight or to alert your witness to pay attention to the question.

“Objection, Ms. Arbitrator. The question calls for an answer that is irrelevant.”

2. HEARSAY: Hearsay evidence is testimony given by a witness who relates not what he knows personally, but what has been reported to him by another and which is offered for the purpose of establishing the truth of what has been reported to him. “He/She/I said…” are hearsay signals. Arbitrators generally admit hearsay evidence, but they give uncorroborated hearsay evidence little or no weight.

“Objection, Ms. Arbitrator. The question calls for hearsay.”

3. INADMISSIBLE OPINION: Arbitrators generally admit opinion evidence (evidence of what a witness thinks, believes, or infers about the facts in dispute) if it would be admitted in a court of law (e.g., expert testimony). An authorized and qualified witness may testify about the reasons he or she believed the contract should be applied in a certain manner. In addition, the arbitrator, at his or her discretion, may admit opinion testimony from a knowledgeable person if the testimony will help the arbitrator.

Lay Witness: “Objection, Ms. Arbitrator. The question calls for inadmissible opinion.”

Expert Witness: (1) “Objection Mr. Arbitrator. A sufficient foundation has not been laid showing that the witness is qualified as an expert to render such an opinion.”

(2) “Objection, Mr. Arbitrator. This is not a proper subject matter for expert testimony.

4. LACKS PROPER FOUNDATION: This objection seeks to exclude or damage the witness‟s testimony because the examine5r has not shown what the witness knows about a preliminary fact. For example, before the examiner questions a witness about a photograph, he or she should ask the witness introductory questions that demonstrate the witness is

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familiar with the scene depicted. The arbitrator will usually give the other side a chance to lay the necessary foundational information:

“Objection Ms. Arbitrator. A sufficient foundation has not been laid showing [state required preliminary fact, e.g., that the witness has personal knowledge of the matter.]”

5. NOT THE BEST EVIDENCE: The best evidence of a document‟s contents is the document itself. If there is genuine question s to the authenticity of the original document, the arbitrator may ask a party to produce the original or explain why the original is unavailable.

“Objection, Mr. Arbitrator. This is not the best evidence of the contents of [describe the writing].”

6. INADMISSIBLE PAROL EVIDENCE: The parol evidence rule prohibits the introduction of extrinsic evidence (oral or written) of prior or contemporaneous agreements to vary the terms of an integrated agreement. The parol evidence is offered to explain the meaning of a provision in the agreement. Parol evidence is not admissible is the contract language is clear and unambiguous. Parol evidence is admissible if the language in question is ambiguous. The arbitrator decided whether or not the disputed words are ambiguous and may receive evidence on that question.

“Objection, Ms. Arbitrator. The contract language is clear. Parol evidence is therefore not admissible.”

7. INCOMPETENT: This objection seeks to disqualify a witness as incompetent to testify. This objection is most often raised because the witness either cannot express himself or the witness has no personal knowledge of the matter.

“Objection, Mr. Arbitrator. The witness is not competent to testify [describe reason].”

8. CUMULATIVE/REPETITIVE: Repeats the substance of evidence already introduced.

“Objection, Mr. Arbitrator. The proposed evidence is cumulative. It merely repeats [describe].

Objections to the Form of the Question

1. COMPOUND: The question joins two or more questions with the disjunctive “or” or the conjunctive “and.” A witness is not required to answer more than one question at a time.

“Objection, Mr. Arbitrator. The question is compound.”

2. ASKED AND ANSWERED: The examiner already asked the witness a similar question. This is useful to alert your witness that she has already answered the question. Do not overuse this objection. Arbitrators understand why it is used and may not like it. In addition, during cross-examination the opposing party has great latitude to probe the witness‟s memory.

“Objection, Mr. Arbitrator. The question has already been answered by this witness.”

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3. CALLS FOR SPECULATION: The question invites the witness to speculate. Speculation goes beyond proper lay opinion, which must be based on what the witness him or herself perceived. This is another “signal” to your witness that your opponent has asked him or her to guess or hypothecate.

“Objection, Mr. Arbitrator. The question asks the witness to speculate.”

4. LEADING: The question suggests to the witness the answer to the question. Use only during your opponent‟s direct exam of his or her witness. Watch for questions that the witness can only answer “yes” or “no” or that call for the witness‟s agreement to what the questioner said. REMEMBER: Leading during cross-examination is not only proper but recommended.

“Objection, Ms. Arbitrator. The question is leading.”

5. UNINTELLIGIBLE OR AMBIGUOUS QUESTION: The question cannot be understood, or, in the context in which it is posed, may be misunderstood by the witness. Witnesses are required to answer only questions they understand and that are clear. This objection can alert your witness to “pay attention,” and also inform the arbitrator the question has other possible meanings.

“Objection, Mr. Arbitrator. The question is ambiguous, in that [state the reason].”

or

“Objection, Ms. Arbitrator. The question is unintelligible.”

6. ARGUMENTATIVE OR BADGERING THE WITNESS: The question is asked to: (1) persuade the arbitrator rather than elicit information; (2) argue with the witness; or (3) ask the witness to agree with the examiner‟s inferences. Cross-examination has limits. If your witness has clearly answered a question and the other side continues on a subject in order to argue with the witness, you should object.

“Objection, Mr. Arbitrator. The question is argumentative.”

or

“Objection, Mr. Arbitrator. Opposing party is badgering the witness.”

7. MISQUOTES THE WITNESS: The question misquotes or incorrectly characterizes prior testimony. This objection alerts the arbitrator that the facts are different than how your opponent characterized them.

“Objection, Ms. Arbitrator. Opposing party is misquoting the witness.”

8. ASSUMES FACTS NOT IN DISPUTE OR EVIDENCE: The question asserts or assumes that a fact in dispute has been proved; or the question asserts or assumes a fact for which no evidence has been introduced. This objection alerts the arbitrator that there is no foundation for the testimony.

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“Objection, Mr. Arbitrator. The question assumes facts [in dispute/not in evidence].”

9. THE DOCUMENT SPEAKS FOR ITSELF: Sometimes the other side may try to get your witness to agree that something in a document means something about which you disagree. If the document is clear on its face, this objection asks the arbitrator to read it for his or herself.

“Objection, Ms. Arbitrator. The document speaks for itself because it is clear on its face.”

10. ANSWER IS NOT RESPONSIVE TO THE QUESTION: This is one of the few objections you should make as you question a witness. Use this objection when you cross-examine your opponent‟s witness or as you directly examine a hostile witness. This objection alerts the arbitrator that the witness is being evasive.

“Objection, Mr. Arbitrator. The witness’s answer is not responsive to the question.”

How to Place Exhibits in Evidence

xhibits can be admitted in evidence only when a sequence of procedural steps has been followed. Many times you will have more than one witness who is competent to qualify and authenticate an exhibit for admission in evidence. You should ordinarily select the witness

who has the most knowledge of the exhibit and makes the best impression on the arbitrator. Keep in mind that some exhibits may need more than one witness to establish a proper foundation. In such cases, do not offer the exhibit in evidence until the last necessary witness has testified.

The steps for getting into evidence are as follows:

1. Have the exhibit or document marked for identification only, until admitted.

2. Show the exhibit to opposing party.

3. Approach the witness and show the exhibit to the witness.

4. Lay foundation for the exhibit.

Qualify the witness as competent – having firsthand knowledge of the exhibit and can authenticate it.

Have the witness authenticate and prove that the exhibit is what it purports to be.

Have witness testify as to the relevancy of exhibit to the issues at hand.

5. Move for admission of the exhibit into evidence.

6. Be sure to keep a list of all exhibits which are admitted into evidence.

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Because exhibits are usually dramatic and persuasive, always consider using them when it can be done effectively. Examine the exhibits carefully to see if conflicts appear between the exhibits themselves or the exhibits and your witnesses. Review the exhibits to determine if there is anything that the other party can use to support its positions. Use exhibits to complement and enhance the testimony of a witness, rather than compete with it.

Effective Cross Examination

1. Don‟t irritate the arbitrator/ALJ

2. Keep the organization simple

3. Use headlines

4. Use the story line method

5. Use logical relationships

6. Control the witness

7. Impeach / credibility

8. Ask series questions

9. Ask laundry list questions

10. Be polite

11. Break the rules… maybe

12. Validate first; confront second

13. Force the witness to lock in facts

14. Save points for written briefs

Evaluating the Credibility of Witnesses

he technical rules of evidence applicable in federal and state courts do not apply in arbitration cases. But some of the general credibility guidelines are used by arbitrators and administrative law judges to evaluate the credibility of witnesses. A non-exclusive list of those factors is set forth below. You may want to check your own state‟s civil rules of procedure for standards that arbitrators in your state may give special weight to.

Some of the factors courts often consider – and your arbitrator may as well – include:

1. The witness‟s demeanor while testifying and the manner in which he or she testifies.

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2. The character of the testimony.

3. The extent of the witness‟s capacity to perceive, to recollect, or to communicate any matter about which he or she testifies.

4. The extent of the witness‟s opportunity to perceive any matter about which he or she testifies.

5. The witness‟s character for honesty or veracity – or lack thereof.

6. The consistency or lack of consistency in the witness‟s story.

7. Corroboration or contradiction from other witnesses in a position to know the facts.

8. The existence or nonexistence of a bias, interest, or other motive.

9. A statement previously made by him, the witness, that is consistent or inconsistent with the testimony at the hearing.

10. The existence or nonexistence of any fact testified to by the witness.

11. The witness‟s attitude toward the action in which he or she testifies or toward the giving of testimony.

12. The witness‟s admission of untruthfulness.

Leading Questions

The witness, grievant‟s co-worker, has testified that grievant cleaned up an oil spill before 8:00 AM on the day in question. You know from the witness‟s time card that he did not punch in until 8:02 AM. Here is the cross-examination:

Q: You testified on direct, didn‟t you, that grievant cleaned the oil spill before 8:00 AM. A: That‟s right. Q: But you didn‟t punch in that day until 8:02 AM, correct? A: Correct. Q: So you didn‟t actually see grievant do that work before 8:00 AM, did you? A: No, I didn‟t. Q: So you really have no personal knowledge about grievant‟s claim do you? A: No, I don‟t.

If, at any point in that cross-examination, the witness had claimed personal knowledge; you could confront him with the time card to undercut his credibility. As the cross-examination unfolded, you have undercut the authority of his testimony on direct and should move on to other productive questions.

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By asking leading questions, you limit the witness‟s opportunity to volunteer potentially damaging information. Having accomplished that purpose, do not open the door by allowing explanation of earlier testimony that you cannot control.

One Question Too Many

Our cross-examiner, who has just secured the witness‟s admission of no personal knowledge, completely loses the advantage of that concession by asking an additional, unnecessary question:

Q: So how could you have testified with such certainty that grievant did the work?

A: Because our supervisor told me later that he had come in at 7:30 AM and saw grievant cleaning up the spill.

Prior Inconsistent Action

Here is a second example of proper cross-examination designed to undercut the witness‟s credibility by showing prior inconsistent action. This actually happened in a case. On direct, grievant had testified most emphatically that on February 17 – which had been the last day for him to return to work from an overextended medical leave – he had called the personnel director from home and received oral permission to delay his return one more week.

Q: You called the plant on February 17? A: Yes. Q: You were home in bed? A: Yes. Q: Are you absolutely sure? A: Yes. Q: You weren‟t in Florida? A: No. Q: During your leave you were still covered for medical treatment under our health

plan, weren‟t you? A: Yes. Q: So you could have used your Blue Cross card for hospital treatment, right? A: Right. Q: Would you please tell the arbitrator what this document is? (Handing the witness Blue Cross hospital claim form from a Florida hospital for emergency room treatment grievant received February 17, a copy of which Blue Cross had automatically sent to the company‟s personnel department).

Use Logical Relationships

It is the implication of cause and effect lurking in chronology that makes it so valuable for direct examination. A slightly different organizational system is often more effective for cross-examination. It is that of logical relationship.

Here is how it works. The appropriate facts are selected by the cross-examiner, and then put in the order that leads to the inference he wants.

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If you observe that this is the process of “taking things out of context,” you are right. It is taking things out of the context of direct examination and showing that the events do not necessarily add up to what was suggested on direct.

That is the system of logical relationship. It is at the heart of the definition of cross-examination given a little earlier. Cross-examination is the art of honest innuendo.

Enough abstraction. An example will make it clear. The plaintiff in a personal injury case, Martin Drewek, was injured when he lost control of his motorcycle and crashed into a tree.

Drewek claims he lost control because the defendant, Brewster Morris, threw a tree limb across the street in a deliberate attempt to cause the crash.

The defendant, Morris, took the stand and freely admitted putting the tree limb in the street. It was, he said, so the city crew could pick it up with the trash the next morning. The limb did not stick out into the street more than a foot or two. Morris said putting out the tree limb was part of general yard cleanup and had nothing to do with Drewek. The crash, he said, was because of Drewek‟s reckless driving.

Morris denied wishing the plaintiff any harm and instead told a compelling story about how the plaintiff was one of a gang of motorcyclists that invaded a nice residential neighborhood one Sunday morning and how Drewek returned that afternoon to roar up and down the street with his Nazi was helmet strapped on the back of his big bike. Morris said that at one point he tried to flag down Drewek to ask him to ride somewhere else, but Drewek answered his wave with an obscene gesture.

Now comes the cross-examination. The plantiff‟s counsel realizes that Brewster Morris would never admit that he had been trying to use the limb as a roadblock. So instead of asking him that directly, he keeps that idea in mind in arranging cross-examination.

Q: Mr. Morris, you were unhappy when motorcyclists came down your street Shadow Bend Lane, that Sunday morning, weren‟t you?

A: Oh, I don‟t know. I guess you wouldn‟t call it unhappy. Q: Well, you called the police, didn‟t you? A: That was after they had been there about a half hour. Q: You called the police? A: Yes. Q: And they did not come, did they? A: No. Not in time, anyway. Those bikers left before the police arrived. Q: Mr. Drewek came in the afternoon, didn‟t he? A: Yes, he returned. Q: You have the impression he was one of the people that had been there in the

morning? A: Yes. Q: Mr. Drewek was alone that afternoon, wasn‟t he? A: Yes. Q: And you were unhappy he was there? A: Well, I don‟t know if you would say unhappy. Q: This time you didn‟t call the police, did you?

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A: No. Q: You tried to wave him down? A: Yes. Q: You were going to tell him to leave? A: Well, yes. Q: But he did not stop when you waved, did he? A: No. Q: You thought he made an obscene gesture? A: He sure did. Q: And kept on riding up and down your dead-end street? A: Yes. Q: Then you put the limb in the street, didn‟t you? A: Yes. But it was only sticking out two or three feet. Q: When you put the limb in the street, you knew Marty Drewek was still down at the

dead end, didn‟t you? A: I don‟t know. Q: His motorcycle had not suddenly gotten quiet, had it? A: No. Q: You could hear it inside your house? A: Yes. Q: But you weren‟t in the house, were you? A: No. Q: You were in the yard, carrying a 15-to-20 foot tree limb to the street? A: Yes. Q: And when Marty Drewek came back from the dead end, he hit that tree limb, didn‟t

he? A: Well, yes. He skidded on the leaves. Q: And the leaves he skidded on were leaves on the limb you put in the street? A: Yes. Q: And then you saw him fly through the air, didn‟t you? A: I saw it, yes. Q: He was not on his motorcycle then, was he? A: No. Q: He was wrapped around the tree across the street, wasn‟t he?

There it is. Inference? Certainly. Innuendo? To be sure; honestly assembled from the information that was in the case.

Impeachment by Omission

he idea behind it is simple, logical – and not very appealing. That is one of the reasons why it is hard to do it right and easy to do it wrong.

The notion is that if a witness testifies to something in court that he did not say in an earlier statement, then his testimony is false. Lawyers find that idea attractive. Trained to listen to the obvious restated to the point to tedium, we assume that if it has not been said before, it is not true.

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But not everyone thinks that way. So when we try to impeach a witness with evidence of an omission, the jury often finds it easier to believe that the earlier statement was incomplete than to accept the idea that today‟s testimony is wrong.

Take a simple example drawn from the National Institute for Trial Advocacy problem, United States v. Cannon. It is an espionage case. Acting on a tip, Special Agent O‟Rourke of the Federal Bureau of Investigation posts a stakeout near the Cove Bar and Grill and keeps close watch on a nearby telephone booth. During his surveillance, he sees a woman enter the booth and apparently put a small container underneath the phone stand.

On direct examination, Special Agent O‟Rourke‟s description of the woman matches the defendant beautifully. And that is our concern. We are not interested in raising any other issues. We will assume that there has been a crime committed and that the telephone booth actually was used as a drop to get stolen nuclear submarine secrets to a Russian agent. We want to attach O‟Rourke‟s identification of the defendant, Evelyn Cannon, as the woman who entered that telephone booth during O‟Rourke‟s stakeout.

And we have great material with which to work. O‟Rourke was alone at the time, alternating shifts with another gent. He was in the middle of a twelve-hour night shift on the third day of the surveillance. The woman he saw enter the booth was diagonally across the street from O‟Rourke, and the lighting was poor. O‟Rourke, was in an unmarked car, situated so that he had to look back over his shoulder to see the booth. He used nothing to aid his vision and took no pictures. Best of all, his official report of the surveillance, made within hours of the incident, gives almost no details about the woman who entered the booth. She is simply described as a “female, 5 feet 4 inches, approximately 110 pounds, wearing tan trench coat.

Armed with material like that, the inexperienced cross-examiner is likely to think he is faced with a slam-dunk situation. All he has to do is stand up and bludgeon Agent O‟Rourke with his insufficient report, right?

Wrong.

Look what can happen on cross-examination, even with a cooperative witness:

Q: Agent O‟Rourke, I was struck with the detail you were able to muster when describing the women you say entered the telephone booth. You say she was a black woman dressed in a tan trench coat?

A: Yes, that‟s correct. Q: had a belt on the trench coat that was tied around her waist? A: Yes. Q: Was wearing a red scarf around her head? A: That‟s right. Q: But you were able to see that she had a short Afro hairdo? A: Yes. Q: She was wearing large hoop-style gold earrings in her ears? A: Correct. Q: Was carrying a brown leather shoulder bag? A: Yes.

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Q: And wearing knee-high brown leather boots? A: Yes. Q: Agent O‟Rourke, please look at what has already been marked as defense exhibit 3

for identification. That‟s your official report, filed with the FBI concerning this surveillance, isn‟t it?

A: Yes. Q: You describe the woman who entered the telephone booth in your report, don‟t

you, Agent O‟Rourke? A: Yes. Q: Look on page 2 of your report, please. It says the person who entered the telephone

booth was, and I quote, “a female, 5 feet 4 inches, approximately 110 pounds, wearing tan trench coat.” That‟s what it says, doesn‟t it?

A: Yes. Q: It doesn‟t say it was a black woman in a tan trench coat, with a short Afro-style

haircut, wearing gold, hoop-style earrings, boots and a scarf, and carrying a large shoulder bag, does it?

A: No, this report is just a summary. It doesn‟t have details like that.

We will leave now, before it gets worse. What happened? The cross-examiner‟s question technique was fine. He asked short, leading questions and brought out one fact at a time. Nevertheless, the results were a disaster. Why?

First, the jury heard O‟Rourke confirm every detail of the description he had given on Evelyn Cannon. The effect was to reinforce direct examination, rather than to set up an impeachment.

Second, nothing in the cross-examination suggested that the jury should decide that the report was a more accurate account of what agent O‟Rourke actually saw on his surveillance than was his testimony on direct examination.

What could he have done to make it better? The right order is the most important ingredient to an effective impeachment by omission. The first step is to validate the prior statement. It comes first because you have to do it before the witness knows how you are going to use it to attack his testimony. If you ignore this rule and start with the point to be attacked, you will spring the trap before the witness gets to the cheese, which is what happened to the lawyer who just cross-examined Agent O‟Rourke.

How you validate the prior statement is nearly as important as when you validate it. You want to create the impression that the former statement would have contained the missing information if the information were true. There is another way to look at it. The job is to take a hole and turn it into an inconsistency. And the way to do that is to make the former statement look complete – as if there were no holes. That way the information brought out for the first time on direct examination will look like a recent invention.

Finding the Pressure Point

Making a former statement look as if there were no holes in it may sound easy, until you remember that you have to do it on the cross-examination of a hostile witness. Whether that cross-examination will be successful will depend largely on your ability to find the right pressure point.

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Pressure point? It is the point you want to push to set up a series of questions on cross-examination. If you think a good pressure point is what you must stress to make the witness go in the direction you want, you are partly right. But only partly. A pressure point will only be effective if it also makes the witness go in the direction he wants. So the trick is to find a direction in which you both want the witness to go.

What is the right pressure point for Agent O‟Rourke? There is no one right point, but there are several worth considering.

That his written description of the woman he saw was detailed and complete? No.

That he is a careful agent, and so writes good reports? Only a slight improvement.

That this was an important case? We are getting warmer. If it was an important case, then the jury might think the report should have been a careful one. On the other hand, the importance of the case might make the jury more prone to return a guilty verdict.

That the investigating espionage is intricate and demanding? Maybe, but we have to be careful, because we do not want to make Agent O‟Rourke look too good in the process. We will give it a try.

Q: Agent O‟Rourke, you specialize in espionage? A: Correct. Q: I gather it is a difficult field in which to specialize? A: (just a little suspicious) Well, perhaps. Q: You try to crack spy rings. A: Yes. Q: Find who is selling military secrets, for example. A: Yes. Q: We can agree it is detailed, demanding work? A: Yes. Q: It may involve long, tedious hours watching for a drop? A: Yes. Q: Sometimes it may involve simultaneous investigations going on in different parts of

the country? A: Yes. Q: Or investigations that may go on for years? A: Yes. Q: It requires patient, careful observation of small facts that may eventually add up to

something big? A: Yes. Q: And if your identity becomes known to the suspects, you may have to leave the case

and turn over your investigation to someone else? A: yes.

