By Franckiewicz, Matthew M.
Dispute Resolution Journal , Vol. 57, No. 3
To present a case successfully in a courtroom, one must adhere to the formal rules of evidence. This is not necessarily so in the labor arbitration setting, where parties
are not required to conform to such rules and the arbitrator decides the relevance of evidence at
hand. However, author Matthew Franckiewicz posits in the following article that a working
knowledge of the rules of evidence is very useful in a labor arbitration
proceeding as well. His article focuses on some of the Federal
Rules of Evidence that are most applicable in labor
arbitration and also provides a list of
Most labor relations practitioners know that the formal rules of evidence applicable to court proceedings are not binding in arbitration. In this regard, Rule 28 of the American Arbitration Association's Labor Arbitration Rules provides in part, "The arbitrator shall be the judge of the relevance and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary."
There is at least some chance that an arbitrator's decision may be reversed by a court for excluding relevant evidence, but essentially no chance that the decision will be reversed for admitting evidence that would not be admissible in a court proceeding. Accordingly, many arbitrators respond to evidentiary objections by making relevance the standard for the admission of evidence. After all, the arbitrator can always disregard evidence that should have been excluded, but the arbitrator cannot consider evidence that should have been received.
Given that the arbitrator is likely to admit all relevant evidence, with possible exceptions for evidence that is covered by a legal privilege such as attorney-client privilege, and evidence of settlement offers, why should you bother to read any further?
First, nearly every labor arbitration case involves the introduction of documentary evidence. The documents may be as diverse as attendance records, statements prepared during an investigation, and notes taken during bargaining sessions. A basic grasp of the pertinent rules of evidence may prompt you to request and obtain evidence from your opponent that otherwise would not have been disclosed. Conversely, these same rules have implications about the materials you ought to have available at the hearing, in case the arbitrator directs you to provide them to the other party.
Second, while nearly all evidence is likely to be admitted, not all evidence is equally persuasive. The rules of evidence have been developed over the course of the centuries in recognition of the fact that some types of evidence are more reliable than others. A rudimentary understanding of the rules of evidence will provide you with some guidance about which witnesses to call, and how to question them (or how not to). A working knowledge of the rules of evidence suggests implications for your preparation before the hearing, and your presentation at the hearing.
Third, when confronted with an overly technical-minded opponent, your best counter moves may be based on your own knowledge that your opponent's evidentiary objections are not well founded.
This article discusses some of the rules of evidence most applicable to labor arbitration proceedings. It includes references to the applicable rules from the Federal Rules of Evidence, and a list of the pertinent rules. Since federal law governs nearly all private sector labor arbitration, to the extent that any rules of evidence apply to labor arbitration, the Federal Rules of Evidence are the pertinent standard. While state laws apply to arbitration under collective bargaining agreements involving state and local employees, for the most part state rules of evidence correspond to the Federal Rules.
Evidentiary Rules Relating to Documents
A. Documents Used to Refresh Recollection (Rule 612)
If an opposing witness refers to a document to aid his or her recollection while testifying, you are entitled to inspect the document, to question the witness about it, and even to offer it as your own exhibit (for example if the document contradicts the witness's testimony). …