There it is – part one. Although records were never mentioned once, the pressure point was developed to show some of the reasons why good records are essential in espionage cases.

Now we are ready for part two:

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Q: So that in espionage cases, there is necessary paperwork? A: Yes. Q: You need to preserve this kind of detail for later use – in a follow-up investigation,

or in court? A: Yes. Q: And in fact part of your training to become a special agent involved learning to write reports with the proper detail? A: Yes. Q: How to describe what you saw? A: Yes. Q: And how to describe who you saw? A: Yes.

That is part two. All of the questions and answers were set up by part one – the pressure point. You may, by the way, be tempted to push part two a little further. For example, you might want to show that Agent O‟Rourke has been in hundreds of espionage cases and has written thousands of reports. But watch out. First, turning something important into a dull routine will take the edge off the impeachment. Second, you must be careful not to milk any one point too long, lest you lose witness control. Third, if you stay on one idea too long, the rhythm of the impeachment will be lost, and the jurors will start thinking of other things.

Now we are ready for part three. And if you think it is time to spring the trap, you are premature. The purpose of part three is to show that what Agent O‟Rourke saw that night is what is in the report.

Q: Now, Agent O‟Rourke, I‟d like to ask you about the early morning hours of November 14. You were on your stakeout? A: Yes. Q: On Front Street? A: Yes. Q: Across the street from the Cove Bar and Grill? A: Yes. Q: You were watching the telephone booth that was north of the Cover Bar and Grill? A: Yes. Q: It was across the street from you, too? A: Yes. Q: You were in your car? A: Yes. Q: It was facing south? A: Yes. Q: So when you were facing forward in your car, the telephone booth was behind you

on your left side and across the street from you? A: Yes. Q: It was about 2:00 in the morning? A: Yes. Q: It was the third day of your stakeout? A: Yes. Q: You had been in the car constantly since 8:00 pm the night before?

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A: Yes. Q: You saw a woman enter the phone booth? A: Yes. Q: Apparently leave something in the booth? A: Yes. Q: And then leave the phone booth and retrace her steps? A: Yes. Q: The nearest streetlight was to the north of the phone booth? A: Yes, I guess so. Q: So that when this woman entered the booth and left the booth, the light was behind

her, correct? A: Yes, I guess so. Q: And after this woman left something in the booth, you stayed in your car, didn‟t

you? A: Yes. Q: You wanted to see if someone would come and pick up what had been left in the

booth? A: Yes. Q: So you did not get out of the car? A: No. Q: Or follow the woman? A: No. Q: Or try to get a better look at her? A: I didn‟t need to. Q: You say that despite everything you were able to get a good look at this woman? A: That‟s right. Q: You described a woman in your official report? A: Yes. Q: And, the woman you described is the woman you was that night? A: Yes.

That is part three.

Closing the Trap

Now we are ready to close the trap. But we will not do it the same way it was done the first time. We are going to attack Agent O‟Rourke‟s testimony on direct examination, but we do not need to repeat it to do that.

Q: Agent O‟Rourke, please look at defense exhibit 3 for identification. That‟s your official report of this investigation, isn‟t it? A: Yes. Q: That‟s the report you filed with the FBI? A: Yes. Q: Show us, Agent O‟Rourke, where is says you saw a women wearing brown leather knee-length boots. A: (pause) It‟s not there.

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Q: Show us where it says you saw a woman wearing gold hoop-style earrings. A: That‟s not there either. Q: Does it say this woman had a brown leather shoulder-bag? A: No. Q: Does it mention a short Afro hairdo? A: No. Q: Or a red scarf? A: No. Q: Agent O‟Rourke, does it even give the race of the woman who entered the phone

booth? A: (pause) No. Q: It simply describes the person as “a female, 5 feet 4 inches, approximately 110

pounds, wearing a tan trench coat.” Correct? A: Yes. Q: No further questions.

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Opening Statements

he purpose of an opening statement is to give the Arbitrator your idea of what the case is about. Except where the Arbitrator has been on your panel for a number of years, the Arbitrator comes into the room as the person least knowledgeable about your specific

contract and workplace. The opening statement begins the process of educating him/her about those matters and the dispute that brings you to arbitration. It also prepares him/her to make procedural or evidentiary rulings.

The opening statement is not the place to go through an exhaustive summary of the evidence. It should give a “whiff of the perfume” of the case, not dump the whole bottle on him/her.

Like the prologue to a play, a good opening statement alerts the Arbitrator, in an organized fashion, to the kinds of issues that you expect to arise:

Relevant contractual provisions and workplace rules

Arbitrability disputes

Contract interpretation issues

Credibility disputes

Documentary issues

Factual disputes

“Past practice” and similar issues

The best way to plan an opening statement is to plan your closing argument or brief. That is also the best way to plan your presentation of the case. If you cannot write your closing argument or brief, you do not know enough about your case to go to hearing.

Practice Tip: Regardless of whether or not you have a court reporter, you should speak slowly and distinctly. The court reporter needs to become familiar with your speech pattern; the Arbitrator needs to do that and to take in all this information for the first time.

Practice Tip: It can be helpful to have a written opening statement to give to the Arbitrator. It is not helpful to read it into the record at break-neck speed. If the parties have not agreed to provide written opening agreements to the Arbitrator before the hearing, you should suggest offering them to the Arbitrator and each other at the start of the hearing and taking a break so the Arbitrator can simply read them. It is necessary for you to read them into the record.

Practice Tip: KISS (Keep it simple Sir or Sister or Stupid). You have the rest of the hearing to go into the complications Time is not on your side.

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Practice Tip: Rarely, if ever, withhold “bombshells” from your opening statement. If you have a bombshell, you usually should have used it to settle the case. When a party introduces a “bombshell,” arbitrators often are open to motions to continue the hearing until the surprised party has the opportunity to investigate and respond. Similarly, it is best to bring out and deal with known weaknesses in your case. The other side knows them anyway, and this is your chance to explain why that weakness does not mean you should have settled.

Direct Examination

irect examination of a witness is difficult for both the advocate and the witness, because it calls for a style of communication that is unnatural. Most people, in ordinary conversation, do not answer the precise question being asked and stop talking. However, that is the most

persuasive direct testimony. That is why it is advisable to avoid leading questions and use narrative testimony judiciously, even if your opponent does not object. Your goal should be present information in manageable bites, organized in a logical sequence.

Direct examination should allow the Arbitrator to “see” the event being described. The more details, the more likely it is that you will succeed in this air. For example, a party may introduce bargaining history to illuminate unclear contract language. It is not particularly helpful to have a negotiator testify, “We discussed it several times and eventually agreed that…” After all, if it was so clear what the parties had agreed, you would not be in arbitration.

It is far more compelling to have a bargainer testify in detail regarding who made which proposal, when the proposals were discussed, and specifically what was said by each side on each occasion regarding each proposal. For example, did the parties talk about situation where the contract clause would and would not apply? Even if they are not exactly like the situation at issue, examples that the parties themselves raised can shed light on what they had in mind.

Phrase questions with simple words. Many witnesses do not understand “prior to” and “subsequent to.” Use “before” and “after”. If you discover mid-examination that the witness thought “prior to” meant “after”, get it on the record that the witness was confused, and then go back through any questions and answers that might have been affected by that misunderstanding.

Beware of the double and triple negative, especially on direct examination. (“Isn‟t it true that you did not talk again about the emergency leave proposal until November 17”) Most of them are leading, and a “yes” or “no” answer to such a question is inevitably vague. If you stray into such a question, make sure your next question causes the witness to clarify the answer. Some, but not all, arbitrators will do it if you fail to do so. Those who don‟t will probably give the answer the reasonable interpretation that is most damaging to your case.

Leading Questions

leading question is one which suggests the answer you are seeking. A leading question can almost always be answered “yes” or “no.” However, not every question that can be answered “yes” or “no” is leading. “Did Mr. Green say anything in response?” is a non-

leading question because it does not suggest the answer.

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Except on preliminary matters, direct examination should be done in a non-leading fashion as much as possible. There are at least three reasons why leading questions are bad strategically, as well as technically objectionable.

1. The advocate, rather than the witness, is testifying. Unless the advocate is the more knowledgeable of the two about what happened, this can give inaccurate or incomplete information to the Arbitrator. If the advocate is the more knowledgeable, s/he should be the witness. If not, the witness should testify.

2. A more practical problem is that the Arbitrator is taking all this information in for the first time. At least in theory, the Arbitrator does not know whether your witness will answer “yes” or “no” to a leading question. In taking notes, the Arbitrator cannot be sure whether the question you are asking is going to lead to an answer that is factually significant to this case.

3. It makes your witness look coached. If there is a credibility dispute, the Arbitrator has no basis for evaluating your witness‟s credibility, other than the knowledge that the witness could not tell the story without your assistance.

Narrative Testimony

narrative question asks the witness to describe a lengthy event without development through successive narrow questions. Most arbitrators will permit it. It should be used only after a proper foundation has been laid for the question. For example, a narrative of a

conversation should be preceded by information regarding the date, approximate time, place, and participants. A narrative of an observed event should be accompanied by information regarding where the witness was, the date, the approximate time, others in the vicinity, and the presence or absence of any factors that could have affected the ability to observe accurately (e.g., lighting, fog, visual obstructions, or noise). Narrative testimony often covers matters beyond those that are relevant to the case at hand. A lengthy narrative may also omit important matters. If it is possible to break the story up into logical segments through focused questions it is far preferable to do so.

Irritating Habits to Avoid

our aim is to have the Arbitrator focus on your witness‟s story, not on you. You should avoid mannerisms that call attention to you or distract attention from your witness. Responding to answers with “OK” or “I see” becomes distracting after the tenth or

eleventh repetition. It is unnecessary to thank a witness (yours or theirs); even if you think you really scored a point with that answer. If you wish to emphasize a witness‟s answer, use the answer in the next question.

Q: What did Mr. Smith say to you about proposed Article X? A: He said the Union was withdrawing that proposal. Q: When he said the Union was withdrawing that proposal, what did you say? A: I said “Great, we have a deal, let‟s wrap this up and get it printed.”

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Avoid superfluous phrases in questions. “What, if anything, happened next?” means the same thing as “What happened next?” “Did there come a time when you…” means the same thing as “Did you…” The shorter the phrase avoids wasting time and confusing the witness.

Documentary and Other Demonstrative Evidence

very document or object introduced in evidence must be capable of being authenticated – that is, shown to be what the party introducing it says it is – unless authenticity is stipulated by the parties. Many documents are self-authenticating. Rule 902 of the Federal Rules of

Evidence requires no extrinsic evidence of authenticity for many types of documents, including such things as domestic public documents under seal, certified copies of public records, official publications and newspapers and periodicals. Authentication is not required if the document or object is not introduced in evidence. For example, notes can be shown to the witness to refresh recollection without ever establishing whose notes they are or that their contents are accurate.

Where many related documents are involved, summaries of their contents should be prepared, with adequate opportunity to the other side to examine the underlying documents and compare them with the summary. If one side objects, the underlying documents may have to be introduced, but the summary helps the arbitrator analyze the case from the summarizer‟s perspective. Even if the summary is not admitted as evidence, it can be submitted as argument.

A document shown to a witness must always be first shown to opposing counsel, even if you do not plan to introduce the document. When a document is used to refresh a witness‟s recollection still has not been refreshed even after looking at the document, but the witness testifies that the document was written at a time when the witness‟s memory was accurate, the document may be introduced as “past recollection recorded.” But it‟s not a very convincing way to make your case.

Documents may be introduced in evidence for a limited or broad purpose. Once a document is in evidence for a limited purpose, it can be considered for a broader purpose only if the Arbitrator so rules. Absent such a ruling, an Arbitrator is likely to ignore any argument based on a broader use of the document than that for which it was admitted.

Best Evidence

document is not necessarily the “best evidence.” For example, the minutes of a meeting are not the best evidence of what took place at the meeting; they are, in fact, hearsay as to that issue. The posted department work rules are the best evidence of the contents of those rules

(which may or may not be the same as the work rules that were actually enforced in the department). In introducing a document, be aware of whether you are introducing it to prove the truth of its contents or merely to prove that the document says what it says.

Effective Rebuttal

ebuttal has a very limited purpose. That purpose is to respond to matters raised by your opponent that you have not already addressed in your case in chief. Often, it involves credibility issues. In many cases, rebuttal is unnecessary because you have prepared your case

in chief so completely that you have already trumped any points your opponent can raise. In virtually all other cases, rebuttal should be extremely brief.

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Rebuttal is not for the purpose of repeating the evidence from the case in chief. The Arbitrator really did hear the testimony the first time, and is not eager to hear it again. At most, a question may be prefaced by a brief reference to the prior testimony, if necessary to set the stage for your questions on rebuttal. The Arbitrator also is not eager to hear the witnesses call each other liars. If your witness testified convincingly the first time around, leave it for your closing argument or brief. If your witness was not convincing the first time around, hearing it twice usually will reinforce the initial bad impression.

There is a strategic reason for putting as much of your rebuttal evidence as possible in your case in chief. Rebuttal often comes at the end of a long day. Everyone is tired. Witnesses probably will not be at their best, nor can they necessarily remember what they testified that morning (or the previous day). Your questions may not be as sharp; the Arbitrator‟s hand is getting tired from taking notes; and everyone is anxious to get the hearing over with and go home. It is far better to have your evidence in the record before this point. There is also a risk that a technical objection will prevail, arguing that the evidence is not truly rebuttal evidence, but should have come in as part of the case in chief. Many arbitrators permit evidence that is technically rebuttal evidence to come in with the case in chief, particularly if the advocate explains this will avoid recalling the same witness later.

Rebuttal is sometimes the place for “bombshell” evidence, if you have a really good reason for not having used that evidence to settle the case. However, the other party may successfully seek a continuance to respond to your “bombshell”. You then have bought yourself another day of arbitrator‟s fees.

Information in Section 8 was taken, in part, from the article “Persuading the Arbitrator” by Luella E. Nelson, Arbitrator, Mediator and Factfinder – Section 10.

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Closing Your Case: Oral Argument at the Hearing

or Post-Hearing Brief

The purpose of a closing argument, whether oral or in writing, is to:

Identify the principal issues to be resolved

Provide the Arbitrator with a way of thinking about each disputed issued that will produce the conclusion for which you have advocated, and

Convince the Arbitrator that your way of reasoning is correct

The question then is – what method of closing your case – oral or written – will be the most effective way to achieve the purpose?

As a rule, use an ORAL CLOSING ARGUMENT when:

The case is simple

The facts are clear and undisputed

The hearing is of short duration

The Arbitrator is experiences, and appears to understand the issues fully

The Arbitrator has stated that written briefs are not necessary

You have presented a strong evidentiary case, which can be summarized effectively with oral argument

On the other hand, written POST-HEARING BRIEFS are appropriate when:

The Arbitrator requests one

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The other party submits one

The case is complex or technical

The Arbitrator is inexperienced, or you feel he/she has not grasped the case

You feel the case needs a strong restatement

The case involves multiple issues

The other party has introduced an aspect you feel required additional response such as a “surprise” witness or fact brought forward at the hearing

The case involves extensive technical or statistical data which needs to be highlighted and made relevant

The hearing extended over a minimum of days, or continued over time, and you feel the arbitrator‟s recollections require refreshing

Guidelines for Oral Closing Arguments

Both sides in the arbitration hearing have rested. It has been agreed that closing arguments will be oral at the hearing. You prepared an outline of your planned closing argument before the hearing and made notes during the hearing of any needed revisions or points to add to your outline. Your outline should be the basis for your closing argument. A brief recess is called, during which you review your outline and gather your thoughts. To be successful, what should your closing argument accomplish? Here are some useful pointers.

Your closing argument should:

Be a review for the arbitrator, the testimony and evidence supporting your case. You want to convince the arbitrator to accept your conclusions.

Be direct. Make your main points early.

Be given in straightforward, direct words. Avoid bureaucratic terminology.

Be logical. It is a good idea to prepare an advance outline of your anticipated closing argument, making sure it is laid out logically.

Be clear and understandable. Your ideas and contentions should be expressed so that the arbitrator is clear and not misunderstood.

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Emphasize the important elements of the case.

Include illustrations to underscore your points. Choose these illustrations carefully: comparisons and analogies should clearly support your argument.

Not state as fact something not previously established in the hearing.

Emphasize your important points through artful repetition or re-phrasing.

Anticipate the opposing party‟s argument, which you then counter with your argument.

Be trimmed to essential points; remember that you must hold the attention of the arbitrator.

Including your specific request for action or remedy at the close of your argument.

The Post Hearing Brief

Provide an introduction, besides the cover page, identifying the parties, dates, etc.

State the issue(s) involved including exact reference to any and all contract articles and language involved.

State the facts as presented in the hearing.

o Be clear, concise and brief

o Demonstrate how issue(s) arise from the facts

o Be accurate in restating facts

o Do not review evidence

o Do not omit damaging or unfavorable items, but make your presentation in a fashion, which undercuts potential damage

o Avoid personalities

State your argument(s). When doing this, remember, the chance of your argument prevailing increases by the capacity of the arbitrator to “lift” your language and incorporate it in the award.

o Don‟t go outside the record and try to introduce new evidence

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o If a transcript is available, utilize it to highlight specific points

o Try to deal with conflicts in testimony in an “arguendo” basis. That is, “Assuming this to be true, then…”

o Unless precedence appears to have been the basis for the opponent‟s major thrust, do not argue precedence

o Know the arbitrator

o Keep language simple

o Do not argue all points raised by the opponent. Identify the major arguments used and “go for the jugular”

o Do not abuse footnotes. Use appendices and/or sketches and illustrations to clarify where necessary

o Use the evidence introduced during the hearing as a brush to “paint your picture”

Formulate a conclusion that does not restate the case but gives the overall logic, which must lead to the desired award. The conclusion should also restate the remedy sought.

The Post Hearing Brief: A Check List

It should contain a statement of issues to be decided, fact proven in the hearing, argument and conclusions

It should contain the specific portion of the applicable policy, rules, etc. involved in the grievance

It should contain an analysis of these provision from your viewpoint

It should apply these provisions to the facts that were established at the hearing

It should contain the arguments and comments of the parties with respect to the evidence

It should analyze the evidence and arguments, showing how each support your position

It should respond to the party‟s analysis of the case, refuting its view of the evidence

Your brief should present an analysis of the evidence and argument, which persuade the arbitrator that your view of the case is the correct one. Use applicable documents,

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citation of past arbitration awards, testimony from the hearing and other evidence to develop your argument

Present your argument in a style that the arbitrator could use to write his/her findings and award, should the arbitrator agree with your position and analysis of the case

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The Eight Essential Steps in

Grievance Processing

By Mark I. Lurie

The author is a member of the Florida Bar and has been a member of the American Arbitration Association and Federal Mediation and Conciliation Service panels of labor arbitrators since 1978. He wishes to acknowledge, with appreciation, the contributions of arbitrators I.B. Helburn and Chester C. Brisco to the preparation of this article.

The primary responsibility of the labor or management advocate is that of persuasion. Presuming that he grieving party the union which is generally the case:

The union advocate must persuade management or, ultimately, an arbitrator that the collective bargaining agreement has been breached and that the dispute is arbitral. Or, if the advocate thinks that the case lacks merit, the employee/grievant must be persuaded not to proceed.

A management advocate must persuade the union or, ultimately, an arbitrator that no contract violation has occurred or that the matter is inarbitrable. Or, if the advocate thinks that the union‟s claim has merit and that settlement is advisable, the advocate must persuade the employer of that fact and of reasonable terms of settlement.

There are no pre-qualifications for people to become advocates. Nevertheless, achieving persuasiveness demands intelligence, diligence and above all (but least appreciated), the methodical development of a theory of the case, meaning the facts and arguments that will persuade other of one‟s position. This article prescribes an eight-step methodology for developing a persuasive theory of the case.

Pre-Arbitration

Step 1: Gather Evidence

Testimony is the principal type of evidence presented in arbitration hearings; your case will likely be premised upon what people have to say. Interview all persons whose statements are relevant to the issue. Ask the opposing advocate to identify any such persons whose statement will be relied upon,

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and interview them as well. You need not transcribe statement verbatim; just note the identity of the person giving the statement, and the points being made. The use of a word processor is recommended; typewritten notes are easier to read than handwriting, and a word processing document has additional advantages that will soon be described.

Collective bargaining agreements often contain a provision stating that each of the parties will cooperate to assure that all the facts and contentions relevant to grievance are developed and considered. Even where such contractual provisions are absent, mutual obligations to cooperate in the development of the facts and contentions, and to resolve the dispute at the earliest possible state are universally recognized to be implicit.

If the opposing side refused to give you access to a witness or to documents or other physical evidence, send a written request to the opposing party by registered mail, return receipt requested, setting forth with particularity the materials requested and the reasons they are relevant. The opposing party will then often comply, recognizing the written request will be offered into evidence and that the arbitrator may draw adverse inference about the evidence withheld, or disallow its introduction, or may allow all its admission into evidence, but give scant weight.

Obviously, a subpoena won‟t do you much good because it complete the witness to appear or the evidence to be produced at the arbitration hearing, and you need to interview witnesses and evaluate the evidence long before then. Nonetheless, a subpoena is sometimes the only means by which the production of evidence can be compelled.

If an arbitrator has been appointed, you might consider advising the arbitrator (in writing, with a simultaneous copy to the opposing party) that access to a material witness or to material evidence has been denied you, and request from the arbitrator a written instruction or order that the witness or evidence be made available or “produced.” Such instructions from arbitrators are not legally enforceable, and such requests are the exception and not the rule. However, such an order, if issued, will likely be complied with for the same reason that pertained above: the arbitrator‟s discretion to draw adverse inferences and to otherwise determine the value to be attributed to evidence.

Also, any physical evidence such as photographs or documents should be identified and, pending settlement of the dispute or arbitration should be set aside for safe keeping, in a manner which will preclude the claim that they have been altered or intentionally culled or discarded.

Step 2: Determine the Facts and Substantiate Them

Determine what facts the evidence establishes. The statements of each of your witnesses will overlap on different factual matters. Collate their statements as follows:

a) Create a separate cover page for each fact established. b) Separate your witnesses‟ statements into the fact they address (I refer to these excerpts as

“statement-portions”), noting the name of the witness on each. c) Append the statement-portions to their related fact cover pages.

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If you recorded your witness‟s statements using a word processor, this process is simply a matter of cutting and pasting the statement-portions to the respective factual claims, and appending the name of the witness.

Step 3: Assess the Facts for Credibility, Accuracy, Reliability and Consistency

As you append to the various facts each statement-portion, add your observations and conclusions about the credibility, accuracy and reliability of the statement-portion furnished by each witness, and also examine each of the statement-portions for their consistency with the others pertaining to the same fact. This seemingly clerical exercise compels you to analyze the probative value of the evidence, and unveils the strengths and weaknesses of your factual claims and those of your opponent.

Step 4: Frame your Arguments

“The facts speak for themselves!” The first thought that comes to an arbitrator who hears this phrase is that the advocate has failed to develop coherent arguments from the facts, and is hoping that the arbitrator will do so – and favorable for the advocate. The twin conceit of “the facts speak for themselves” is “this is a simple case,” which may translate to “I haven‟t thought through the possible complexities of the arguments that might be developed from these facts.”

Facts are what the evidence establishes. Arguments are the way in which those facts show that the collective bargaining agreement has or has not been breached. A fact is that Joe Jones has been employed by the company for 258 years and has a great work record: the argument is that his work record should have mitigated the severity of the discipline. Facts are what is objectively proven, arguments are reasons why those facts should affect the outcome of the grievance (e.g., why and to what degree should the work record mitigate the discipline).

Just as you sorted the witnesses‟ statement-portions by the facts they prove, you should now sort those facts (and their appended statement-portions) into the arguments you need to make, creating a separate cover sheet for each argument.

If you find that our important arguments have few facts to support, recognize that this portion of your case is weak and reconsider your approach.

If you find you have facts that you have not associated with any argument, then consider whether those facts (and the corresponding witnesses‟ testimony and physical evidence) are irrelevant and should be discarded.

If in doubt about how arbitrators have ruled on any of your arguments, research the reporting service or test for clarification, direction and, maybe, inspiration.

Steps 5 and 6: Seek Coherence, Consistency and Credibility

Place your arguments into a logical sequence. Make certain that your arguments are consistent – don‟t undermine your theory of the case by proposing contradictory arguments (such as arguing, in a

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disciplinary case for fighting, both self-defense and provocation). Consider whether your arguments pass the “common sense” test: do they “ring true” in your own mind.

Arbitration Many shop stewards (for the union) and line supervisors (for the employer) are capable of performing steps one through six and, if given that responsibility, will find that they are evaluating their disputes more thoroughly and objectively. Often, disputes move up the chain of command solely because of doubt, insecurity, and misunderstanding. The communications necessitated by the first six steps of this methodology engenders self-confidence in the participants and encourages resolution at the earliest states of the dispute. Moreover, should the dispute go unresolved and proceed up the chain of command, the grievance file that is handed up is more fully-developed and better organized than if the steps had not been followed.

Step 7: Prepare Witness Scripts

Once the dispute has been scheduled for arbitration, outline the questions you will ask each witness. Your questions should serve two purposes. The first purpose is to establish the facts as you see them. For each witness, organize your questions by the facts they pertain to. Since you will have adhered to each of the preceding steps, you will ask only questions which are unambiguous and to which you know the witness‟s answer. If a witness‟s answer is evasive, re-ask the question verbatim; this will make the evasiveness more conspicuous. If the witness‟s answer is different from what the witness had previously told you and you know other witnesses to the prior statement, quote the earlier statement in the form of a question: e.g., “Mr. Jones, didn‟t you tell me when I previously asked you this very question earlier that…”

The second purpose of asking questions is to try to impeach the witness; to show that the witness‟s testimony is not credible. This can be accomplished through the introduction of prior acts of dishonesty or untruthfulness, or by evincing, from the witness, inconsistent or non-credible testimony. If you intend to impeach a witness, an effective approach is to ask the witness questions about each detail of the testimony you believe to be perjuries. Most people have difficulty lying extemporaneously, and flaws, hesitations and other indications of mendacity will often emerge. An ineffective approach is to glower at the witness, to demonstrate to the arbitrator that you think the witness is a contemptible liar.

Step 8: Prepare Admissibility Challenges and Defenses

Laymen often find the rules of evidence incomprehensible, but the rules are easier to understand if you remember their purpose: the exclusion of evidence that is unreliable. The rules of evidence are simply shorthand explanation of why particular types of evidence are unreliable. If you are unfamiliar with the rules of evidence, it would be wise to learn them. But remember this – explaining to the arbitrator why a witness‟s statement or a piece of evidence is unreliable is more important than simply citing a rule of evidence. Most arbitrators are not lawyers. If you think that evidence is unreliable, in the course of making your objection, explain to the arbitrator, as clearly as possible, why the evidence is unreliable and ask the arbitrator to give it correspondingly little weight.

The most prevalent basis for objection is that the evidence is hearsay. Hearsay evidence is:

1. Testimony about what someone said or wrote, or recorded.

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2. Documents or recording describing what someone said, or describing events or conditions offered into evidence to prove the truth of the thing said, written, or recorded, that the event occurred in the manner described, or that the conditions existed.

Hearsay evidence is unreliable because the person who spoke the words, wrote the document, or made the recording is not present to be examined, and his or her observation may have been mistaken, biased, incomplete, or otherwise inaccurate.

There are exceptions to the hearsay rule; they are based on the presumption that, although hearsay, the evidence is probably accurate. Those exceptions cannot be explained at length in this article. But, briefly, the following is a list of some major exceptions:

a) Business records and official documents, including criminal convictions. b) Statements against interest or which demonstrate perjury. c) Expert treatises. d) Reputation as to character. e) Excited utterances or utterances indicating the state of mind of the declarant.

In preparing to make admissibility challenges and to defend against them, confine yourself to that evidence which is the most crucial to your case and that which is most crucial to your opponent‟s. Do not object to the insignificant; doing so will impede the hearing, may make you appear desperate, and will not endear you to the arbitrator. For the evidence you identify as being crucial, consider what admissibility challenges the opposing advocate will make in order to keep your evidence out, and what challenges you can make to keep your opponent‟s evidence out. Consider responses to those challenges, and responses to those responses. For example, an objection based upon hearsay might be defended as a spontaneous and excited utterance, but that defense might be challenged based upon the interval that elapsed between the inciting event and the responding utterance.

And, again, cases are won by getting your evidence in, not by attempting to keep out the other side‟s evidence.

Assure that your witnesses and evidence will be at the arbitration hearing. If you have a doubt about whether a witness will appear or documents will be furnished at the hearing, obtain subpoenas from the arbitrator. You, the advocate, are expected to be prepared to go forward with your case. The arbitrator, opposing advocate, and the witnesses have arranged their schedules, have traveled to the hearing site, and are ready to proceed. Most arbitrators will be unsympathetic to the advocate who has assumed that witnesses would appear solely because they were notified to do so, or have assumed that evidence would be produced solely because it was requested. Do not also assume that he arbitrator will grant a postponement for these reasons.

Conclusion

Some wry observers have commented that the best case preparation they have seen has taken place with the drafting of the post-hearing brief. Personally, I believe that if the effort spent on the post-hearing brief were instead devoted to the methodology described in this article: (a) more grievances would be resolved prior to arbitration; and (b) advocates would be more persuasive and would achieve a higher frequency and degree of success in the representation of their constituents.

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The measure of success of an advocate is not how vigorously he or she has advocated but, rather, whether he or she has been persuasive. The methodology prescribed above is a means and adherence it will inure to the benefit of the advocate, the client, and to the utility and legitimacy of the grievance process.

Summary of the Eight Essential Steps

1. Gather evidence. 2. Determine what important facts the evidence proves. 3. For each fact to be proved, assemble the evidence that pertains to it. Then critically assess

the strength of the evidence with regard to each fact, considering: a. The credibility of the witness. b. The accuracy and reliability of the evidence. c. The consistency or contradictions within the evidence.

4. Develop arguments based upon the facts. Arguments are assertions about what factors should control the outcome of the grievance. For example, the fact that an employee has had a satisfactory work record with the employer over 25 years is a fact; the argument is that this fact should mitigate the severity of the discipline.

5. Place your arguments into a logical sequence. 6. Make certain that your arguments are consistent, and delete any tenuous arguments that

might make the rest of your case appear less credible. 7. If the dispute goes to arbitration, prepare an outline of the questions you will ask each

witness. For each witness, group your question by the facts they pertain to. If physical evidence is to be introduced, determine the point in the questioning at which you will produce this evidence.

8. For your most crucial evidence and the evidence most critical to your opponent‟s case, consider what admissibility challenges will be made to keep your evidence out, and what changes you can make to keep your opponent‟s evidence out. Consider responses to those changes, and responses to those responses. For example, an objection based upon hearsay might be defended as an excited utterance, which might be challenged on a factual basis. And remember, cases are won by getting your evidence in, not by attempting to keep the other side‟s evidence out.

Presentational Skills: A Quick Reference Guide for Advocates

Morley R. Gorsky

The author is an arbitrator on the Ontario Ministry of Labor list of approved arbitrators, and is a panelist in arbitration seminars conducted by the Law Society of Upper Canada. He is also the author of Evidence and Procedure in Canadian Labour Arbitration, published by Carswell in 1992, as well as law review articles and government studies.

The purpose of this paper is to present an arbitrator‟s perspective of what goes on at hearings, to assist those who appear as advocates and presenters for the parties, and to suggest ways in which they can improve their advocacy skills.

The following points represent some matters of advocacy, which while they may appear to be self-evident, can if they are ignored, have an adverse effect on an advocate‟s presentation. I expect that

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many will regard a lot of my “ways” as not being applicable to them. I would only ask that you bear me with an open mind and remember the works of Chuck Barris, the host of the long-canceled “Gong Show”: Denial is not just a river in Egypt.”

1. Tell Your Witness it’s OK To Tell The Truth

The best guide to good advocacy will be of little value if counsel is unwilling or unable to devote the necessary care and attention to the preparation of a case, including the proper preparation of witnesses. Counsel should tell witnesses they intend to call that they must tell the truth and that they must answer question put to them.

Some witnesses feel that they should never agree with opposing counsel and regard every question put to them as being of the “trick” variety. In order to avoid doing something that will help the “enemy.” They refuse to answer questions responsively. Rather than helping their cause, such witnesses undermine their credibility and are of no help (and are frequently an embarrassment) to counsel who called them.

Counsel should not accept nonresponsive answers and should have no compunction about making sure that his or her witness answers appropriately. (After all, why did you ask the question in the first place?) There are many counsels who do so even if this may discomfit the witness. Such counsels are properly more concerned with how the case will appear to the chair than with whether such an approach will offend the witness.

While witnesses should usually be permitted to answer question “in their own way,” they must answer responsively within a reasonable period of time and not engage in lengthy digressions which, when they are completed, leave the arbitrator unsure as to what the answer was. Counsel is responsible for ensuring that the questions put to the witnesses are answered.

2. The Role Of Common Sense

In advocating a case, a good presenter has to “teach” the arbitrator about the facts and the law. Based on the assistance of counsel, the chair should know where the case is going and be able to see why evidence being presented is relevant. It is insufficient to tell the arbitrator that what may appear to be muddled and confused will become clear if he or she will just leave counsel alone. Counsel cannot blame the chair when he or she is both frustrated and disappointed because the promise of clarity and relevance is never realized.

There are some occasions when the tactic of seeming to develop a case without a focus is a cleverly constructed stratagem for keeping an opponent (including the opponent‟s witnesses) off balance. If this is the case and your position is valid, I find no fault with it. Remember, however, although this tactic may have worked for Perry Mason, Perry had certain advantages – he had more control over the script. In real life, I can remember only a few occasions when the strategy worked, and many more times when it “bombed.”

Such an approach to presenting a case has the further disadvantage of making it more difficult to follow the evidence at the hearing. If it does not work, it also results in the arbitrator having difficulty in reconstructing the evidence from his or her notes. Sometimes counsel also appears confused while trying to confuse their opponent. Feigning confusion

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may have worked for Colombo – but will it work for you? Counsel should, in preparing a case, consider the effect of trying the chair‟s patience while he or she waits for the relevant facts to emerge.

I try to respect the role of counsel and refrain from engaging in second guessing why the case is being presented in a particular way. Counsel should also respect the rights of the arbitrator who is disappointed and frustrated when he or she cannot follow the evidence.

3. “I Will Come To That Later”

Be very careful about saying to the chair: “I will come to that later,” or “That will become clear later.” The chair naturally expects an immediate answer to a question asked of counsel. I am too often disappointed when it doesn‟t become clear later. There may be good reasons for occasionally finessing an arbitrator‟s attempts to find out where you are going or what you mean, such as not wishing to alert your opponent or advise witnesses to your strategy. Unless you are an acknowledged master strategist, however, you should be concerned when this is your too-frequent response to the chair‟s questions.

Counsel may be perfectly content with the way the evidence is coming out, and it may accord with his or her expectations. However, counsel should try to understand what may be troubling the arbitrator whose concern may be legitimate, and whose request for clarification may be quite proper. Sometimes, when counsel informs the chair that he or she should be patient and that the matter will become clear later if only counsel if left alone to try the case, there is a risk of losing credibility when this does not happen.

4. Show The Chair That You Welcome Question Testing Your Arguments

A frequently expressed concern of counsel is related to intervention from the chair – usually occurring during the final argument. Often counsel would prefer to be able to present their argument without having to cope with distracting interruptions from the chair. However, many counsels are pleased (or so they tell me) when a chair asks questions during argument in order to obtain clarification. Although the flow of counsel‟s argument will not be as smooth as a result of such interventions, this is a small price to pay for the benefit of being in a position to respond to the chair‟s concerns during rather than after the hearing, when it will be too late.

5. Engender Trust – The Value Of Candor

It is important that counsel gain the trust of the chair. This will be difficult to accomplish when the chair gets the impression that counsel is so intent on winning that they overlook certain aspects of fairness that arbitrators are entitled to expect. It is natural that counsel will have a bias in favor of the side they represent – but there are limits to the extent the focus on winning can be regarded as acceptable. Effective counsel conveys a sense of candor and of not wishing to win at any cost. When counsel develops a reputation for questionable practices, they risk being viewed with suspicion, not only in the instant but in subsequent cases.

Although stated in the contest of conventional litigation, the words of the late eminent counsel J.J. Robinette are equally applicable to the field of arbitration: “An advocate‟s

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primary duty is to the court, to be fair and frank and honest. His next most important duty is to win his case for his client.”

6. Be Cautions In Raising Novel Legal Arguments

Candor includes being scrupulous in your presentation of the law. Although there are usually a number of ways to interpret a legal principle, and it is perfectly proper to make arguments, even novel ones, in favor of a particular interpretation, there are limits as to how far counsel should go in doing so. As is usually the case, it is not possible to state a mechanical rule that will also apply, at some point counsel should know that an argument is not only far-fetched, but if pressed, may cause the chair to wonder about his or her ethics, knowledge of the law, or both.

For example, don‟t try to convince the arbitrator that there is an immediate burden on the party against who it has been raised, of showing that the doctrine of estoppels doesn‟t apply.

This is not to suggest that counsel should not argue a novel proposition. However, the effect of raising one should be fully considered before it is pursued. Lawyers are trained to be inventive – they should also be selective. Almost all cases are won or lost on the arbitral jurisprudence as it is generally understood at the time of the hearing.1

7. Don’t Always Take Advantage Of The Lack Of Discovery Mechanisms

Many arbitration hearings are conducted without the availability of broad discovery mechanisms, and when they are available in some form, they are often not fully resorted to. As a result, the parties usually are less well-informed about the case they will have to meet (or make for that matter) and are, consequently, less tied down to legal or factual positions that they would be in conventional civil litigations. Much evidence, which would have been either agreed to or otherwise established as a result of pleading, productions of documents, or oral discovery (impositions) in a conventional civil case, has to be formally proved unless good sense prevails and evidence that is not seriously (or realistically) in dispute is agreed to.

Some counsel find the temptation irresistible and agree to very little in the hope that by compelling their opponent to prove everything (even that which counsel has no means of disputing), proof will not be forthcoming. I have observed counsel forcing their opponents to prove facts that are evidently not in dispute, in the hope (almost always a vain one) that they will be unable to do so. What usually happens is that the facts are established, but only after an inordinate amount of time has been expended. In addition, the level of frustration at the hearing is raised. Where such a tactic is unsuccessful, because the “true” facts eventually tend to come out (often with excruciating slowness), counsel who insists on formal proof may suffer a loss of credibility with the chair.

Arbitrators welcome the professional presentation of a case by counsel. In addition to obtaining agreement on as many facts as possible, it is also a good idea to obtain prior agreement with respect to documents so that the smooth presentation of a case is not impeded unnecessarily.

1 “The Arbitrator‟s Lot,” by P. Seitz, 38 The Arbitration Journal 51 (1983)

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8. Counsel’s Response To The Nonresponsive Answer

As an arbitrator, I am puzzled when counsel asks a question of a witness which is not answered responsively, and counsel then continues as if the answer was responded. This does not mean that the witness remained silent. He or she usually said something by way of an “answer,” but the answer was clearly not responsive to the question. I often suspect that counsel actually believes that the question was answered and that the answer was the one that they sought. In such circumstances, the arbitrator could choose to say nothing.

Another opinion is for the arbitrator to pretend not to have heard the “answer” and repeat counsel‟s question – and usually get the same non-responsive answer. In this way, counsel should know of the problem and have an opportunity to deal with it. I am sometimes told that there is a difference between a witness answering a question in a non-responsive way in a cross-examination and doing so in direct. The difference is said to be based on the fact that the cross-examiner will benefit froth the nonresponsive answer which demonstrates that the witness is not forthcoming, which will affect his or her credibility. However, the nonresponsive answer, when not immediately objected to, can hurt you. Assuming that the question asked in cross-examination was a serious one and has a serious purpose, why give the witness an opportunity to avoid answering it and, at the same time, undermine your case? The expressed justification for letting a witness, in effect, make a speech on a topic of his or her choosing which is aimed at making some point(s) against your case, overlooks the fact that your may, in the process of showing-up the witness, be letting him or her choose the direction of your cross-examination.

Allowing the witness to direct the cross-examination is no better than allowing the witness to determine the way in which direct evidence will be adduced. In one case, when I concluded, after many questions had been asked in direct, that the presenter had no idea what his witness would say, I asked him where the evidence was going. The answer was: “I‟d like to find out, too.” When you‟ve lost control of the witness, you„ve lost control, whether you are engaged in direct or cross-examination.

9. The Limits Of Informality

There are some instances when counsel knows that an answer is not responsive and endeavors to convince the chair that it will become so if the witness is only left to “answer in his own way.” There are some witnesses who will only answer a question they feel comfortable with – usually one they silently ask themselves as a substitute for the one put by counsel. In my experience, such a witness rarely gets around to answering responsively no matter how much time is give to answer “his own way.” When, for example, a witness who is asked if he or she saw a door on the north wall of a room, starts to give a short lecture on the history of doors, the witness should be interrupted and the question repeated. If a responsive answer is still not forthcoming, the witness should be directed to answer the question first and add necessary explanatory detail later.

When it is obvious that a witness is not answering a question appropriately, counsel does not gain credibility by insisting that the witness is doing so, but “in his own way.” Also, counsel should be aware of the disquieting effect of leaving the chair hanging after a question has

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been asked by not answered responsively. To joust with the chair, in these circumstances, can only be counterproductive.

10. What To Do When Tthe Chair Is “Wrong” Or Misbehaves

Chairs are usually aware of their limitations. They know they sometimes make mistakes in their assessment of the fact or the law. Or they may be having a “bad” day in other ways. Nevertheless, during the course of a hearing, when called upon to make a ruling as to the admissibility of evidence or with respect to other matters, and after having done so arbitrators expect counsel to go on to something else after the ruling is made. It does not enhance counsel‟s credibility in the eyes of the chair if he or she refused to follow directions and continues to reargue the same point (usually in the same way) without any substantial new basis for doing so. Nor does it assist counsel to lose his or her professional “cool” and by words, facial expression, or body language, indicate what he or she really thinks of the chair‟s decision.

This does not mean that counsel should not let the chair know when he or she is wrong. Counsel should defend their position vigorously. The way counsel deals with the situation is all important. It is all a matter of balance.

11. The Intrusive Chair

One of the common complaints expressed by counsel about the conduct of some chairs is that they attempt to take over a case by usurping the role of counsel. Such conduct is, or course, improper – but before concluding that that is what is happening, counsel should consider whether the chair is merely trying to understand the case but is being c9onfused by the manner of presentation. It is one thing for a chair to take over a case by assuming the role of counsel; it is quite another thing for him or her to ask witnesses what they mean by their answers when their answers are unclear, or to ask counsel for clarification of a position.

Above all else, good counsel is clear, and to some extent, responsible for the clarity of their witnesses. I am usually uneasy when counsel and their witness appear to be meeting for the first time at the hearing and/or where the witness seems to have an agenda for the presentation of evidence that is a variance with that of counsel. There are some exceptional counsels who have a genius for getting the evidence they want from their witnesses, even when they have had little opportunity to speak to them prior to the hearing. Most of us lack this gift, and for us there is no substitute for preparation. Your witnesses must know what you expect from them.

12. Don’t Let Your Client Usurp Your Role

Sometimes clients will try to influence counsel to advocate their case according to their theory of advocacy. They may strongly suggest that a certain witness be called, that a particular approach to cross-examination be followed, that certain questions be asked or arguments made, or that counsel play “hardball” and be uncooperative with the “enemy.”

Some clients do not understand, even after the matter has been fully discussed with them and counsel has explained that their suggestions are inappropriate tactically and/or ethically. Many clients may not understand why you are accommodating the other side by agreeing to

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facts that are not in dispute or by voluntarily producing documents. The client may not understand why counsel does not resort to the full panoply of cross-examination mechanisms. The client does not understand why counsel is not “tougher,” more abrasive, and threatening.

In my experience, good counsel have no difficulty in maintaining their professional integrity while, at the same time, attracting and retaining clients. There is plenty of room for tough advocacy while, at the same time, behaving fairly and ethically. That the forum is arbitration and not the court is no excuse for forgetting the lessons of many of the relevant rules of professional conduct. Non-lawyer presenters should not hide behind the fact that they are not legally trained when it comes to adhering to recognized ethical standards in advocating a case.

There are occasions when counsel, after endeavoring to convince the client of the inappropriateness of a suggestion with respect to the presentation of a case, will fail to do so. Counsel may then attempt to achieve a very precarious balance between proper professional conduct and giving the client what he or she wants. This being an imperfect world, I am used to hearing arguments made or approaches taken which seem to owe more to the wishes of the client to ventilate (which is, up to a point, quite appropriate) than to a professional analysis of the needs of the case. Some Counsel, however, are very adept at conveying subliminal signals which say: “I am doing this for the client. Please don‟t overreact. I‟ll get to the good stuff soon.”

13. Be Assertive, Not Abusive

An advocate is to some extent an actor and must consider what is the best affect or “face” to present to a tribunal. I am not impressed with counsel who is unremittingly abrasive and hostile to his or her opponents, to witnesses, and even to chairs. Such counsel appear to approach a hearing as if anyone associated with the other side is automatically not to be believed and not worthy of respect. It is possible, however, to be rough-minded without being hostile. It is far more effective to reserve for an appropriate time those instances when you may display higher emotion. Demonstrating a milder visage at all other times more often has the beneficial effect of disarming a difficult witness.

Arbitrators are sensitive to the problems of presenters who live in the real world and must avoid unnecessarily antagonizing those they represent (whose view of a case may be unrealistic). In order to move a case along, arbitrators will often give messages to counsel that they had better leave a particular approach if they hope to succeed. This can create a difficulty for counsels who realize that their client feels very strongly about the point. Some clients are mightily impressed by counsel who refuse to give up and continue to challenge the arbitrator with increasing vigor. It doesn‟t take long for vigor to reach a more abrasive level, and there is a temptation to curry favor with the client by becoming increasingly aggressive as the arbitrator continues to reject an argument or evidence. The most successful presenters do not permit themselves to be manipulated by clients.

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14. Taking The Rules Of Evidence Seriously

Counsel who more usually appear in court often find the conduct of an arbitration to be “too loose” in its treatment of the rules of evidence.

The fact that arbitrators may not be bound by the conventional rules of evidence in civil cases does not mean that those rules will not be followed or given significant consideration. I believe that for the most part they are honored, but in a different way. Even in some civil court cases, certain evidence that is objected to will be heard subject to weight. What this usually means is that, except in obvious cases, evidence will be heard and fuller argument, with respect to its weight, given during the course of final argument.

If you have an argument to make with respect to a rule of evidence, it will be listened to and heeded if you take the trouble to present it clearly. There is little difference between the practical impact on a judge and on an arbitrator of a common-sense rule of evidence properly explained. During the course of reviewing the evidence counsel can explain why a particular rule of evidence ought to be followed and with what result.

15. Leading With Your Chin

Life would be a lot easier for presenters if they could give evidence instead of having their witnesses do so. After all, presenters usually know what their witnesses could testify – if they only would. Unfortunately, some witnesses have difficulty in responding, as anticipated, to the usual prompts, and the presenter has to resort to more pointed prompts, which often result in objections that the questions are leading (usually where the evidence is of a contentions nature). Even where an arbitrator relaxes the rules against leading a witness, advocates should remember the tactical disadvantage of leading. The rule against leading is a common sense one: it is the witness‟s statement of facts (his or her memory, and statement of them) and not the presenter‟s that must be placed before the arbitrator. Where leading is persistent, the arbitrator is likely to apply it is deciding upon the credibility of the evidence. In applying common sense, an arbitrator is not making the hearing unnecessarily technical.

16. The Slippery Slope Of Bad Behavior

Most counsels behave civilly towards each other and towards witnesses. When one counsel does not behave civilly towards an opponent, opposing counsel may respond in kind. This is not a smart thing to do. While most chairs accept a certain amount of less-than-perfect conduct, they are appalled by displays of continuing unprofessional behavior, including attempts to gain unfair advantage through such means. As counsel faced with such behavior, it may take a certain amount of self-control to limit your response to raising an objection and not stooping to offending counsel‟s level, but it is the better course to exercise restraint.

17. The Pitfalls Of Re-Examination (Re-Direct)

A frequent dispute that can be encountered by arbitrators at hearings is whether to allow certain questions to be asked in re-examination re-direct). Sometimes it is difficult to determine if the matter in dispute had been dealt with in cross-examination and is properly the subject of re-examination. I recently was the chair in a case where the cross-examination of a witness took eight days, and it was difficult to make a speedy decision as to whether

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certain matters had been dealt with in cross-examination. The usual practice and I believe it is the practice of many chairs, is to allow a question in re-examination even when there is some doubt as to its propriety, as long as counsel for the opposite side is give an opportunity to further examine on the subject. This approach can be frustrating to counsel, but it does not create any serious injustice, as long as counsel has the right to further question the witness on the point.

In my experience as a chair over the last 30 years, counsel asking for such an opportunity has never abused this accommodation by attempting to ask a further series of questions that are of doubtful propriety. Also, I can‟t remember many occasions when a disputed question had any meaningful impact on the result.

18. Don’t Try To Take Advantage Of Inconsequential Inconsistencies

As all arguments of law are not equally persuasive, neither is all evidence that might be adduced of equal weight. For this reason, counsel has to decide how much emphasis to place on apparent inconsistencies in the evidence of a witness called by the other side. Counsel, in deciding whether is should be pursued with much vigor, has to be sensitive to the nature of the inconsistency, the reasons for its significance, and its potential for having an important bearing on the outcome. When counsel tries to make too much of an obviously minor matter, they risk trivializing their case, unnecessarily prolonging the hearing, and boring the arbitrator. At worst, such tactics may be seen as a kind of obfuscation intended to confuse the issues rather than a means of seeking a fair and sound disposition of the dispute.

19. Some Lessons From Tolstoy2

The problems that I have dealt with are not new, and I have obtained much help from County Leo Tolstoy‟s insights. Not his literary ones, but those gained by him as an arbitrator. Like many others who have a day job, Tolstoy moonlighted as an arbitrator, having been appointed by the then equivalent of the office of Arbitration (in his case the governor of Tula) as an “arbiter of the peace” to settle disputes between landowners and peasants in the fourth precinct of the district of Krapivna, when the serfs were emancipated in 1861.

After his first award, which allowed the serfs “grievance,” there was a storm of protest among the local aristocracy, who regarded him to be pro-serf, and who petitioned the authorities to have him removed from the list of approved arbitrators. Despite the opposition of his peers, he was retained on the list with the support of lieutenant-general Daragan, the governor of Tula, who spoke of Tolstoy as “a highly educated man, entirely committed to the task at hand … and much respected.3

It was said that Tolstoy took every case seriously and that it required great courage and perseverance on his part to perform his duties in the climate of hatred that surrounded him

2 With Thanks to Tolstoy by Henri Troyat, Penguin Literary Biographies (1987)

3 Id. At 301

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on both sides. “Whatever decision his sense of equity led him to adopt (he) was sure to cause dissatisfaction to both sides.” 4

Conclusion

“Experience is the name everyone gives to their mistakes.”5 This article was written in recognition of the difficulty experienced by counsel who must learn largely by doing, and with a view to highlighting some not infrequently observed problems. For most counsel, the primary teach of advocacy is expense, under whose tutelage skills are acquired – usually after much pain, suffering and embarrassment.

Learning to be a competent advocate under existing conditions is difficult because counsel very frequently learn mostly through unsupervised experience. This is not to deny the assistance given to counsel by colleagues and mentors, and sometimes by chairs. Nor does it overlook the knowledge that can be gained from attending lectures and seminars and reading the many fine guides on the art of advocacy.

However, unless a more comprehensive mentoring program is instituted, the progress of counsel towards professional proficiency will continue to be more painful than it ought to be. Perhaps it is time to consider a program where counsel could inexpensively videotape their cases, without the need for an operator or other production assistance. With the cooperation of organizations such as the American Arbitration Association, experienced counsel could serve as ongoing mentors to review portions of the tapes from time to time and offer suggestions that would improve the quality of case presentation. Because the process would be ongoing, good practices could be reinforced and faulty ones discouraged. To see oneself, warts and all, is never pleasant. I believe that the rewards of doing so will make it worthwhile. Those who present cases at arbitration would not be the last ones to benefit from this technology as an aid to reviewing real life performance.6

4 Id

5 Oscar Wilde, Lady Windemere’s Fan, Act 3

6 See Gorsky, “A Modest Proposal for Videotaping Actual Cases as a Method of Advocacy Training,” 23 The Law Society of Upper Canada Gazetta 82 (1988)

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Persuading the Arbitrator

By Luella E. Nelson, Arbitrator, Mediator, and Factfinder Portland, Oregon and Oakland, California

Introduction

ersuading the arbitrator requires the advocate to know what s/he must prove – both the burden of proof that must be met and the legal elements of the particular case to be proven. These issues will be discussed in the first section of this paper. Persuading the arbitrator also

required the advocate to know how to present evidence persuasively – i.e., how to prepare and present evidence. The “Practice Tips” section of this paper will discuss these issues for each step of the hearing. Reading and using these materials will not turn a novice into a skilled advocate; only experience can do that. The materials may help avoid some of the more common errors of advocacy and acquaint the reader with some of the tools used by experienced advocates.

I. BURDENS OF PROOF

The burden of proof consists of both the “burden of going forward” (that is, putting on some evidence) and the “burden of persuasion” (that is, putting in enough evidence to persuade the decision-maker – sometimes known as the “ultimate burden of proof”). The burden of proof does not necessarily determine which party puts on its evidence first. Both parties will have the opportunity to present their evidence, and in some cases it makes more sense to have the party with the most knowledge go forward first. In preparing and evaluating your case, consider whether it is desirable to go forward first on an issue even where the burden is on the other party.

A. Contract Interpretation Cases

Normally, the party who initiated the grievance bears both the burden of going forward and the burden of persuasion. However, if the other party asserts an affirmative defense (such as greater ability in a seniority case) or a procedural bar (such as arbitrability), the burden as to that defense or bar is with the party asserting it.

B. Discipline And Discharge Cases

Different arbitrators formulate the burden of proof differently. Some arbitrators say the Employer has the burden of proof, because it initiated the action (the discipline or discharge) that changed the existing conditions. Others say the Union has the burden of proof but meets its burden by contractual language requiring „cause” or, where such language is missing, by a presumption that employment decisions will not be arbitrary, capricious, or discriminatory. Regardless of where the arbitrator places the ultimate burden of proof, it is quite common to require the Employer to go forward first, because the Employer is the party with the knowledge of the reasons for the discipline. The burden of rebutting those reasons and/or proving mitigating circumstances rests with the Union.

P

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II. STANDARDS FOR CONTRACT INTERPRETATION7

The standards for interpreting contracts are well established and followed by the vast majority of arbitrators. If contract language is clear and unambiguous, the clear meaning ordinarily must be applied, even if the result seems harsh, absurd, or nonsensical. Language is ambiguous if plausible contentions may be made for conflicting interpretations of the language. An ambiguity may be “patent” (obvious on its face” or “latent” (apparently clear, but unclear when an effort is made to apply it). The Arbitrator may find the language clear even where one or both parties consider it ambiguous. The primary aim is to ascertain and give effect to the parties‟ mutual intent.

A. Interpretations Of Ambiguous Language

Where the language is ambiguous, arbitrators may apply rules of construction largely borrowed from the courts. The particular rule(s) applied depend on the circumstances. The most common ones are:

1. Interpretation in Light of the Law

If two reasonable interpretations are possible, one making the agreement lawful, and the other making it unlawful, the lawful interpretation will be used.

2. Normal and Technical Usage

Words are given their ordinary and popularly accepted meaning, absent evidence they were used in a different sense or that the parties intended some special colloquial meaning. Dictionary definitions may be helpful.

Trade or technical terms are interpreted in a trade or technical sense unless clearly used otherwise. Terms which are not characteristically trade or technical terms will be construed in their natural, usual sense, unless the contest indicates otherwise.

Generally, a word used in one sense is interpreted as employed in the sense throughout the contract. Use of two different terms in different contract sections may imply different meanings.

A change in language from one contract to another implies a change in meaning. Continued use of certain key terms in successive contracts suggests no change in meaning was intended.

3. Agreement to be Construed as a Whole

Meaning is derived, not merely from an isolated word or phrase, but from the agreement as a whole, including the context in which it is used.

7 The following borrows heavily from Chapter 9 of Elkouri and Elkouri, How Arbitration Works, 6th Ed.; editor-in-chief, Alan Miles Ruben (BNA, 2003), sometimes jokingly referred to as “The Bible of Arbitration.” I highly recommend that anyone who will be presenting arbitration causes regularly get this book, as it has very useful information on a variety of issues that may arise in preparing or presenting a case.

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If one interpretation of a provision would give meaning and effect to another provision, while another interpretation would render the other contractual provision meaningless or ineffective, the interpretation is used which gives effect to all provisions.

4. Avoidance of Harsh, Absurd, or Nonsensical Results

When one interpretation of an ambiguous provision would lead to harsh, absurd, or nonsensical results, while another equally-plausible interpretation would lead to just and reasonable results, the latter interpretation will be used.

5. To Express One Thing is to Exclude Another

Inclusion of one or more of a class implies exclusion of all others in that class. If certain exceptions or guarantees are included, any not included may be deemed excluded, unless the enumeration is accompanied by a statement that the clause is not to be restricted to the things specifically listed.

6. Doctrine of “Ejusdem Generis” (of the same kind, class, or nature)

Where general words follow an enumeration of specific terms, the general words are interpreted to include or cover only things of the same general nature or class as those enumerated, unless it is shown that a wider sense was intended. For example, if the agreement provides that seniority governs in all cases of layoff, transfer, “or other adjustment of personnel,” it does not require that seniority govern the allocation of overtime work, because that is not particularly similar to the examples that precede and illuminate the term “other adjustment of personnel.”

7. Specific Language Governs General Language

The theory is that the specific language otherwise would have no effect. When an exception is stated to a general principle, the exception prevails where it is applicable.

8. Construction In Light of Context

Ambiguous or doubtful words are construed in the light of the context in which they are used in the agreement.

9. Avoidance Of A Forfeiture

If one interpretation would work a forfeiture or penalty and the other would not, the interpretation which prevents forfeiture is preferred.

10. Pre-Contract Negotiations

An unclear contract term is normally deemed to have the same meaning as that given it during negotiations leading to the agreement. Relevant information about negotiations included bargaining notes, minutes, testimony regarding negotiation, and successive proposals. The inquiry is into the intent expressed by the parties, not any undisclosed intent.

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Unsuccessful proposals for particular language may indicate the contract means something other than what the rejected language would have provided. Exceptions include situations where one party proposed clarifying language and took the position that the existing language was consistent with the rejected language, as well as those where the proposal was withdrawn because the other party said a proposal was unnecessary.

11. Experience And Training Of Negotiators

The arbitrator may consider the training and experience of the negotiators. If they were laypersons untrained in the precise use of words, and if the language lacks precision, the arbitrator may refuse to apply a strict construction. If the negotiators for both parties were experts in drafting agreements, the language is more strictly construed.

12. Custom And Past Practice

Past practice is relevant to interpret ambiguous terms. The elements of a binding past practice are:

a. Known to the other party; b. In effect for a substantial period c. Consistently and uniformly applied; d. Reasonable and logical result; and e. Mutual acceptance of the practice, either by direct agreement or by failure to

object over a lengthy period to a consistent practice.

Where a practice arguably demonstrates a latent ambiguity or a specialized meaning in contract language that otherwise appears to be clear, the question is not whether the practice is “binding,” but rather whether is aids in determining if the language is ambiguous or clear. Beyond that use, a split of opinion exists among arbitrators regarding the proper application of evidence of a past practice. Some arbitrators look at past practice even where the contract language is clear, but require a greater quantum of proof as to the past practice. Under this view, the conduct necessary to modify clear language must be unequivocal, and the terms of the modification must be clear, mutual, intentional, and readily ascertainable through a fixed practice over a reasonable period of time.

Thus, in rare instances, a past practice at odds with the clear contract language may show that the parties have agreed to modify the terms of the agreement. In the more usual setting of unclear contract language, past practice serves as an aid in illuminating the parties‟ intent. However, no illumination is required where the contract language is clear. Some arbitrators will find a practice overrides clear language if it demonstrates an equally clear and unambiguous agreement by the parties to modify the written contract, i.e., if it is the functional equivalent of an amendment to the contract. An agreement to amend the written language can be found and enforced only where the nature of the agreement can be ascertained – e.g., by the parties‟ conduct over time.

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13. Industry Practice

The practice of others in the industry with the same contract language is some indication of the intended meaning of ambiguous language, but such a practice is not binding on the parties. If the practice in the particular plant and those in the industry differ, plant practices generally govern, although some arbitrators will follow a well-established industry practice in preference to a recently-established plant practice. Practices in other industries are entitled to very little weight.

14. Compromise Offers Are Not Considered

Concessions or compromise offers prior to arbitration are not admissible to interpret ambiguous contract terms. A party may offer to give up some of its rights in order to settle a particular grievance, but is entitled to a strict interpretation of its rights in arbitration.

15. Prior Settlements May Be Considered

Prior Settlements of grievances involving the same contract provisions are relevant to the interpretation of ambiguous language. However, if the language is not ambiguous, a prior settlement inconsistent with the clear language may be disregarded. Also, if a settlement is “on a non-precedential basis,” it does not govern the interpretation.

16. Interpretation Against Party Selecting The Language

The drafter of the particular clause bears the burden of making the language clear, and ambiguities will be interpreted against the drafter. However, this rule should be used only if no other rule of construction will reach a satisfactory result. It is of little utility if the parties mutually modified the initial proposal in negotiations so that both can be said to be the “drafters.”

III. JUST CAUSE FOR DISCIPLINE OR DISCHARGE

Many, but not all, contracts permit discipline or discharge only for “just cause,” “reasonable cause,” “good and sufficient cause,” or other similar formulations. Most arbitrators consider these terms to be interchangeable. Parties seldom bargain a specific definition of “just cause” themselves. As a result, “Just cause was (and frequently still is) what a reasonable arbitrator thought it was.” 8 many of the modern formulation of “just cause” focus on three primary questions:

1. Did the employee do what s/he is accused of doing?

2. Did the employee know, or have reason to know, the conduct was prohibited?

3. Was the level of discipline appropriate?

8 Brand, Ed., Discipline and Discharge in Arbitration, American Bar Association Section of Labor and Employment Law, p. 31 (BNA 1998)

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Did S/He do it?

Early labor arbitrators interpreted “just cause” to give substantial deference to management‟s decision. They held that an arbitrator acted as an “appellate court,” and would not set aside management‟s good faith disciplinary decision if substantial objective evidence existed at the time the employer made its decision to support that decision – even if the union could prove that the employee was factually innocent of the charged misconduct.

It was not long before many labor arbitrators found fault with this limited view of “just cause.” They concluded there was nothing “just” about being disciplined or discharged where the employee had not, in fact, engaged in misconduct. Riley Stoker Corp., 7 LA 764 (Platt 1947), marked a trend toward a “just cause” standard under which the arbitrator conducted a de novo hearing including, particularly, a determination of whether or not the employee actually “did the deed.” That more demanding standard has become the norm in labor arbitration. An exception is where the parties have contract language limiting the arbitrator to an appellate role. Arbitrator Carroll R. Daugherty articulated the meaning of “just cause” under such restrictive language in Grief Bros. Cooperage Corp., 42 LA 555 (1964) by formulating his famous “Seven Tests.”9

Daugherty‟s “Seven Tests” can be useful as a framework within which to develop and test the theory on which a grievance might be presented. They are helpful in pointing out possible procedural issues that could avoid arbitrating the merits of the discipline. They are less helpful in focusing attention on problems of proof of wrongdoing. Questions 3-5 of Daugherty‟s “Seven Tests” do address the investigation and proof problems, but only to the extent that they reflect the adequacy of the investigation and decision-making, not the factual guilt or innocence of the employee.

Other arbitrators use formulations of “just cause” which focus more on the sufficiency of the proff of wrongdoing. Early arbitrators who made a de novo review of discipline and discharge decisions found it unnecessary to address due process, perhaps because they believed a finding for the employee on the merits would remedy any procedural defects. In more recent years, arbitrators‟ decisions and scholarly articles have suggested that due process concerns remain relevant to “just cause,” particularly in the public sector where employees have constitutional due process rights.

9 Over the years, Arbitrator Daugherty added numerous refinements, cautions, and exceptions to the “Seven Tests.” The more-fully-developed version of Daugherty‟s “Seven Tests,” as reproduced in Whirlpool Corp., 58 LA 421 (1972), is as follows:

1. Did the company give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee‟s conduct?

2. Was the company‟s rule or managerial [order] reasonably related to (a) the orderly, efficient, and safe operation of the company‟s business and (b) the performance that the company might properly expect of the employee?

3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

4. Was the company‟s investigation conducted fairly and objectively? 5. At the investigation did the company „judge” obtain substantial and compelling evidence or proof that the employee

was guilty as charged? 6. Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees? 7. Was the degree of discipline administered by the company in a particular case reasonably related to (a) the

seriousness of the employee‟s proven offense and (b) the record of the employee in his service with the company?

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Did S/He Know It Was Wrong?

Questions 1-2 of Daugherty‟s “Seven Tests” address whether the employee knew the behavior could lead to discipline. In most cases, employees gain such knowledge either through workplace rules or by receiving lesser corrective action in the past. Some conduct is so obviously wrong that any employee knows, or should know, that it will lead to discipline (the “any damn fool rule”). Familiar examples include fighting on the job and stealing from the employers.

An area of frequent dispute is off-duty conduct – often, criminal activity or substance abuse. Most arbitrators require that there be some nexus between that conduct and the job before an employer can discipline or discharge the employee. The most common forms of nexus are where the conduct harms the employer‟s reputation or other business interests, affect the employee‟s ability to perform his job, or cause other employees to refuse to work with the offender. Where public employment is involved, nexus is more likely to be found where the nature of the off-duty offense is related to a public safety employee‟s duties or affects the employer‟s legitimate government interests.10

Penalty For Proven Misconduct

Daugherty‟s questions 6 and 7 address the penalty. Many arbitrators defer to management‟s determination of the penalty for admitted or proven misconduct, so long as the penalty is within the “range of reasonableness.” Other arbitrators apply a less deferential standard, asking whether the penalty is appropriate in view of the practices of the industrial community as a whole, as set forth over many years of management-labor practice and arbitral review. Most arbitrators recognize a distinction between summary discharge offenses and offenses requiring progressive discipline, summarized by one arbitrator as follows:

Offenses are of two general classes: (1) those extremely serious offenses such as stealing, striking a foreman, persistent refusal to obey a legitimate order, tec., which usually justify summary discharge without the necessity of prior warnings or attempts at corrective discipline; (2) those less serious infractions of plant rules or of proper conduct such as tardiness, absence without permission, careless workmanship, insolences, etc., which call not for discharge for the first offense (and usually not even for the second or third offense) but for some milder penalty aimed at correction.11

Due Process: The Public Sector Factor

Once arbitrators began reviewing factual guilt or innocence, question such as the adequacy of the investigation and the employee‟s opportunity to respond drew less attention in the private sector. Those questions remain significant for public employees of constitutional due process rights.

10 It is worth reading the many exceptions and cautions contained in the opinion portion of the case, including the notes (2-5 per test) that accompany that version of the 7-tests. A discussion of the application of these tests may be found in Adolph M. Koven and Susan L. Smith, Just Cause: The Seven Tests (Coloracre Publications, Inc. 1985).

11 Huntington Chair Corp., 24 LA 490 (1955)

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Due process rights for non-probationary public employees include an opportunity to respond orally or in writing to the charges (a Loudermill hearing) after notice of the proposed discipline are based.12 A Loudermill hearing gives the opportunity to refute the charges or offer mitigating evidence before discipline is imposed. In the language of the court, the hearing “need not definitely resolve the propriety of the discharge.” Rather, its focus is on whether there are “reasonable grounds to believe that the charges against the employee are true and support the proposed action.” This pre-disciplinary hearing is coupled with the right to a full evidentiary hearing after disciplinary actions has been taken.

Practice Tips

I. PRE-ARBITRATION CHECKLIST

Investigate the grievance:

Interview witnesses and review any documentary or physical evidence

Read the minutes (if any) of earlier grievance steps

Read the contract and, where applicable, work rules ­ Read both current and former versions ­ Make sure you have the right version for the hearing

Look for relevant earlier arbitration awards on the disputed section

Develop your theory of the case

Identify the witnesses and documents needed to prove your theory

Subpoena the witnesses and documents you will need, well in advance

If possible, reduce the number of witnesses and documents by agreeing to stipulate facts (see “Checklist for Pre-Arbitration Meetings with the Other Party”)

Prepare your witnesses to testify

(See “Instructions to Witnesses”)

Prepare your opening and closing arguments

(See “Opening Statements”)

12 Cleveland Board of Education V. Loudermill, 470 U.S. 532, 105 S. Ct. 1487 (1985); see also Arneit v. Kennedy, 416 U.S. 134 (1974). Similar due process rights for public employees have also been articulated in some states. See. E.g. Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975), and Tupper v. Fairview Hospital, 276 Or 657, 556 P2d 1340 (1977). Some state courts have devised further refinements of the pre-termination obligation. For example, if a California public sector employer deprives the employee of an opportunity to respond by introducing some of the evidence against the employee only in the post-termination hearing, the discharged employee is entitled to back pay for the period between the discharge and the date a proper hearing is provided. Barber v. State Personnel Board, 18 Cal.3d 395 (1976). This “back pay but no reinstatement” remedy is awarded less frequently in the private sector.

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Make readable copies of documents for everyone, including the arbitrator and the witness

If a document simply cannot be copied readably, prepare a typed transcript of it to be introduced with it at hearing.

Find a good hearing room

Well lighted

Well ventilated

In a quiet room

Large enough to hold everyone who must be present at the hearing

Capable of being set up so everyone can see and hear

If necessary, with adjacent space for sequestered witnesses

Arrange for a court reporter or ask the arbitrator to do so

II. CHECKLIST FOR PRE-ARBITRATION MEETINGS WITH THE OTHER

PARTY

Work out stipulated issue(s)

Practice Tip: Do not bother proposing “loaded” issue statements that pre-judge the case. The other side probably will not agree to them; if you leave the formulation of the issue(s) to the Arbitrator, s/he is unlikely to frame it that way; and you will waste time arguing instead of proving your case.

Practice Tip: It is far better to have an issue statement that you are a little unhappy with, but that succeeds in presenting the issue(s), rather than have each side propose separate issue statements and leave the Arbitrator to formulate the issue(s). The lack of a stipulated issue makes it difficult to rule on relevance objections, and often leads to a longer and less focused hearing.

Practice Tip: Where possible, phrase the issue(s) with language drawn from the Agreement. A simple way of doing this is, “Did the employer violate Article [] of the agreement (when it…]; and, if so, what is the remedy?” The usual issue statement for a discipline or discharge case is “Was the [discharge] [suspension] [reprimand] [on {date}] for just cause; and, if not, what is the remedy?”

Explore whether any procedural issues exist

Work out stipulated facts to the extent you can

Practice Tip: Many arbitrators will take the case under submission solely on stipulated facts and exhibits, without an actual hearing. This can save a day or more of arbitrator and court reporter fees, if the parties agree on the facts but not on the conclusions that should be drawn from those facts. Explore this option early with the other side and the Arbitrator.

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Work out which exhibits may be admitted without objection, which require foundation, and

which require the other side to review the underlying documents. As to the last group, review

the underlying documents and work out their admissibility before the hearing

Practice Tip: Unless you are reserving a document as a “bombshell,” attempting to work out its admissibility in advance saves you from learning at the hearing that you cannot authenticate a document you thought would not be disputed. Since arbitration should only occur where the parties are unable to resolve the case themselves, “bombshell” evidence should be very rare. When a party introduces a “bombshell,” arbitrators often are open to motions to continue the hearing until the surprised party has the opportunity to investigate and respond.

Confirm the results of your meetings in writing

Submission agreement

Stipulated issue(s)

Stipulation of facts

Letter(s) confirming discussions and agreements regarding admissibility of documents

III. INSTRUCTIONS TO WITNESSES

Tell the truth, even if you think it hurts the case

Answer the questions being asked

If you don‟t understand the question, ask to have it re-phrased or ask for definitions of unclear words or phrases

If you don‟t know the answer, or are uncertain, say so

Don‟t guess on details (dates, distances); estimate them if you can

Don‟t volunteer more information than the question asks for

Don‟t let ambiguities and factual assumptions in the questions slip by ­ “When did you quit beating your wife?” assumes you (a) have or had a wife, (b) used

to beat her, and (c) quit beating her. If only one or two of those is true, make sure it gets clarified.

Wait until the question is completed before starting your answer

If there is an objection, do not answer the question until the arbitrator has ruled on the

objection

Answer with facts

Who was involved in the event?

What happened (what you saw, smelled, tasted, heard, did, said)?

When it happened

Where it happened

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Avoid answering with opinions, feelings, and assumptions

“I believe,” “I think,” “he implies,” “she indicated,” “they were trying to”

Don’t argue, get angry, joke, make wise-cracks, or exaggerate

Ask for a break if you are tired, uncomfortable, or upset

Keep your hands away from your face and mouth, and speak loudly enough to be heard

Say “yes” or “no”, not “uh-huh” or “unh-uh,” and don’t nod your head or use gestures as

answers

Show up on time, sober and drug-free, and dressed neatly and cleanly

Don’t chew com or smoke at the hearing

If asked whether you have spoke with the attorney or other advocate about your testimony,

answer honestly that you have. We would not ask you to testify if we did not know what you

knew about the case. If asked whether you were told what to say, answer honestly that you

were told to tell the truth.

IV. OPENING STATEMENTS

The purpose of an opening statement is to give the Arbitrator your idea of what the case is about. Except where the Arbitrator has been on your panel for years, the Arbitrator comes into the room as the person least knowledgeable about your specific contract and workplace. The opening statement begins the process of educating him/her about those matters and the dispute that brings you to arbitration. It also prepares him/her to make procedural or evidentiary rulings.

The opening statement is not the place to go through an exhaustive summary of the evidence. It should give a “whiff of the perfume” of the case, not dump the whole bottle. A good opening statement alerts the Arbitrator, in an organized fashion, to the kinds of issues that you expect to arise:

Relevant contractual provisions and workplace rules

Arbitrability disputes

Contract interpretation issues

Credibility disputes

Documentary issues

Factual disputes – and facts that are not in dispute

“Past practice” and similar issues

The best way to plan an opening statement is to plan your closing argument or brief. That is also the best way to plan your presentation of the case. If you cannot write your closing argument or brief, you do not know enough about your case to go to hearing.

Practice Tip: Regardless of whether or not you have a court reporter, you should speak slowly and distinctly. The court reporter needs to become familiar with your speech patterns; the Arbitrator needs to do that and to take in all this information for the first time.

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Practice Tip: It can be helpful to have a written opening statement to give to the Arbitrator. It is not helpful to read it into the record at break-neck speed. If the parties have not agreed to provide written opening arguments to the Arbitrator before the day of hearing, you should suggest offering them to the Arbitrator and each other at the start of the hearing and taking a break so the Arbitrator can simply read them. It is then unnecessary for you to read them into the record.

Practice Tip: KISS (Keep is Simple, Sir [or sister]). You have the rest of the hearing to go into the complications through testimony and exhibits. Time is not on your side.

Practice Tip: Rarely, if ever, withhold “bombshells” from your opening statement. If you have a bombshell, you usually should have used it to settle the case. Similarly, it is best to bring out and deal with known weaknesses in your case. The other side knows them anyway, and this is your chance to explain why that does not mean you should have settled. It is often best to do your opening statement up front, even if you are not the moving party, so your opponent need not bring back witnesses to rebut small unanticipated points.

V. DIRECT EXAMINATION

Direct examination of a witness is difficult for both the advocate and the witness, because is calls for a style of communication that is unnatural. Most people, in ordinary conversation, do not answer the precise question being asked and stop talking. However, that is the most persuasive direct testimony. That is why is best to avoid leading questions and use narrative testimony judiciously, even if your opponent does not object. Your goal should be to present information in manageable bits, organized in a logical sequence.

Direct examination should allow the Arbitrator to “see” the event being described. The more details, the more likely it is that you will succeed in this aim. For example, if bargaining history is being introduced to illuminate unclear contract language, it is not persuasive to have a negotiator simply testify, “We discussed it several times and eventually agreed that…” If is was clear what the parties agreed, you would not be in arbitration. It is far more persuasive to have the negotiator answer specific questions such as: Who made which proposal? When were the proposals discussed? What was said by each side on each occasion regarding each proposal? Did the parties talk about situations where the language would and would not apply? Even if they are not exactly like the situation at issue, examples the parties themselves raised shed light on what they had in mind.

Practice Tip: Use the simpler of two possible words or phrases. Many witnesses do not understand “prior to” and “subsequent to;” use “before” and “after.” If you discover mid-examination that the witness thought “prior to” meant “after,” get it on the record that the witness was confused, then go back through any questions and answers that might have been affected by that misunderstanding.

Practice Tip: Beware of the double and triple negative. (“Isn‟t it true that you did not talk again about the emergency leave proposal until November 17?”) Most of them are leading, and a “yes” or “no” answer to such a question is inevitably vague. If you stray into such a question, make sure your next question causes the witness to clarify the answer. Some, but not all, arbitrators will do it if you fail to do so. Those who do not may give the answer the reasonable interpretation that is most damaging to your case.

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Practice Tip: Avoid superfluous phrases in questions. “What, if anything, happened next?” means the same this as “What happened next?” “Did there come a time when you…?” means the same thing as “Did you…” The shorter the phrase avoids wasting time and confusing the witness.

VI. LEADING QUESTIONS

A leading question is one which suggests the answer you are seeking. (“Did Mr. Jones say the Union agreed that supervisors could do bargaining work?”) A leading question can almost always be answered “yes” or “no.” However, not every question that can be answered “yes” or “no” is leading. “Did Mr. Green have anything in his hands?” is a non-leading question because it does not suggest the answer.

Except on preliminary matters, direct examination should avoid leading as much as possible. There are at least three reasons why leading questions are bad strategically, as well as objectionable.

1. The advocate, rather than the witness, is testifying. Unless the advocate is more knowledgeable about what happened, this can give inaccurate or incomplete information to the Arbitrator. If the advocate is the more knowledgeable person in the room, the advocate should be the witness. If not, the witness should testify.

2. A more practical problem is that the Arbitrator is taking all this information in for the first time. At least in theory, the Arbitrator does not know whether your witness will answer “yes” or “no” to a leading question. In taking notes, the Arbitrator cannot be sure whether the question is going to lead to an answer that is factually significant to this case.

3. It makes your witness look coached. If there is a credibility dispute, the Arbitrator‟s basis for evaluating your witness‟s credibility includes the knowledge that the witness could not tell the story without your assistance.

VII. NARRATIVE TESTIMONY

A narrative question asks the witness to describe a lengthy event without development through successive narrow questions. Most arbitrators permit it. However, it should be used only after a proper foundation has been laid for the question.

For example, a narrative of a conversation should be preceded by information about the date, approximate time, place, and participants. A narrative of an observed event should be accompanied by information regarding where the witness was, the date, the approximate time, the identification of any others in the vicinity, and the presence or absence of any factors that could have affected the ability to observe accurately (e.g., lighting, fog, visual obstructions, or noise).

Narrative testimony can waste time if it goes beyond the matters that are relevant to the case at hand. On the other hand, it may omit important matters. If it is possible to break the story up into logical segments through focused questions, it is usually more persuasive to do so.

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VIII. OBJECTIONS

Plan your presentation to tell your version of the story coherently and in a logical sequence, with few interruptions in the flow of the story. The object in direct examination is to put question after question in an unobjectionable manner, so your opponent has no excuse to interrupt your story. If there are objections, your task is to get on with your story, even if you lose on that particular objection. Therefore, the best response to an objection is usually an immediate offer to re-phrase the question. Lengthy argument on the objection is counter-productive. It is almost possible to get the same information in with a different question or set of questions.

There are two reasons to make an objection:

1. To keep out objectionable evidence that will hurt your case or unduly prolong the hearing with information that is of no arguable relevance to either party‟s theory of the case. There is little point to objecting to objectionable evidence that does not hurt your case or unduly prolong the hearing. Strategically, you:

a. Let it go on for a while, perhaps reminding the Arbitrator and your opponent it is objectionable (leading, hearsay, of questionable relevance, etc.)

b. When it may hurt you, comment you have tried to avoid disrupting the hearing with excessive objections, but you really must object to prolonging the hearing with such irrelevant or cumulative evidence; to the leading nature of the examination, etc.

2. To “wake up” the witness (used sparingly, when the witness appears to be answering too quickly, without listening to the question or thinking about the answer). The risk in making such an objection is that you may appear to be coaching the witness. It should therefore be done only as a last resort. A good alternative is to ask to hear the question again, as a reminder to the witness to listen to the question. That strategy should also be used sparingly.

How to make an objection:

1. Keep it short and to the point

2. Learn the buzzwords for some of the common objections: a. Irrelevant b. Lack of foundation c. Argumentative d. Assumes facts not in evidence e. Calls for an opinion f. Nonresponsive

A few other points to keep in mind:

The Arbitrator wants to hear and understand the story from each side – and to finish the hearing within a reasonable time. Objections over petty evidentiary points, particularly on factual matters that

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are unlikely to affect the ultimate decision, are counterproductive. The interrupt the story, take additional hearing time, and may also require the Arbitrator to spend more time (and, therefore, more of your client‟s money for study and writing fees) putting together a coherent description of the evidence for the Decision.

Most rules of evidence are intended to ensure that the most reliable evidence is presented. An objection to a technically-objectionable bit of evidence often simply prompts your opponent to put I the evidence in a more persuasive fashion. While that may aid in the pursuit of truth, it may not aid your case. Also, most arbitrators do not apply the rules of evidence strictly. If you act as if you expect the rules of evidence to be applied strictly, you will be displaying your ignorance of arbitration practice with the rare exception of the contract that requires the strict application of the rules of evidence).

It is desirable to create the impression that you have nothing to hide – indeed, that you are in pursuit of the truth about what actually happened. Premature objections and quibbling over minor point create the opposite impression. Incidentally, it is not persuasive to keep reminding the arbitrator throughout the hearing, on each objection, of how much you desire to get the truth in.

PracticeTip: Do not attempt to use an objection to block the introduction of unobjectionable evidence that harms your case. It won‟t work in most cases, and it only underscored the significance of that evidence.

Practice Tip: Once the Arbitrator has ruled on an objection, don‟t continue to debate the point. If the ruling excluded evidence you sought to introduce, find an unobjectionable way to get the information in, or make an offer of proof and get on with your story. If the ruling admitted evidence you sought to exclude, start planning a way to neutralize that evidence – either with other evidence or with a theory that makes the evidence harmless.

IX. CROSS EXAMINATION

Cross examination is easy to over-do, but difficult to do well. It is vital to keep your theory in mind when doing cross. For example, if the other party calls a witness who seems to be very vulnerable to cross examination, but whose testimony does not harm your theory, that witness is best dealt with by allowing him/her to leave the stand without cross examination. Put another way, do not bother tearing apart a harmless witness on cross, lest you prompt that witness to give additional testimony that does hurt your theory. It is always acceptable to say “no cross.”

Practice Tip: Perry Mason was fiction. The other side‟s witnesses usually are not motivated to testify favorably to you case, nor are they likely to break down and confess under cross examination. If you can put the evidence in through your own witnesses, who are motivated in your favor, do it.

In an excellent series of videotapes and materials, the late Irving Younger covered the many aspects of trial technique. His coverage of cross examination was particularly compelling. I highly recommend that anyone interested in mastering the art of cross examination rent or buy the videotape and study it. Meanwhile, the following reproduces the most memorable part of those materials.

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THE TEN COMMANDMENTS OF CROSS-EXAMINATION13

Professor Younger has Ten Commandments for conducting a reasonably competent cross-examination. If you violate these commandments, you will instantly regret it. The question will blow up in your face.

These commandments in no special order are as follows?

1. Be Brief

Make your cross-examination short and distinct. You should never make more than three points about a witness‟s credibility. It is better if you only make one or two points.

The first step to persuasion is having the jury remember. If you are brief, the jury will remember. The jury is required to learn most of its information aurally (through the ears), whereas they normally acquire information through their eyes. Keep the cross-examination brief so that the jury will remember the testimony.

2. Short Question, Plain Words

Do not use legal words and phrases. Use plain English and the simplest words possible. Otherwise you run the risk of the jury not understanding the questions.14 The jury may be smart but it may not be sophisticated.

3. Never Ask Anything But A Leading Question

A leading question puts words in the witness‟s mouth by suggesting the desired answer. The law of evidence prohibits leading question on direct examination, [with some exceptions]. The law of evidence does not say anything regarding the form of questions on cross-examination. The craft of trial advocacy, on the other hand, has enormous interest in the form of questions on cross-examination.

You should put words in the witness‟s mouth on cross-examination to make the witness say what you want him to say, not what he wants to say. The hallmark of an effective cross-examination is when a witness never says anything beyond “yes” or “no.”

4. Ask Only Questions To Which You Already Know The Answers

If you do not know the answer to a question, or have a very good idea of the answer, do not ask the question.

If you do not know everything there is to know about the case, you should not be trying it.

There are two exceptions to this commandment:

13 Trial Techniques with Irving Younger (National Practice Institute), Copyright 1978. Footnotes omitted. Substitute the word “arbitrator” for the word “jury,” and “opinion” for “verdict,” and these commandments still apply.

14 [I would add that the witness also may not understand the question. LEN]

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a. You may ask a question if you do not care what the answer is, but be sure you do not care what the answer is.

b. If there is an important question for which you do not know the answer, ask apparently innocuous question to determine the answer.

If there is an important question you want to ask, but you do not dare risk an unfavorable answer, you should develop the knack of escalating your knowledge by asking apparently innocuous question on cross-examination. The significance of these questions is to inform yourself what the answer to the important question will be. Nobody should know what you are doing, so that you can drop the important question when you realize the answer will be unfavorable.

5. Listen To The Answer

Every so often you will get a spectacularly favorable answer which contradicts the rest of the testimony in the case, including the testimony of this witness. Allow some energy to listen to the answers of your questions so that you hear this type of answer when it occurs.

6. Do Not Quarrel With The Witness

If the witness gives an answer inconsistent with the rest of the evidence, drop that line of question or sit down. Argue that answer and the inferences from that answer in summation, but do not argue with the witness about the answer. The witness probably does not know he gave a favorable answer, and the effect of your quarreling wit hthe witness will cause him to withdraw or explain away that answer.

7. Do Not Permit A Witness On Cross-Examination To Simply Repeat What The Witness Said On Direct Examination

It is permissible to ask the witness one or two question which permits that witness to repeat what was said on direct in order to set up for the cross-examining question. However, if you allow that witness to repeat large portions of his earlier testimony, the only thing you will accomplish is to reinforce that testimony in the jurors‟ minds.

8. Never Permit The Witness To Explain Anything

The use of only leading questions controls the witness‟s attempts to explain.

9. Avoid One Question Too Many

The difficulty is recognizing the one question too many. As soon as you ask the question, you will recognize it. Know when you have obtained everything possibly helpful from a witness and then stop.

10. Save It for Summation

This commandment is only needed in special cases whereas the other nine commandments are needed every time you cross-examine.

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The case in which the need for this commandment will arise will probably turn on the testimony of one witness, and your must make the jury disbelieve that witness. The jury may not understand what you are driving at during the cross-examination because the argument is so clever and the cross is so subtle. But the jury does not have to understand the argument at that time. In fact, it is best to leave the jury in a state of unsatisfied curiosity. Nothing will make a jury more attentive than curiosity. If the jury is left unsatisfied but you satisfy them on summation, they will be grateful to you and may manifest their gratefulness by a favorable verdict.

X. EFFECTIVE REBUTTAL

Rebuttal has a very limited purpose. That purpose is to respond to matters raised by your opponent that you have not already addressed in your case in chief. Often, it involves credibility issues. In many cases, rebuttal is unnecessary because you have prepared your case in chief so completely that you have already trumped any points your opponent can raise. In virtually all other cases, rebuttal should be extremely brief.

Rebuttal is not for the purpose of repeating the evidence from the case in chief. The Arbitrator really did hear the testimony the first time, and is not eager to hear it again. At most, a question may be prefaced by a brief reference to the prior testimony, if necessary to set the stage for that question. The Arbitrator also is not eager to hear the witnesses call each other liars. If your witness testified convincingly the first time around, leave it for your closing argument or brief. If your witness was not convincing the first time around, hearing it twice usually will reinforce the initial bad impression.

There is a strategic reason for putting as much of your rebuttal evidence as possible into your case if chief. Rebuttal often comes at the end of a long day. Everyone is tired. Witnesses are not at their best, nor can they necessarily remember what they testified that morning (or the previous day). Your questions may not be as sharp; the Arbitrator‟s had is getting tired from taking notes; and everyone is anxious to get the hearing over with and go home. It is far better to have your evidence in the record before this point. There is also a risk that a technical objection will prevail, arguing that the evidence is not truly rebuttal evidence, but should have come in as part of the case in chief. Many arbitrators permit evidence that is technically rebuttal evidence to come in with the case in chief, particularly if the advocate explains this will avoid recalling the same witness later.

Practice Tip: Rebuttal is sometimes the place for “bombshell‟ evidence, if you have a really good reason for not having used that evidence to settle the case. However, the other party may successfully seek a continuance to respond to your “bombshell.” You then have bought yourself another day of arbitrator‟s fees.

Practice Tip: Bombshells often explode in all directions. Not everyone with access to secret information keeps it secret. If your case relies on secrecy about your “bombshell,” consider the possibility that the other side may already know about it and have means of defusing it or redirecting it against you.

XI. IRRITATING HABITS TO AVOID

Your aim is to have the Arbitrator focus on the story, not on you. You should therefore avoid mannerisms that call attention to you or distract attention from the witness. Responding to answers with “OK” or “I see” becomes distracting after the tenth or eleventh repetition.

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It is unnecessary to thank a witness (yours or theirs), even if you think you really scored a point with that answer. If you wish to emphasize a witness‟s answer, use it in the next question.

Q: What did Mr. Smith say to you about proposed Article X? A: He said the Union was withdrawing that proposal. Q: When he said the union was withdrawing that proposal, what did you say? A: I said, “Great, we have a deal. Let‟s wrap this up and get it printed?

XII. CLOSING ARGUMENTS

You should have planned your opening argument by planning your closing argument. If you did that, all you need to do in making your closing argument (or writing your post-hearing brief) is adjust your comments to reflect the way the evidence came in during the hearing. The closing argument or brief should remind the arbitrator of your theory of the case and tie the evidence into that theory. It should also explain why your evidence disproves your opponent‟s theory of the case.

Practice Tip: It is usually counter-productive to insult your opponent, its theory, or its witnesses. It is far more helpful to explain why that theory simply isn‟t workable, or why its witnesses must have been mistake, deluded, or, as a last resort, bending the truth. Unless you have proven that a witness was lying, making that accusation will backfire on you, your witness, and your theory.

Practice Tip: Consider the possibility that you might lose, or at least might not win at all, and address that possibility in your closing argument. If your opponent is arguing for a remedy that is unworkable, illegal, or otherwise problematic, explain why that remedy is unworkable, and suggest a different remedy if the arbitrator finds in your opponent‟s favor on the merits.

XIII. DOCUMENTARY AND OTHER DEMONSTRATIVE EVIDENCE

Every document or object introduced in evidence must be capable of being authenticated – that is, shown to e what the party int4roducing it says it is – unless authenticity is stipulated by the parties. Many documents are self-authenticating. Rule 902 of the Federal Rules of Evidence requires no extrinsic evidence of authenticity for many types of documents, including such things as domestic public documents under seal, certified copies of public records, official publications, and newspapers and periodicals. Authentication not required if the document or object is not introduced in evidence. For example, notes can be shown to the witness to refresh recollection without ever establishing whose notes they are or that their contents are accurate.

Practice Tip: Where many related documents are involved, summaries of their contents should be prepared, with adequate opportunity to the other side to examine the underlying documents and compare them with the summary. If one side objects, the underlying documents may have to be introduces, but the summary helps the arbitrator analyze the case from the summarizer‟s perspective. Even if the summary is not admitted as evidence, it can be submitted as argument.

A document shown to a witness must always be first shown to opposing counsel, even if you do not plan to introduce it. When a document is used to refresh a witness‟s memory, relevant parts of it may

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be offered into evidence by the adverse party. If the witness‟s recollection still has not been refreshed even after looking at the document, but the witness testifies that the document was written at a time when the witness‟s memory was accurate, the document may be introduced as “past recollection recorded.” But that is not a very convincing way to make your case.

Documents may be introduced in evidence for a limited purpose (e.g., a compliant that prompted the employer to start an investigation, for the purpose of rebutting an argument that the employer “had it in” for the accused employee), or without limitation. Once a document is in evidence for a limited purpose, it can be considered for another purpose only if the Arbitrator so rules. Absent such a ruling, the Arbitrator is likely to ignore any argument based on a broader use of the document than that for which it was admitted.

Best Evidence

Despite what you may have gleaned from television shows about lawyers, a document is not necessarily the “best evidence.” The best Evidence Rule applies only to the contents of a document. For example, the minutes of a meeting are not the best evidence of what took place at the meeting; they are hearsay as to that issue. The posted department work rules are the best evidence of the contents of those rules (which may or may not be the same as the work rules that were actually enforced in the department.) In introducing a document, be aware of whether you are introducing it to prove the truth of its contents or merely to prove that the document says what it says.

XIV. EVIDENTIARY ISSUES15

Introduction

Like a well-written news report, evidence tells the 5 W‟s and an H: “who, what, when, where, why, and how.” Taken as a whole, it should present a clear picture of events, be consistent with your theory of the grievance, and explain any contrary evidence. Evidence may be testimony, written documents, or objects.

Except for expert testimony and some very rare exceptions, evidence consists of facts rather than conclusions. “Joe was drunk” is a conclusion. “Joe had glassy eyes, slurred speech, and unsteady gait, and the smell of alcohol on his breath – and it was 1:00 a.m. on January 1” are facts that suggest a possible conclusion that Joe was drunk. “We agreed that supervisors could do bargaining unit work” is a conclusion. “The Union‟s negotiator told me they proposed this language in agreement without position that we should be able to assign bargaining unit work to supervisors” is a fact that suggests a possible conclusion that this was the parties‟ intent.

Often, evidence need not come in as testimony. It is much more efficient to work out a stipulation of uncontested facts before the hearing. The arbitrator may also take notice of facts which are either generally known in the area (e.g., whether it is common to encounter traffic jams on the Nimitz Freeway on weekday afternoons) or capable of verification by reliable sources (e.g., the population of San Francisco in the 2000 census).

15 For an exhaustive discussion of evidentiary issues, see marvin F. Hill, Jr., and Anthony V. Sinicropi, Evidence in Arbitration, 2nd Ed. (BNA, 1990)

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The rules of evidence usually are not strictly applied in arbitration, but are a useful guideline. The purpose of evidentiary rules is to increase the likelihood that evidence is relevant and reliable – a goal shared by arbitrators.

Relevance

The Federal Rules of Evidence define “relevance” as: “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A short-hand definition is “tending to prove a material fact in dispute.” Arbitrators apply a broad standard of relevance, and most admit evidence “for what it is worth” even if they suspect they will find no use for it in making their decision. This relatively liberal approach accommodates non-lawyer advocates in arbitration and prevents fine evidentiary points from blocking the introduction of useful information.

Practice Tip: The fact that you may be able to get irrelevant evidence admitted does not mean you should introduce it. You do not get extra points for squeezing in extraneous facts and cluttering up the case. Irrelevant evidence does not advance the theory of your case and should be weeded out in favor of relevant evidence in preparing and evaluating a case for arbitration.

Practice Tip: If the arbitrator excludes evidence that you think is relevant, make an offer of proof of what the witness would have testified if permitted to do so. Your offer preserves the record and may persuade the arbitrator to change the ruling and permit the testimony.

Exclusionary Rules

Some relevant evidence is inadmissible because of policy or contractual reasons, even if it is highly persuasive. For example, if the contract provides that disciplinary records over three years old are to be purged from the file, evidence of earlier disciplinary records usually will not be admitted. Virtually all arbitrators refuse to admit evidence regarding bases for discipline that were not relied upon at the time discipline was imposed, because the disciplinary action must stand or fall on the reasons the employer actually relied on. Virtually all arbitrators also decline to admit settlement offers on the pending grievance as evidence of the merits of the grievances, because admission of such evidence tends to discourage a full exploration of settlement possibilities. However, some evidence relating to settlements may be admissible in unusual circumstances. For example, if all previous grievances of this type have been settled, the refusal to settle this one may be admissible as evidence of discrimination. In some cases, a pattern of settlements in the past may be used to clarify the intent of contract language, by showing the meaning the parties gave to it. But beware of “non-precedential” settlement language which precluded this use of prior settlements.

Practice Tip: Evidence that is otherwise inadmissible as part of your case in chief may be admissible for other purposes. The largest loophole is where the evidence is introduced for credibility purposes. For example, if the grievant falsely volunteers that s/he has never been disciplined for similar conduct, the Employer may be able to introduce a purged disciplinary record to demonstrate that the grievant testified falsely on that matter – thus suggesting that the grievant is also falsely denying the misconduct involved in the grievance at hand. It may also be admissible to show that the grievant knew of a particular rule or policy. If introducing such evidence, the advocate must be very clear (both at the hearing and in the

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closing argument or brief) that the evidence is being introduced and used only for that limited purpose.

Courts have recognized a number of situations in which a witness can refuse to disclose information even though that information is relevant to the issue. These are known as “testimonial privileges.” The best-known privileges include husband-wife, priest-penitent, and lawyer-client communication privileges, and, in criminal settings, the privilege against self-incrimination. Since an arbitrator does not have the power to compel testimony, the primary effect of recognizing a privilege is that the arbitrator will not draw an adverse inference from a witness‟s refusal to testify in these instances. The rules of evidence in many states severely limit or prohibit testimony from mediators; similarly, the FMCS prohibits its mediators from testifying about information acquired in the mediation process. Most arbitrators exclude testimony by a steward regarding prejudicial information obtained from the grievant during the course of representation.

In the private sector, the fact that the employer has conducted an illegal search does not necessarily mean the resulting evidence will be excluded in arbitration. Some arbitrators exclude evidence obtained in violation of an employee‟s right to privacy, particularly where the employee is accused of acts which also constitute a crime. It is more likely that illegally-obtained evidence will be excluded where the employer is a public agency, and therefore subject to the fourth and Fifth Amendments of the Constitution. Many arbitrators exclude stolen documents, because admission of such documents endangers the parties‟ relationship and the bargaining process. Other arbitrators admit them, because they believe the arbitrator should not try to regulate the parties‟ relationship.

Reliability

Reliability can be defined as “tendency to be accurate and truthful.” The reliability of the available evidence is a key factor in preparing and evaluating a case for arbitration.

Reliability of testimony generally boils down to a concern over the opportunity to observe; in rare cases, it may involve motivation to lie or exaggerate. Generally, testimony must be based on the witness‟s personal knowledge and must contain enough information to permit testing of the witness‟s account of the event. For example, testimony about a conversation must include “who, what, when, and where.”

Direct Evidence: Evidence which proves a claim or proposition directly; often, “eye witness” testimony – but may be written evidence or an object.

Circumstantial Evidence: Evidence which tends to establish the claim or proposition by proving one or more other facts which raise the inference that certain events took place.

Both direct and circumstantial evidence are admissible. Circumstantial evidence may be more reliable than direct evidence in some cases, because it does not rely solely on credibility or the ability to observe accurately. Where circumstantial evidence is offered, be alert to possible innocent theories which explain the conduct or explain away any adverse inferences you want the Arbitrator to draw from the circumstances. Don‟t bother using circumstantial evidence of facts so remote from the issue as to be irrelevant to the case at hand.

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Hearsay

The Federal Rules of Evidence define hearsay as “A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” An example of hearsay is testimony from Sam that “Mary said Joe did it,” introduced to prove that Joe did, in fact, do it. If the evidence is not introduced for that purpose, it is not hearsay and is probably admissible. Hearsay included testimony from a third person to whom Mary reported her alleged observations, as well as documents Mary prepared to report those observations.

The concern over hearsay is the lack of opportunity to cross-examine the person with direct knowledge of the events. Without cross-examining Mary, it cannot be determined whether Mary was in a position to observe clearly, accurately remembered what she observed, accurately described her observations, or lied about what she observed. It is also impossible to determine whether Mary actually said anything to Sam and, if so, whether Sam understood what Mary was saying and is reporting is accurately. Any ambiguities cannot be cleared up reliably.

While most arbitrators will admit hearsay evidence, the fact that it is hearsay limits the weight that can be placed on the evidence. It is therefore best not to rely on hearsay evidence to any great degree. Many arbitrators do not allow the introduction of affidavits on significant matters – because they deprive one party the right to cross-examination in a situation where careful evaluation of evidence is important – but will accept affidavits on less critical matters. For example, a written report from a transit system “spotter” that the bus driver pocketed passenger fares probably will not be admitted to prove that the drive was pocketing fares, whereas a doctor‟s affidavit regarding the date of a physical examination and the resulting findings may be admitted to prove that the examination occurred and resulted in those findings. A majority of arbitrators will admit customer or client complaints, but most will do so only as evidence that the complaints were made rather than for the truth of the matters asserted in the complaints. If your case requires that the arbitrator find the complaint was true, the customer or client should be called to testify.

Presumptions

Experience tells us that some things tend to be true more often than not. Some are so commonly true that arbitrators will presume they are true absent persuasive evidence to the contrary. These are known as “presumptions.” Virtually all of them are rebuttable, meaning the presumption disappears in the face of contrary evidence. The following are a few examples of common presumptions.

In disciplinary cases, many arbitrators resolve conflicts in testimony between the grievant and the supervisor by applying a presumption that the supervisor has no motive to distort the truth, whereas the grievant has a clear motive to do so. The theory is that a supervisor has nothing to gain by fabricating a case against a blameless employee, but a guilty employee will lie to save his/her job. The presumption may be rebutted by evidence that the supervisor had a motive to fabricate or a history of malice or ill-will toward the employee, or by other evidence corroborating the employee‟s version.

Where an employee is in possession of stolen property, most arbitrators presume that the employee was involved in the theft – particularly if the employee took no steps to advise management that the property was in his/her possession. The Union may rebut this presumption by establishing that the employee was unaware of the presence of the stolen property and that a believable alternative explanation exists for its presence.

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Most arbitrators presume that employees are aware of commonly-accepted rules (e.g., that employees should not steal from their employer, fight on the job, or be insubordinate) and rules which have been distributed generally to employees – even if the employee was not consciously aware of the specific rule at the time of the conduct.

Most arbitrators will presume that the Union is aware of matters generally known to the members, and that the Employer is aware of matters known to its supervisors.

Most arbitrators presume that facts stated in uncontested prior disciplinary warnings are correct (unless the contract precludes grievances over minor discipline).

Other common presumptions are that writings which are delivered are authorized and that correspondence which I mailed is received.

Challenging Grievance Arbitration Awards

Based on Public Policy Grounds

By: Kenneth G. Kombrink

Director of Labor and Employee Relations

University of Illinois at Chicago

May 3, 2001

Introduction

n both the private and public sectors it may be possible for an employer to challenge an adverse grievance arbitration award on grounds that the award violates public policy. This article will focus on the public sector and provide an analysis of the factors that a public employer should

consider in deciding whether or not to challenge an adverse award on this basis. Before providing this analysis, however, a discussion section will be presented tracing the development of the public policy “exception” to the general rule that grievance arbitration awards are final and binding.

DEVELOPMENT OF THE PUBLIC POLICY EXCEPTION TO THE

GENERAL RULE OFARBITRATION FINALITY

It is the well established general rule that arbitration decisions under collective bargaining agreements are final and binding. However, there are exceptions to this general rule. One such exception is known as the “public policy” exception. This exception was specifically recognized by the United States Supreme Court in 1983 in the landmark case of W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber Workers.16

The W.R. Grace case involved an arbitration award that required an employer to pay back wages to employees laid off in violation of contractual seniority provisions. The employer refused to implement the award and instead challenged the award on grounds that the award conflicted with an

16 W.R. Grace v. Local Union 759, International Union of the United Rubber Workers, 461 U.S. 757 (1983)

I

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EEOC conciliation agreement and was, therefore, against public policy. In deciding the controversy, the Supreme Court recognized the validity of the employer‟s public policy argument, but ruled that in this particular case the award did not conflict with the public policy cited by the employer. In so ruling, the Supreme Court established the principle that an arbitrator‟s award should only be vacated in those cases where two prerequisites are met. First, the public policy cited by the employer should be “well defined and dominant” as referenced to laws and legal precedents, rather than general considerations or notions of supposed public interests.17 Second, the award issued by the arbitrator must be in clear conflict with the cited public policy.18

Subsequent to W.R. Grace, the Supreme Court accepted and decided two other cases involving challenges to arbitration awards arising from disputes over provisions of collective bargaining agreements. The first of these cases was United Paperworkers International Union, AFL-CIO v. Misco, Inc.19 The most recent case was Eastern Associated Coal Corp. v. United Mine Workers of America, District 1720. In these two cases the Supreme Court reaffirmed that the “public policy” exceptions was a proper grounds for an employer to challenge an arbitration award21. In each case, however, the Supreme Court declined to vacate the arbitration award in question, noting that the public policy exception is “limited and narrow” and must satisfy the principles established in the W.R. Grace case22.

Despite the Supreme Court‟s pronouncements that the public policy exception is “limited and narrow”, federal courts have on quite a few occasions vacated arbitration awards for this reason. For example, in Amalgamated Meat Cutters v. Great Western Food Co., the Fifth Circuit Court of Appeals held that an arbitrator‟s award ordering the reinstatement of a commercial driver charged with operating a truck under the influence of alcohol violated public policy and proceeded to vacate the award23. In Iowa Electric Light and Power Company v. Local Union 204 of IBEW, the Eighth Circuit Court of Appeals refused to enforce an arbitration award ordering the reinstatement of a nuclear power plant employee who deliberately compromised the plants‟ secondary containment systems24. In reaching this result the court found a very strong public policy requiring “strict adherence to nuclear safety rules.”25 In United States Postal Service v. American Postal Workers Union, the First Circuit court of Appeals upheld the vacation of an arbitration award ordering the reinstatement of a postal employee convicted of embezzling postal funds26. In Delta Air Lines, Inc. v. Air Line Pilots Association International, the Eleventh Circuit Court of Appeals upheld that part of a district court‟s order vacating an arbitration award ordering the reinstatement of an airline pilot who flew an airplane while intoxicated on grounds that the reinstatement order contravened public policy27. In EXXON Corp. v. Esso Workers Union, Inc., the First Circuit Court of Appeals set aside an arbitration award reinstating an oil tanker truck driver who tested positive for cocaine on grounds that the award contravened public policy against employees performing safety sensitive jobs while under the influence28. In Newsday, Inc. v. Long Island Typographical Union, No. 915, the Second 17 Id. at 766 18 Id. at 771 19 United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 (1987) 20 Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 148 Led 2d354 (2000) 21 United Paperworkers at 42-43; and Eastern Associated Coal Corp., at 361 22 United Paperworkers at 45; and Eastern Associated Coal Corp. at 364 23 Amalgamated meat Cutters v. Great Western Food Co., 712 F. 2c 122 (5th Cir. 1983) 24 Iowa Electric Light and Power Company v. Local Union 204 IBEW, 834 F2d 1424 (8th Cir. 1987) 25 Id. at 1427-28 26 United States Postal Service v. America Postal Workers Union, 736 F 2d 822 (1st Cir. 1984) 27 Delta Air Line, Inc. v. Air Line Pilots Association, 861 F. 2d 665 (11th Cir. 1989)

28 Exxon Corp. v. Esso Workers Union, Inc., 118 F 3d 841 (First Cir. 1997)

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Circuit Court of Appeals upheld the vacation of an arbitrator‟s order to reinstate an employee for sexually harassing female employees29. In Russell Memorial Hospital Assoc. v. United States Steelworkers of America, the U.S. District Court of the Eastern Division of Michigan vacated an arbitration award reinstating a nurse who failed to properly administer medication to a patient on grounds that the award contravened Michigan‟s public policy of ensuring safe and competent nursing.30

State courts too have recognized the public policy exception for reviewing an arbitration award and have, on occasion, vacated or refused to enforce awards based on this exception. For example, in California the California Supreme Court upheld vacation of an arbitrator‟s award which ordered the reinstatement of an employee terminated because of her membership in the communist party.31

In New Hampshire the Supreme Court upheld the state labor board‟s refusal to implement an arbitrator‟s award ordering the reinstatement of two safety sensitive employees who tested positive for drugs.32

In Illinois the state‟s top court vacated an arbitrator‟s award reinstating a state child welfare investigator who falsified an investigation report on grounds that reinstatement violated the dominant and well-defined public policy favoring accurate and truthful documentation of child abuse investigations.33 Also in Illinois, lower appellate courts have vacated arbitration decisions on public policy grounds where arbitrators ordered the reinstatement of a health care worker who physically abused a patient34 and bus driver who on several occasions was observed driving at excessive speeds and in a reckless manner.35

In Ohio an appellate court upheld the trial court‟s vacation of an arbitrator‟s award ordering the reinstatement of a transit authority employee who tested positive for marijuana. In upholding the vacation the appellate court relied primarily on its funding that the arbitrator‟s award departed from the essence of the parties‟ contract incorporating a “zero tolerance” drug policy, but also acknowledged public policy as related grounds for vacation of the award.36

In Connecticut an appellate court upheld on public policy grounds the vacation of an arbitrator‟s award reinstating a police officer determined to be unfit for duty by the town employer.37

In New York am appellate court upheld the trial court‟s vacation of an arbitrator‟s award that refused to affirm the dismissal of a mental health worker who engaged in sexual intercourse with a patient. In upholding the trial court, the appellate court cited public policy favoring protection of the

29 Newsday, Inc. v. Long island Typographical Union, 915 F 2d 840 (2nd Cir. 1990) 30 Russell Memorial Hospital Association v. United States Steelworkers of America, 720 F. Supp 583 (1998) 31 Black v. Cutter Laboratories, 278 p. 2n 905, cert. granted 350 U.S. 816 (1955) cert. denied 351 U.S. 292 (1956) 32 Amalgamated Transit Union, Local 717, 741 A 2d 66 (1999) 33 American Federation of State, County and Municipal Employees v. State of Illinois, 173 Ill 2d 299 (1996) 34 County of DeWitt v. American Federation of State, County and Municipal Employees, Council 31, 298 Ill app. 3d. 634 (1998) 35 Board of Education of School District U-46 v. Illinois Education labor Relations Boards, 216 Ill. App. 3d 990 (1991) 36 Southwest Ohio Regional Transit Authority v. Amalgamated Transit Union, Local 627, 723 N.E. 2d 645 (1998) 37 Town of South Windsor v. South Windsor Police Union, 750 A 2d 465 (2000)

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mentally disabled as grounds for remanding the case for further proceedings before a different arbitrator to determine whether dismissal or other disciplinary action was appropriate.38

FACTORS TO CONSIDER AND EVALUATE IN DECIDING WHETHER OR

NOT TO CHALLENGE AN ARBITRATION DECISION ON PUBLIC

POLICY GROUND

Clearly, the public policy exception is a proper basis for challenging arbitration awards under public sector labor laws. If a public employer considers such a challenge, however, it is important that the public employer consult with its labor attorneys and evaluate a number of factors before proceeding. Initially, of course, it is important to determine whether the jurisdiction in which the public employer is located recognized challenges to arbitration awards based on public policy. If the jurisdiction does recognize the public policy exception, then the public employer must also determine what procedures must be followed in its jurisdiction to properly perfect a challenge on public policy grounds. This is important as the procedure will be different from state to state, or even within the same state if multiple public labor acts and boards are established and existing. For example, in Illinois under the State Labor Relations Act pertaining to state and local governmental employers, the procedure for challenging an arbitration award is to file a petition to vacate the award in state circuit court within 90 days of issuance of the award.39 Under the Illinois Educational labor Relations Act pertaining to public educational employers, however, the only way to challenge an arbitration award is for the employer to refuse to implement the award, thereby inviting the union to file an unfair labor practice charge with the labor board within 180 days of the employer‟s refusal to implement the award. Only after the labor board has issued a final order with respect to the charge may judicial review be invoked.40

Once the public employer has ascertained that its jurisdiction recognizes the public policy exception and becomes familiar with the procedures to perfect such a challenge, then the most important factor to consider in deciding whether or not to proceed with a public policy challenge in a particular case is the “likelihood of prevailing” with the challenge. The “likelihood of prevailing” is, of course, dependent in large part on the facts of the particular case and the standard of review applied by the reviewing body in the public employer‟s jurisdiction. The standard of review will more than likely be similar to the standard set by the U.S. Supreme Court in W.R. Grace, but there may be some slight variations. For example, in Illinois the courts and public sector labor boards apply the two part W.R. Grace standard (i.e., existence of a well defined and dominant public policy must be established and the arbitrator‟s award must be in direct conflict with that public policy), but then go a bit farther by examining the remedy ordered by the arbitrator to determine whether the remedy is rational and supported by the evidence. In this regard, see Chicago Fire Fighters Union Local No. 2 v. City of Chicago wherein the Illinois First district appellate Court vacated an arbitrator‟s award ordering the reinstatement of several fire fighters charged with serious policy violations. In vacating the award the

38 Ford v. Civil Service Employees Association, Inc. 464 N.Y.S. 2d 481 (1983)

39 Department of Central Management Services v. AFSCME, 284 Ill. App. 3d 9663 (1996)

40 Board of Education of Community School District No. 1, Coles County v. Compton, 123 Ill. 2d 216 (1988)

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court found that the hearing record failed to support the arbitrator‟s conclusion that reinstating the employees would not pose a further danger to the public.41

In any event, the odds of prevailing and having a labor board or court vacate an arbitration award on public policy grounds are quite low due to the customary deference given to arbitration awards and the difficulty employers have in meeting the requirements established by the courts and labor boards to vacate such awards. Only a small percentage of employer challenges are successful.42

A general review of challenges to arbitration awards on public policy grounds suggest that an employer‟s success or failure is tied to factors such as:

A. Extent of Governmental Regulation Involved

A court is more likely to vacate an arbitration award ordering the reinstatement of an employee in heavily regulated industry such as aviation or nuclear power, than one involving a lesser regulated industry. Contrast in this regard Delta Air Lines Inc. v. Air Line Pilots Association International (arbitration award ordering the reinstatement of an airline pilot who was under the influence of alcohol during a flight vacated on public policy grounds)43 with First National Supermarkets, Inc. v. Retain, Wholesale and Chain Store food Employees Union Local 388, AFL-CIO (arbitration award ordering the reinstatement of a supermarket employee who came to work under the influence of drugs upheld by court despite employer‟s public policy argument).44

B. Whether Misconduct of the employee Threatens the Welfare of the Public

A court is more likely to vacate an arbitrator‟s award involving reinstatement of an employee whose misconduct threatens the welfare of the public, than an award involving employee misconduct threatening only the welfare of the employee and/or immediate coworkers. Contrast in this regard Iowa Electric Light & Power Co. v. Local Union 204 of IBEW (arbitration award ordering the reinstatement of a nuclear power plant worker who violated safety rules vacated)45 with Monroe Auto Equipment Co. v. International Union, United Automotive (arbitration award upheld where arbitrator ordered the reinstatement of an employee who placed only himself in danger by his misconduct).46

C. Whether the Conduct of the Employee Involves Illegal or Intentional Acts Versus Simple Negligence

Courts are more likely to vacate an arbitrator‟s award ordering the reinstatement of an employee who is guilty of an illegal act or intentional misconduct than an award involving reinstatement of an employee who is simply negligent. Contrast in this regard United States Postal Service v. American Postal Workers Union (vacation of arbitration award ordering the reinstatement of a postal worker who embezzled money upheld)47 with Shopman‟s Local

41 Chicago Fire Fighters Union Local No. 2 v. City of Chicago, 735 N.E. 2d 108, 315 Ill App 3d 1183 (2000) 42 See vacating on public policy grounds arbitration awards reinstating employees, Andrew M. Campbell, 142 ALR Fed 387 43 Delta Air Lines, Inc. v. Air Line Pilots Association, 861 F 2d 665 (11th Cir. 1989) 44 First national Supermarkets, Inc. v. Retail, Wholesale and chain Food Store Employees Union, 118 F 3d 892 (2nd Cir. 1997) 45 Iowa Electric Light and Power v. Local Union 204, IBEF, 834 F. 2d 1424 (8th Cir. 1987) 46 Monroe Auto Equipment Co. v. International Union, United Automotive, 981 F2d 261 (6th Cir. 1992) cert. den 508 U.S. 931

47 United States Postal Service v. American Postal Workers Union 736 F. 2d 822 (1st cir. 1984)

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539 v. Mosher Steel Co. (arbitration award ordering the reinstatement of a worker involved in 22 “accidents” at work site upheld).48

D. Whether the Employee Appears Capable of Remediation

A court is more likely to vacate an arbitrator‟s award ordering the reinstatement of an employee who does not appear to be capable of being remediated, than one who does. See in this regard Illinois Nurses Association v. Board of Trustees of the University of Illinois wherein the Illinois First District Appellate Court upheld in one case the vacation of an arbitration award ordering the reinstatement of a nurse found guilty of “repeated” violations of nursing standards, but then affirmed a reinstatement order related to a second nurse where the hearing record suggested the nurse would not again engage in similar misconduct.49

E. Seriousness of Misconduct

A court is more likely to vacate an arbitration award ordering the reinstatement of am employee involved in misconduct considered “serious” than one involving and employee guilty of a less serious offense. See in this regard Matter of Grace Plaza of Great Neck, Inc. wherein a New York court declined to vacate an arbitration award ordering the reinstatement of a health care worker charged with patient abuse where the employee‟s misconduct consisted solely of the employee placing her fingers on a patient‟s forehead and pushing it back while speaking in a loud voice. In its decision the court noted the “distinction” in degree of seriousness between this particular employee‟s misconduct and that of the health care worker involved in Matter of Ford v. Civil Service Employees Association, wherein the court ordered the vacation of an arbitrator‟s order of reinstatement under circumstances where a patient was sexually abused.50

F. Whether Misconduct Involves Integral part of Job Duties

A court is more likely to vacate an arbitration award ordering the reinstatement of an employee where the employee‟s misconduct involves an integral part of his/her duties, than where the misconduct is simply disfavored in the abstracts. Contrast for example the misconduct of an air line pilot charged with flying an airplane while intoxicated (Delta Air Lines, Inc. v. Air Line Pilots Association – arbitrator‟s reinstatement order vacated),51 with the misconduct of a highway employee charged with storing a handgun in his locker (Massachusetts Highway Department v. AFSCME – reinstatement order upheld).52 See also Bureau of Special Investigations v. Coalition of Public Safety wherein the Supreme Judicial Court of Massachusetts set forth its standard for reviewing arbitration awards ordering the reinstatement of public employees and specifically stated that for a court to vacate a

48 Shopmen‟s Local 539 v. Mosher Steel Co., 796 F. 2d 1361 (11th Cir. 1986) 49 Illinois Nurses Assoc. v. Board of Trustees of the University of Illinois 318 Ill App. 3d 519 (2001) 50 In the Matter of Ford v. Civil Service Employees of the University of Illinois, 318 Ill. App. 3d 519 (2001) 51 Delta Air Lines, Inc. v. Air Line Pilots Association, 861 F. 2d 665 (11th Cir. 1989) 52 Massachusetts Highway Department v. AFSCME, 722 N.E. 2d 441 (2000)

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reinstatement order the disfavored conduct in question must be “integral to the performance of employment duties” and not merely disfavored conduct in the abstract.53

G. Whether the Employee’s Misconduct Results in Actual Injury Damage or Merely Threatens Damage

In deciding whether to vacate an arbitration award involving reinstatement of an employee, a court will undoubtedly be influenced by the outcome of the employee‟s misconduct. If actual injury/damage results, as opposed to merely threatening injury/damage, then vacation is more likely. Contrast County of DeWitt v. American Federation of State, County and Municipal employees, Council 3154 wherein an Illinois court vacated an arbitrator‟s decision reinstating an employee who actually struck a nursing home resident in the head with City of Palo Alto v. SEIU, wherein a California court upheld an arbitrator‟s reinstatement of a city employee who verbally threatened violence against a supervisor, but did not make actual physical contact and/or cause bodily injury.55

Obviously, the likelihood of prevailing in a particular case is a major factor for an employer to consider before embarking on a challenge to an arbitration award based on public policy. Another factor that must be considered though is the reality that the process to challenge an arbitration award is typically long and costly in terms of attorneys‟ fees. While the challenge is being prosecuted, uncertainty prevails. Additionally, the public employer has continuing back pay, interest and other exposure in cases where it has refused to implement the award and is challenging a reinstatement order and other make whole remedies. And, of course, the union will usually go to its members and/or the media and claim the public employer is acting wrongfully and in bad faith by challenging a “final and binding” award.

CONCLUSION

Many factors militate against challenging an adverse arbitration award on public policy grounds. On the other hand, challenging an arbitration award on public policy grounds is one of the few recognized ways to obtain review of an egregious arbitration award. This factor may in some cases outweigh the numerous negative factors, particularly where an arbitrator has ordered the reinstatement of an employee believed to present an unreasonable risk to the public. If the public employer has any reasonable chance of success in vacating an adverse award, then the risks associated with bringing such a challenge may be worth taking. Caution is advised, however!

53 Bureau of Special Investigations v. Coalition of Public safety, 722 N.E. 2d 441 at 444-45 (2000)

54 County of DeWitt v. American Federation of State, County and Municipal Employees, Council 31 298 Ill App. 3d 634 (1988)

55 City of Palo Alto v. SEIU 91 Cal Rptr 2d 500 (1999)

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Grievance-Arbitration for the Beginner or

Why Did I Take This Job and What Should

I Do Now?

NPELRA - Labor Relations Academy Final Paper

Submitted by: William e. Mahoney, Director Human Resources

Town of Enfield, 820 Enfield Street, Enfield, CT 06082 / (860) 253-6346

wmahoney@enfield.org

Congratulations on your new job. Now hang on as the ride is going to get bumpy! There are many responsibilities for the new labor relations practitioner. One of the most difficult is grievance-arbitration. An entire bargaining relationship can be defined, compromised or undermined depending on how well you enforce your contract. Grievance-arbitration, when not properly prepared for, can have the devastating effect of removing a hard-earned right or privilege secured at the negotiating table. This paper is intended to give the novice practitioner some insight into the grievance arbitration process.

What is grievance-arbitration?

In an effort to redress employee concerns, management and labor have for many years endeavored to create a process that would give aggrieved employees the right to be heard on their grievances and present them to management for resolution. If the union or employee were not satisfied with the employer‟s decision, the parties in many instances have agreed to allow a neutral third party to hear their concerns and impose a binding resolution on the union, employee and employer. This process is usually referred to as “binding grievance arbitration” and the parties must live with the decision unless there is an appeal to the courts. The theory supporting this process is that employees will not resort to self help, businesses and governments will continue to operate and not suffer a strike while a grievance is pending resolution and the courts will not be overwhelmed with thousands of labor cases. The United States Supreme Court in Steelworkers v. Warrior and gulf Navigation Co. 80 S.Ct. 1347 (1960) clearly expressed its preference for arbitration as the favored way of resolving labor disputes under a collective bargaining agreement as opposed to resorting to the courts.

Many states have a state agency tasked with providing mediation and arbitration services to public sector (and some private sector) employers. These agencies usually have promulgated rules and procedures for presenting arbitration cases. New practitioners should contact this agency and request a copy if its rules.

In states where there is no state agency for resolving grievances, or pursuant to your collective bargaining agreement, a new practitioner may find him/herself appearing before the American Arbitration Association (AAA). This organization is a private sector group that provides mediation and arbitration services to both public and private sector clients for labor issues and other matters. If there are references to AAA in your contracts in the grievance arbitration article it would behoove you to contact AAA and request a copy of their rules. There is an initial filing fee of $150.00 (for each side) and then each side typically pays one half of the per diem and travel costs of the neutral arbitrator. Many arbitrators are full time professionals with fees amounting to $1,000.00 per day.

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One of the distinctions between AAA and state agencies that provide arbitration services is that with AA you may have more control over who is appointed to your case. Many states simply assign an arbitrator to hear your case regardless of that arbitrator‟s track record. AAA will provide you with a list of arbitrators and biographies of each. Each arbitrator with whom you are not comfortable should be stricken from the list and the remaining ones rated in order of preference. Take the time to discuss the selection of an arbitrator with other management professionals. They may have had experience with some of the arbitrators on your list and can share with you, how they approach issues such as arbitrability, discipline, and contract interpretation. When striking arbitrators from an AAA list, strike at will. Only retain those you are convinced will give you a fair hearing. If there is no match from your list with the union‟s list, AAA will issue a second list. If there are still no matches with the union, then AAA will begin the administrative appointment procedure. There are also professional services that track arbitrators and, for a fee, will inform you of how an arbitrator has ruled in specific areas in the past. Be sure to check with AAA to see if the union has submitted its list in a timely manner. It they have not, and they have exceeded the one-week extension period, you are entitled to your first selection.

Many states and the AAA allow for panel arbitrations, but those rules vary from state to state. Your contract with the union may require panel arbitrations which allow for the union to select one panel member, the employer to select a second member and the third member to be selected either by the two panel members, the advocates, the state agency or in accordance with the AAA rules discussed above. A panel arbitration adds one more step to the resolution process. After ran arbitration case has been presented by the advocates and briefs have been filed, the panel members will meet to discuss the merits of the case. The select4ed panel members typically argue for their respective sides and try to influence the neutral member to vote in favor of their position. The typical result of a panel arbitration is a 2-1 vote. Don‟t become discouraged when you don‟t get a 3-0 vote. You are not supposed to!

What is a contract?

A contract is a binding legal document that specifies the rights and responsibilities of the parties to the agreement. In labor relations parlance, a contract is a collective bargaining agreement between a labor organization (union) and an employer. Contracts are often divided into articles and sections. Articles cover various topics and sections cover sub-topics of the article. A typical contract will contain many of the following articles.

Recognition. This article defines the bargaining agent recognized by the employer, and the type of employees included in the bargaining unit. The bargaining unit is created through the filing of a petition for recognition with the state public employee relations board (PERB) and is defined by the PERB prior to commencing bargaining. The import of this article is that unions may file grievances for people they do not represent. This issue must be raised early by an arbitrability challenge prior to the arbitration case being heard in order to preserve your right to object to the arbitration going forward.

Management Rights. Prior to a union organizing its workers, management controlled rights in the work place. When the parties enter into their first collective bargaining agreement, management, in effect, is ceding some of those rights to others (for instance the right to unilaterally resolve employee complaints). The “Management Rights” article specifically states what rights are reserved to the employer and recited a list of those rights,

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or generally describes the area by providing that management reserves its right in all the typical management area. The current trend is to enumerate reserved rights with an exhaustive list of subjects followed by a catchall paragraph for items not included. A practitioner should cite this language if the action taken by the employer is clearly a reserved right.

Union Security. This article provides for the withholding of union dues or an agency fee from an employee‟s paycheck and may condition continued employment on the employee either joining the union or paying the agency fee. This article may include a section wherein the union agrees to hold the employer harmless for the deduction of dues and indemnify the employer if the employer incurs any losses as a result of compliance. If your contract does not have this “hold harmless” language, you should include it. Be aware that even though an employee is not paying dues to the unin (and might not be paying an agency fee) they are still entitled to union representation as long as they are in the bargaining unit covered by the contract.

Probationary Period. This article defines when an employee completes his/her probationary period. The significance of this article is that most employees on probation may be discharged or disciplined without recourse to grievance-arbitration. Additionally, some contracts provide that benefits will not accrue to, or cannot be utilized by, probationary employees. Before one proceeds to arbitration (especially in a discipline case) an employee‟s date of hire must be reviewed to determine his/her status. To emphasize an arbitrability claim must be made early in the process to preserve the employer‟s rights.

Maintenance of Benefits. A contract provision with language “maintain all benefits not explicitly recited in the contract” is a past practice clause. Arbitrators historically give weight to such clauses. Such language can become a major impediment to the effective management of government. As an advocate for an employer, this language should not be conceded to a union in negotiations as the parties will soon find themselves arbitrating whether or not something is a past practice.

Grievance Procedure. This article should spell out what a grievance is and how it is processed. The grievance procedure ideally will state that a grievance is only an alleged violation of the contract. Hopefully, it will not contain language making an alleged violation of a past practice, or extraneous policies, subjects of the grievance procedure. If a contract has a narrow grievance definition and the union advances a grievance to arbitration on an issue that is beyond the scope of the definition, be sure to challenge the arbitrability of the grievance. The grievance procedure usually contains several steps identifying who can file the grievance and at what level of management. The contract should clearly set time limits on when a grievance must be filed and answered. These dates are critical. An employer should instruct supervisory staff to comply with the response dates to protect the employer if the employer challenges the arbitrability of the case on a procedural basis. If you identify an arbitrability challenge, be sure to deny the grievance at your level giving the reason why it is being denied and state that the grievance is not arbitrable.

Set up a computer database of every grievance you have inherited and all the new ones that you receive. This database should include: (1) when the grievance was received by your office; (2) when you heard it at your step (if you are responsible for labor relations in your organization, you should

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be the last step before arbitration); (3) when you answered it; (4) when it was filed for arbitration; (5) if there is an arbitrability claim, how you have raised it and; (6) the current status of the grievance. Date stamp each grievance to show when it was received. Create a system so that you can demonstrate when you responded. Create a separate file for each grievance and include it in all relevant information.

Mediation

Many states have a mediation procedure for grievances wherein a neutral mediator meets with the parties to discuss a grievance and explore options to settle it. Mediators do not make findings and do not testify in arbitration procedures. Mediators often meet with the parties first in a joint meeting and them separately. They will attempt to get behind the issue and reach the parties‟ respective interests. In doing so they can try to fashion a remedy satisfactory to both parties. There are many occasions where a mediator‟s intervention is critical. Mediation can be viewed by either party as the last attempt to resolve the matter voluntarily before a neutral arbitrator imposes a binding resolution on the parties.

Arbitration

Unions have the right to file for arbitration when the grievance procedure, and perhaps mediation, have failed to deliver the desired result. When the claim is filed, the employer‟s representative should check to see if the union‟s filing for arbitration was performed in a timely manner. If they failed to file on time, a challenge to arbitrability based on procedural grounds should be filed. Check your state rules or AAA to ensure that you are filing the challenge with the right parties and are meeting their requirements. In Connecticut, for example, the state recently changed the rules: now a detailed explanation must be given to the union detailing the basis of your challenge. Similarly, if the union has advanced a grievance to arbitration that you believe is not a proper subject for arbitration; a challenge can be brought regarding the union‟s right to be heard on substantive grounds. Review the applicable state/AAA rules for proper filing of your challenge. The United States Supreme Court in Steelworker‟s Trilogy found a presumption in favor of cases being arbitrable when substantive challenges are filed, but it is a rebuttable presumption. Note especially that the presumption does not extend to procedural challenges. With respect to the procedural claim, you must come to the table with “clean hands”. The union may argue that if the employer responded late to a step in the procedure, then the union should be allowed leeway. Train your supervisors on the importance of complying with the contract when they are answering at their steps. Essentially, when an employer challenges the arbitrability of a case, the rationale is that the arbitrator(s) does not have jurisdiction over the case. The argument on a procedural challenge is firmly rooted in the contract: the parties agreed to the procedure to be followed for a case to be heard. Failure by the union to adhere to that procedure removes jurisdiction from the arbitrator or arbitration panel.

The following key points are offered to the practitioner preparing for arbitration:

Fully understand the issue the union is raising.

Research the issue in your organization‟s files to see if the matter has been raised by the union before. If so, how was it decided?

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How has the organization addressed the same fact pattern in the past? Can this be demonstrated to an arbitrator?

Has the arbitrator ruled on similar issues before?

Has the contract changed in this area over the years?

Who are the witnesses the employer will call to bolster its case?

Who will the union be likely to call and what do you expect their testimony to prove?

Meet with your witnesses to discuss the case and let them know what you are going to ask them and discover how they will answer.

Review the documents that you intend to offer with your witnesses so they are familiar with them. It may have been a year or more since the witness has dealt with the document.

Show the arbitrator(s) that you take the matter seriously by being prepared. Make the appropriate number of copies for the arbitration panel, one copy for your adversary, one for yourself and an extra for your witness. Prepare a written proposed issue for submission on the day of the hearing. If you have challenged arbitrability, that should be the first issue. “Is this matter arbitrable?” is an appropriate issue. Use a separate sheet of paper to draft the issue on the merits.

On the day of the hearing, be prepared to provide a copy of your definition of the issue in writing for the arbitrator or panel, your adversary and yourself. You may wish to bifurcate the issue of arbitrability from that of the merits. If you opt to do this, you may only have to present your case on the issue of arbitrability that day. However, different arbitrators and state agencies approach the issue of bifurcation differently. Some will allow this and others are inclined to demand that the issue be heard prior to, but on the same day, as the issue on the merits. Some management advocates believe that by separating the issues it is easier for the arbitrator to give the arbitrability question the full weight it deserves and that an arbitrator shouldn‟t be prejudiced by hearing the facts of a case over which, in the end, he/she may not have jurisdiction. Others favor hearing both issues on the same day to save time and expenses. The author favors bifurcating the issue of arbitrability from the case on the merits where this is appropriate.

The parties to the arbitration should be given the opportunity to frame the issue. Provide your opponent and the arbitrator or panel your proposed written submission of the issue. If the parties cannot agree, then the panel will decide the issue after hearing from both parties. A back-up is issue that is usually safe from an employer‟s point of view is “Was the contract violated as alleged in the grievance? If so, what shall the remedy be?” this issue definition prevents the union from trying to change the grievance/issue at the arbitration table and focuses the arbitrator on the contract rather than some “extraneous right” the union argues entitlement to.

Once an issue is established, the parties are asked for joint submissions of documents. The employer should prepare as many of the documents as possible. This demonstrates that the employer takes the process seriously and is in charge of the proceedings. The contract should be offered as a joint exhibit, as well as the grievance, the answers to the grievance at the various steps and the demand for arbitration. Strategically there may be reasons to offer additional documents. If the union agrees to

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submission of these documents, they are entered into evidence without the need for substantiation. If the union objects to the joint submission of a document, the employer will need a witness to verify the document and explain its significance. You should object to any prejudicial documents the union wishes to submit as joint exhibits.

After the issue(s) has been identified and joint exhibits have been marked, the case will be ready for presentation. The moving party presents its case first. On most issues, the union proceeds first as they are alleging that the contract was violated. On disciplinary actions, the employer presents its case first. The burden of proof is on the moving party. The quantum of proof is an unsettled area in arbitration. Some arbitrators may require proof beyond a reasonable doubt in a discharge case, but most will use a lesser standard. (How Arbitration Works, 5th Ed., Volz and Goggin, p.906 (1997). Other treatises on the subject of quantum of proof indicate that a fair preponderance of the evidence is the appropriate level in a contract case, whereas clear and convincing evidence is the appropriate level in a discipline case. (Labor and Employment Arbitration, 2d Ed., Bornstein, Gosline, Greenbaum, Sec. 5.06[1], (1999). The moving party may make an opening statement explaining what the case is about and how the evidence they will offer supports their position. The other party may make its opening statement after the moving party, or may reserve presenting an opening statement until they put on their case after the moving party has completed its case in chief.

Witnesses are called by each party and are subject to cross-examination and examination by the arbitrator/panel. Although the rules of evidence are relaxed in arbitration, certain basic standards prevail. Irrelevant documents and testimony will not be allowed. However some arbitrators will accept most anything proffered by a party “…and give it appropriate weight”. At the conclusion of the case each party may make a closing statement. Instead, the parties may opt to write closing briefs which are submitted to the arbitrator/panel members and your adversary within an agreed-upon time period. Some jurisdictions allow the opportunity to write reply briefs in which an advocate can take issue with points raised n his/her adversary‟s brief.

Because there are no absolute rules to arbitration, some parts of the procedure may vary from jurisdiction to jurisdiction. Some states allow for “bench” decisions in which a party may receive a ruling from the panel or single arbitrator on the same day. Most cases are not bench decisions and written decisions are eventually issued. Although the entire process appears time-consuming, it is faster and less expensive than litigation.

Conclusion

Grievance-arbitration is not an exact science. Rules, practices and customs vary from state to state, level of government, collective bargaining agreement and of course, the arbitrators selected. It is for this reason that this paper contains words such as “usually”, “should”, “most”, “some”. Make is a core part of your career to learn from others in the field. There are many great management mentors willing to help you and give you advice. Seek them out. The road may be bumpy, but as you practice your craft and learn from your predecessors you‟ll smooth out those trouble spots.

February 28, 2000

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Problems Regarding Contract Construction

Problem #1

The City recently entered into an employee empowerment process with the advice and consultation of the Union. Decisions within a “work group” were to be made by consensus once all the employees were trained in the process.

The existing CBA allows for the “...the Department to contract-out extra workload to qualified vendors, provided such out-sourcing does not reduce employment and/or employment opportunities within the Department, including loss of overtime.” The same contract has a management‟s rights clause which included the right of the City to “…direct the work force, determine staffing patterns, and to contract out work within the limits of the law and contract.”

John Calistrant‟s work group reached consensus on having vendors do the overflow work within their division instead of hiring additional personnel. Although John originally disagreed with the plan, he “stood aside” in order for consensus to be reached. Within the first two months John‟s overtime was reduced by 50%, and would likely not increase with the new plan. John filed a grievance based on the above language. His co-workers are upset with him and view his actions as a violation of their new working relationship.

A. Which rules of contract construction apply? How should you respond to this grievance?

B. Assume the language on contracting out did not include the phrase “including the loss of overtime,” and assume further that the Union representative who drafted this phrase intended it to include the loss of overtime, even though the same representative failed to mention this intent to the City’s negotiation team.

Currently both parties are aware of existing practices for the last two months, which include the concept of overtime loss when outsourcing work in all the departments.

What rules now apply? How would you respond?

C. What if the Union representative had clearly spoken her intent at the negotiation table that the term “employment opportunity” included any loss of overtime? And at the same time, it was discovered that the practice regarding overtime loss varied within each division and department, and was unknown to the Union until Calsitrant’s grievance?

Which rules? What response?

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D. What if the language did not refer to loss of overtime, and both negotiating parties knew that overtime was not contemplated by either party at the time of agreement?

Problem #2

When supervisor Fareplae arrived at his office on Monday morning an envelope appeared on his desk entitled “Grievance of J. Femme Regarding violation of Affirmative Promotion Policy.” The grievance did not cite a provision of the CBA as being violated, but did allege that J. Femme was denied a supervisory promotion outside the unit which should have been hers by application of an outdated but existing policy. The CBA does not contain a non-discrimination clause. Of the current supervisory staff, all seven are male. Forty percent of the non-supervisory employees are female.

A. Advise Fareplae in his response

B. Assume that the decision regarding the promotion was made on September 21, and the grievance was not filed until December 8. The labor Contract (CBA) grievance procedure has a provision which requires the grievance “…to be filed within 15 work days from the date the grievant either knew or should have known of the violation of the CBA.”

Would you revise your response?

Problem #3

The CBA contains the following provision regarding light duty that has remained unchanged for a number of years:

“Where an injured employee’s treating physician authorized by the Agency recommends a light-duty assignment, it will be the responsibility of the appointing authority to arrange suitable light duty. The Human Resources Department will provide technical assistance in finding light duty which accommodates the particular restrictions noted by the treating physician.”

John Delatore filed a grievance when he was denied light duty for a temporary, non-industrial injury. The Agency‟s appointing authority could not find any suitable work within the department which would fit Delatore‟s restrictions. Neither could the HR Department. The Agency contends that the above language does not mandate light duty in every instance, especially when all the light duty slots are filled, the Delatore‟s temporary restrictions do not fit any functions that the Agency can use. Therrefore there is no “suitable” light duty.

Delatore and the Union can show undisputed past instances of other employees with similar restrictions who have been accorded light duty.

Which rules would you apply in responding to Delatore’s claim?

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138

Exercise #1: Drafting a Response to a Grievance

Greenwood County

Background Keith Richards recently retired from his position as an Accountant with the County of Greenwood. For the eight months before he retired Keith voluntarily assumed additional unrelated responsibilities with the County as a Contracting Entrepreneur, doing work with the Information Services Division. Keith was skilled in working on computer systems and networks, so it was natural that he took on this additional work on weekends and in the evenings. Most of the work could be done from Keith’s home computer. The Contracting Entrepreneur Program was the brainchild of the County Manager, who wanted to provide the County with a cadre of employees for the Director of Information Services for overload work and emergencies, in lieu of hiring more full time staff or contracting out the work. This concept was accepted by the union representing the white collar workers, and the parties negotiated a bidding process for taking on IS projects. Because none of the entrepreneurs worked in the IS Department, the bidding process required the posting of each project with the description and established payment for the project. The bidders were selected on a rotating basis, project by project. Keith Richards got the bid for an eight-month project paid at $1,500 per month, subject to project completion verification. He chose the additional work for the last eight months specifically to enhance his retirement. With his accounting supervisor, Keith discussed his assumption that the additional IS work would be creditable under the Greenwood County Retirement System (GCRS), the County’s pension fund. Keith’s supervisor confirmed the assumption that the entrepreneurial work was creditable even though he did not check the assumption with any superior or any officer of the pension fund. Neither Keith nor his supervisor knew that the GCRS had always treated entrepreneurial pay as a stipend or a bonus, neither of which is creditable for retirement pay.

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The Grievance The County recently received a grievance filed by the union and Keith Richards. The grievance claims that the County should increase Keith’s retirement pay to include the $1,500 paid each of the last eight months before his retirement. Keith retired January 3, 2008, and received his first pension payment February 2, 2008. (See attached grievance) You have been delegated the responsibility for responding to the grievance at level III, the level before arbitration. The grievance was just handed to you. Because the response is due tomorrow, you will not have the luxury of an additional investigation or a discussion with the union representative. (Do not assume additional facts, and do not assume any dispute regarding potential FLSA issues. At each table draft a level III response to the grievance.

Additional Information

Contract Provisions 23.2 Entrepreneurial Bidding And Pay

Those unit members who have previously qualified to do Information Services work may bid on any posted project, as long as the additional work is not done during the unit member’s regular work hours and does not interfere with the employee’s regular duties and responsibilities. The pay for each project will be determined by the Director of Information Services, and will be posted along with the description of the project. If more than one unit member bids, the work will be offered on a rotational basis. If no bids are received, the DIS may withdraw the project and repost it with a different amount of pay.

7.8 Assignment Of Work

Unit members' work will be assigned and directed by their supervisor. If a unit member has doubt about whether an activity is job-related, the unit member is responsible for seeking the supervisor’s assistance before undertaking any activity not clearly falling within the established responsibilities of the unit member.

3.4 Definition Of A Grievance

3.4.1 A grievance is a claim filed by a unit member or the GCEA alleging a misapplication or violation of this agreement by the County.

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3.4.2 A grievance must be filed within thirty (30) calendar days of the event or events giving rise to the claim, or within thirty (30) days of when the grievant knew or should reasonably have known of the events giving rise to the claim.

5.8 Pension Benefits

Unit members will receive retirement benefits as established under the Greenwood County Retirement System. The County is responsible for making the employee’s contribution and for deducting the employee’s contribution from the employee’s pay and forwarding it to the GCRS.

Other Facts

The GCRS has always treated entrepreneurial pay as a stipend or bonus. The County has followed this lead, and has not varied from this practice since the pay was first put into effect four years ago.

The County did not deduct from the Grievant’s pay an amount to cover contributions for the entrepreneurial pay; nor did the County make any contribution for this stipend.

In an informal and brief discussion, the Grievant’s accounting supervisor agreed with the Grievant that the entrepreneurial pay would count toward the final retirement payout.

The negotiating parties agreed to Section 23.2 four years ago. Several County negotiators recall a general discussion about whether this pay would be subject to GCRS. But the County clearly stated that this was an issue to be decided by the GCRS Board, and not through negotiations, and they doubted whether this pay would be creditable. After this exchange, the parties signed off on this section.

The Union President admitted that she first discussed this claim with Keith Richards on April 15, 2008.

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Greenwood County Employee Association Grievance Form

This form is to be utilized by the grievant when a grievance is filed at Level I. If additional information is needed, attach additional documents.

Date Filed: June 2, 2008 Name of Grievant: Keith Richards Assignment: Accountant – IS Entrepreneurial Project 1. The provision(s) of the Contract involved in the grievance: Article 23.2 (Entrepreneurial

bidding and pay); and Article 7, Section 7.8 (Assignments)

2. Statement of the circumstance involved: My retirement pay did not reflect my total pay from

the County. My supervisor directs my work and I relied on his promise that my entrepreneurial

IS work would count toward retirement. Otherwise I would not have taken the additional work.

3. Date the alleged grievance occurred: _________________________ 4. Remedy sought: Increase in pension to reflect my final pay in the County. Signature of Grievant: _____________________________________________Date: _________

Response by Immediate Supervisor: Grievance denied, no violation of the contract

Signature of Immediate Supervisor: __________________________________Date: _________

Response by Department Head: Grievance denied, no violation of the contract Signature of Department Head: __________________________________Date: ____________

Appeal to Level III – Human Resources and Labor Relations Director

Response by HR and LR Director: _________________________________Date: ___________

____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

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Exercise #2: Analyzing Contract Language

A LONG-WEEKEND DILEMMA

The day after Thanksgiving is a double-collection day for Refuse Collectors

in the City of Centerville. It is not a holiday so employees receive time and one-half after completing eight hours of work, and the shift generally lasts twelve hours.

Last year the Department was unable to pick up all of the refuse because

there were so many single-day vacations and sick call-ins that they could not staff all trucks. As a result, management decided not to grant more than two employees vacation leave this year and in early November sent out a memo stating this decision. The Union immediately filed a class-action grievance, based upon the following contract language:

“Article 10, Section 2: Vacation leave shall be granted on a first request

basis except when three (3) or more employees who are in the same classification and division request the same day/days off, seniority will be the decisive factor. An employee shall be allowed to take his/her vacation entitlement in increments of one day or less.

The above vacation leave requests shall be subject to the operational needs of the department.”

The City states that in granting up to two vacations on a “first request basis”

they are correctly following the contract. As for the memo, the contract language clearly indicates that any vacations may be denied, based upon the operational needs of the department.

The Union believes the language means that the City must grant at least

three (3) employees vacation leave, as single-day vacation is an entitlement – and this has been the past practice for many years. They argue that the City cannot determine that there will be any operational needs in the division, and offer as a “solution” that employees on vacation can recruit a colleague to fill in for them.

Discuss at your table: Who is right? Re-write the contract language to provide clarity and avoid ambiguous contract language that relies on past practice.

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Exercise #3: Selection of an Arbitrator

Grievance #: SEIU 10-009,10 Grievant: Tina Reeves

Agency Representative: Larry Jones SEIU Representative: John Steward

State Mediation Conciliation Service List:

Thomas Dickenson

Sonja Gonzalez

Alice Nelson

Sara Ling

Kurt Jenson

Background Information

Thomas Dickenson

Graduate of Harvard, BA 1971 and Georgetown University, JD 1975.

Formerly Regional Attorney, FMCS (1985-90), Field Attorney, NLRB (1980-84),

private practice (1976-80).

Experience in private and public sectors with all labor relations issues. On

permanent panel for California Teachers Association, PGE, and County of

Sacramento.

Published Awards to Employer: 21 (including discharge for insubordination,

incompetence, suspension for profanity, suspension for vehicle accident, seniority,

step advancement, contracting)

Published Awards to Union: 5 (Including mitigation of discharge for theft, discharge

for out of route, suspension for misuse of time, timeliness of grievance, overtime,

holiday pay)

Per Diem Fee: $1,150

Sonja Gonzalez

Graduate of University of California San Francisco, BA 1979.

Formerly Labor Relations Director, (1983-92) and Labor Relations Manager, (1980-

82)

Pacific Bell. Author, cartoonist and illustrator for several books.

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Experience in private sector with issues involving discipline and contract disputes.

On permanent panel for California Telephone Association, PGE, Hollywood

Cartoonist Association.

Published Awards to Employer: 15 (Including discharge for absenteeism, discharge

for conflict of interest, suspension for abusive language, overtime pay, vacation pay

in lieu of time off)

Published Awards to Union: 11 (Including discharge of accident-prone employee,

arbitrability of demand for reinstatement, denial of leave for professional

conference, merit pay)

Per Diem Fee: $950

Alice Nelson

Graduate of University of Southern California, BA 1965, and JD 1967.

Formerly Attorney for SEIU, Western Region (1985-89), Attorney for Teamsters,

Local 1900 (1979-84), private practice with Menace & Associates (1968-78). On

permanent panel for AAA, FMCS, Food Employer Council, SEIU.

Experience in private and public sectors. Has arbitrated over 200 cases involving

numerous issues. Some cases not published.

Published Awards to Employer: 59 (Including letter of warning for insubordination,

discharge for theft, suspension for out of route, pay date for uniform allowances,

sick leave eligibility)

Published Awards to Union: 94 (Including discharge for excessive disability leave,

eligibility of FMLA, reinstatement of ADA reasonable accommodation, arbitrability,

holiday pay, merit pay)

Per Diem Fee: $1,000

Sara Ling

Graduate of Arizona State University, BA 1958, MA 1959, and Stanford, JD 1965.

Formerly Fact Find for Southern California Rapid Transit District, (1978-79), Los

Angeles Transportation Commission, (1975-77), Civil Service Commissioner, City

of Phoenix, (1971-76).

Experience in public sector. Issues arbitrated include discipline, job classification,

benefits, promotion, sick leave and seniority. On permanent panel for AAA, FMCS

and City of Los Angeles Employee Relations Board.

Published Awards to Employer: 44 (Including discharge for safety violations,

suspension for tardiness, suspension for customer complaint, out of class work

assignment, differential pay)

Published Awards to Union: 39 (Including discharge for theft, suspension for out of

route, retention of junior employee during layoff, shift assignment, arbitrability,

compensation)

Per Diem Fee: $1,100

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Kurt Jenson

Graduate University of Illinois, BS 1973, Loyola University MS 1974, Columbia

University Ph.D. 1977.

Professor at Stanford University, (1982-present), Adjunct Professor University of

Virginia (1978-81). Board of Directors, Petco.

Experience in public and private sectors. Has arbitrated over 100 cases involving

discipline, discrimination, benefits, contract terms, management rights, past

practice, subcontracting, transfers, and others. On permanent panel for AAA,

FMCS, CTA and Cal. Community Colleges.

Published Awards to Employer: 48 (Including discharge for falsification of expense

account, suspension for unsatisfactory work, timeliness of grievance, assignment of

breaks/lunches)

Published Awards to Union: 59 (Including discharge for substance abuse,

suspension for poor work performance, letter of reprimand for attendance,

subcontracting, seniority provisions)

Per Diem Fee: $1,300

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Activity #1

Issue: Denial of Salary Step Advancement

The grievant, Tina Reeves who is a truck driver in the Department of Public Works,

was recently given a performance evaluation with a less than satisfactory rating.

This low rating resulted in the grievant being denied advancement to the next salary

step until a satisfactory rating is achieved.

State Mediation Conciliation Service List:

Thomas Dickenson Sonja Gonzalez

Alice Nelson Sara Ling

Kurt Jenson

Activity #2

Issue: Ten-Day Suspension For Out of Assigned Area

The grievant, Tina Reeves who is a truck driver in the Department of Public Works,

was recently given a 10 day suspension for driving her Public Work’s vehicle out of

her assigned area for a personal shopping visit.

State Mediation Conciliation Service List:

Thomas Dickenson Sonja Gonzalez

Alice Nelson Sara Ling

Kurt Jenson